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Judicial Watch • JW v State Hackett declaration 01242

JW v State Hackett declaration 01242

JW v State Hackett declaration 01242

Page 1: JW v State Hackett declaration 01242

Category:Legal Document

Number of Pages:40

Date Created:July 7, 2015

Date Uploaded to the Library:August 27, 2015

Tags:Benghazi Talking Points, Benghazi

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Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
U.S. Department State,
No. 1:14-cv-01242-RCL
Pursuant U.S.C. 1746, John Hackett, declare and state llows: the Director the Office Information Programs and Services (IPS)
the United States Department State (the Department). this capacity, the Department
official immediately responsible for responding requests for records under the Freedom
Information Act (the FOIA), U.S.C. 552, the Privacy Act 1974, U.S.C. 552a, and
other applicable records access provisions. have been employed the Department this
capacity since June 2015. Prior assuming this role, served the Acting Director IPS
since April and Deputy Director since April 2013. the IPS Director, authorized
classify and declassify national security information. make the following statements based
upon personal knowledge, which tum based personal review the records the
case file established for processing the subject request and upon information furnished
the course official duties. familiar with the efforts Department personnel
process the subject request, and charge coordinating the agencys search and recovery
efforts with respect that request.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
The core responsibilities IPS include: (1) responding records access requests
made the public (including under the FOIA, the Privacy Act, and the mandatory
declassification review requirements the Executive Order governing classified national
security information), members Congress, other government agencies, and those made
pursuant judicial process such subpoenas, court orders and discovery requests; (2) records
management; (3) privacy protection; (4) national security classification management and
declassification review; (5) corporate records archives management; (6) research; (7) operation
and management the Departments library; and (8) technology applications that support these
This declaration explains the Department search for records responsive the
REQUEST AND THE SEARCH FOR RESPONSIVE DOCUMENTS letter dated May 13, 2014, Judicial Watch (Plaintiff) submitted FOIA
request the Department requesting that the Office the Secretary produce the following
within twenty (20) business days: Copies any updates and/or talking points given
Ambassador Rice the White House any federal agency
concerning, regarding, related the September 2012 attack the U.S. consulate Benghazi, Libya. Any and all records communications concerning, regarding, relating talking points updates the Benghazi attack
given Ambassador Rice the White House any federal
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
See Ex. (Plaintiffs FOIA request, F-201 4-08848). correspondence with counsel for the Department, Plaintiff further clarified that
its request does not seek all records relating the attacks September 2012 Benghazi,
but rather only talking points and updates those talking points, not general intelligence
updates about the Benghazi attacks (unless those updates were sent furtherance developing updating talking points). See Ex. (Email from Ramona Cotca, Sep. 2014) (confirming
scope request).
When the Department receives FOIA request, JPS evaluates the request
determine which offices, overseas posts, other records systems within the Department may
reasonably expected contain the records requested. This determination based the
description the records requested and requires fami liarity with the holdings the
Departments records systems, applicable records disposition schedules, and the substantive and
functional mandates numerous Department offices and Foreign Service posts and missions.
Factors such the nature, scope, and complexity the request itself are also relevant.
Each office within the Department, well each Foreign Service post and
mission, maintains files concerning foreign policy and other functional matters related the
daily operations that office, post, mission. These files consist generally working copies documents, information copies documents maintained the Central Foreign Policy
This request was identically worded request previously made the Plaintiff and directed toward the United
States Mission the United Nations (USUN/W). This previous request was the subject related litigation, J3cv-00951, which the parties settled after the Department produced documents totaling 1,439 pages responsive
that request. See Ex.Cat (Judicial Watchv. State, (D.D.C. 13-951), FOlA Request Letter (Dkt No. 1)).
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
Records collection, and other documents prepared furnished the office connection
with the performance its official duties, well electronic copies documents and e-mail
Plaintiffs request specified that sought records only from the Office the
Secretary. Therefore, the Department tasked only the Executive Secretariat search for agency
records responsive Plaintiffs avowed construction its request that were generated between
September 2012, and September 23, 201 the day that the search was conducted.2
The Executive Secretariat (S/ES)
The Office the Executive Secretariat Staff (S/ES-S) responsible for
coordination the work the Department internally, serving the liaison between the
Departments bureaus and the offices the Secretary, the Deputy Secretary, and the Under
Secretaries. responsible for coordinating search responses for the Office the Secretary
State (S), the Office the Deputy Secretary State (D), the Office Policy Planning
(S/P), the Office the Under Secretary for Political Affairs (P), and the Counselor the
Department (C).
10. September 2014, Management Analyst who was knowledgeable both
the request and S/ES-S records systems conducted search ofS/ES-S electronic records systems
reasonably likely contain responsive records. These systems include the Secretariat Tracking
The immediate Office the Secretary comprised the Secretarys Chief Staff, the Counselor the
Department, Deputy Chief Staff, the Secretarys secretary, the Executive Assistant, special assistants, the
Secretarys scheduler, staff assistant, and personal assistants. This staff handles all the day-to-day matters the
Secretary, including meetings the Department, functions Washington and throughout the country, and travel
around the world.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
and Retrieval System (STARS),3 the Secretariat Telegram Processing System (STePS), the
Cable Archiving Retrieval System (CARS),5 and the Top Secret files (TS). These systems
search capabilities are wildcard-based, meaning that common variations the keywords being
searched would retrieved (e.g., search for directive would produce directives).
11. September 23, furtherance this process, S/ES-S also searched the email accounts three individuals-Cheryl Mills (Counselor and Chief Staff
former Secretary Clinton), Jacob Sullivan (Deputy Chief Staff for Policy former Secretary
Clinton), and Huma Abedin (Deputy Chief Staff for Operations former Secretary
Clinton}--within the Office the Secretary. These individuals were selected members the
Office the Secretary based their understanding which staff members within the Office
the Secretary during former Secretary Clintons tenure worked issues related the Benghazi
attacks and whose records may therefore reasonably expected contain responsive records.
For both the databases and the email records, S/ES used the search terms
Ambassador Rice USUN/W September 2012 attack Benghazi
Libya talking points TPs updates.
STARS automated system used track, control, and record documents containing substantive foreign policy
information passing to, from, and through the offices the Secretary State, the Deputy Secretary State, and
other Department principal officers. Original documents are indexed, scanned, and stored images STARS.
Information STARS covers the period 1988 the present.
STePS designed distribute cables among the Departments principals.
CARS designed provide access contemporary portion the Departments telegram archive deemed general interest.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
During searches the email records, well the STePs and CARS databases,
the search terms were appl ied each document, well attachments that contain searchable
text. During the search STARS, the search terms were applied descriptive abstract
attached each document. Each STARS abstract was created Technical Information
Specialist when the document was added the database; this abstract designed capture the
subject matter the related document. For documents from the time period relevant the
FOIA request, the abstracts are the only portions the STARS database whose text may
searched Similarly, during the search, the search terms were applied index files.
Each index entry, along with key words and topic description, was added Management
Analyst into the index. This index, rather than the full text the files themselves, can
The use between the search terms indicates that this was disjunctive
search; the terms listed would have retrieved any documents that contain (for email, STePS,
CARS records), whose abstracts indexes contain (for STARS and records), the word
Ambassador, for example, even the document, abstract, index contained none the other
search terms. These searches were completed September 23, 2014, and returned number
records, which were then reviewed for responsiveness.
15. addition, guard against the possibi lity that particular document was
overlooked, the Management Analyst also reviewed each the documents that were produced
Plaintiff from USUN/W, rather than the Office the Secretary, the related litigation described footnote above. The Management Analyst examined each sender recipient each
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
document produced that litigation; documents with recipient sender who was the Office the Secretary the time the email was sent were treated responsive.
16. result the searches email records, database records, and records
produced the prior related litigation described this paragraph, the Management Analyst
found four documents responsive Plaintiffs
FOIA request, all which had been previously
produced Plaintiff the related litigation described footnote Jetter dated November
11, 2014, the Department released one document full and three documents part. See Ex.
(Letter Nov. 12, 2014).
After the searches this case had been completed and the four responsive
documents delivered the Plaintiff, the Department received approximately 55,000 pages
hard copy emails and attachments emails, arranged chronological order, from former
Secretary Clinton.6 These records were provided her response earlier request from
the Department State that, fonner Secretaries their representatives were aware [were
to] become aware the future federal record, such email sent received
personal email account while serving Secretary State, that copy this record made
available the Department. See Ex. (Text Letter Former Secretaries State
Concerning the Federal Records Act 1950). The Deputy Directory ofS/ES-S applied the
same search terms described above, see 12, two PDFs containing scanned images subset these documents, specifically, the documents that were sent received after September
Former Secretary Clinton did not use email account.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
11, 2012, through the end former Secretary Clintons tenure January 31, 2013. For each
PDF, the Deputy Director entered search term individually into the Find command Adobe
Reader and navigated each occurrence the search term the PDF. The Deputy Director
reviewed for responsiveness each individual document that contained occurrence the search
term. This process was repeated for each search term listed above Paragraph 12.
responsive records were found.
Earlier this year, the Department sent letters Ms. Mills, Mr. Sullivan, and Ms.
Abedin, whose accounts were searched response this FOIA request. those
letters, the Department asked those individuals make available the Department any federal
records that they may have their possession, such emails concerning official government
business sent received personal email account while serving their official capacities
with the Department, there any reason believe that those records may not otherwise
preserved the Departments recordkeeping system.
All three individuals have responded those letters, through counsel, inform
the Department that they have begun the process searching for and providing the Department
documents their possession that may potentially federal records. That process ongoing.
20. June 26, 2015, counsel for Ms. Mills and counsel for Mr. Sullivan provided
the Department with number documents response the letters. attorney the
Departments Office the Legal Adviser has reviewed these newly received documents and
discovered one responsive document among those that had been provided Mr. Sullivan,
two-message email chain that mentioned the talking points the course larger discussion,
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
which has determined should withheld full pursuant FOIA Exemption See 25-27,
The earlier message that email chain forward email that was sent to,
among other people, former Secretary Clinton. Department attorney has determined that
was among the 55,000 pages provided the Department former Secretary Clinton. This
earlier message had been reviewed Staff the Office the Secretary during the process
described above Paragraph but deemed unresponsive because the references talking
points contained therein appeared about separate set talking points being developed
within the Office the Secretary for future use. was not clear from the face the earlier
message that one the references talking points was those that had been given
Ambassador Rice. Department attorney has determined that the copy the earlier message
included the document received from Mr. Sullivan identical the copy received from
former Secretary Clinton. However, the later message the email chain, which was not sent
former Secretary Clinton, made clear that one portion the earlier message had, indeed, been
discussing the talking points given Ambassador Rice.
FOJA Exemption 5-Deliberative Process Privilege
22. U.S.C. 552(b)(S) states that the FOIA does not apply to:
inter-agency intra-agency memoranda letters which would not available law party other than agency litigation with the agency ....
Exemption U.S.C. 552(b)(5), protects from disclosure information that
normally privileged the civi discovery context, including information that protected the
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
deliberative process. The deliberative process privilege protects the confidentiality candid
views and advice U.S. Government officials their pre-decisional deliberations related
policy formulation and administrative direction.
For example, certain information withheld this case reflects drafts materials
being prepared for senior Department officials, together with suggested revisions being offered Department employees. Disclosure material containing such deliberations material
which such deliberations are based could reasonably expected chill the open and frank
exchange ofideas and recommendations which Department officials are involved. would
severely hamper the ability responsible Department officials formulate and carry out
executive branch programs. Information one document this case, detailed below, has
been withheld the basis this exemption. Disclosure this information, which predecisional and deliberative, and contains selected factual material intertwined with opinion,
would inhibit candid internal discussion and the expression recommendations and judgments
regarding current problems and preferred courses action Department personnel with respect materials being prepared for senior Department officials. The withheld information is,
accordingly, exempt from release under Exemption U.S.C. 552(b)(5) pursuant the
deliberative process privilege.
FOIA Exemption 6-Personal Privacy
25. U.S.C. 552 (b)(6) states that the FOIA does not apply
Four documents were withheld part pursuant various FOIA exemptions. Counsel for Plaintiff has confirmed
via email that Plaintiff not challenging any the redactions the documents produced it. Ex. (Email from
Ramona Cotca, June 15, 2015). Therefore, this declaration only addresses the exemptions that apply the
document that was provided Mr. Sullivan June 26, 2015, which has been withheld full.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
personnel and medical files and similar files the disclosure which would
constitute clearly unwarranted invasion personal privacy...
Courts have interpreted the language Exemption broadly encompass all
personal information that applies individual, without regard whether was located
particular type file. The Department withheld only the domain names the personal email
addresses Jacob Sullivan, Cheryl Mills, and Philippe Reines under Exemption
Inasmuch the information withheld personal individual, there clearly privacy interest involved. required, therefore, determine whether there exists any
public interest disclosure and weight any such interest against the extent the invasion
28. United States Department ofJustice Reporters Committee for Freedom
the Press, 489 U.S 749 (1989), the Supreme Court laid down two rules for determining public
interest disclosure information involving privacy interest: (I) whether disclosure would
serve the core purpose for which Congress enacted the FOIA, 1.e., show what the
government to, and (2) that public interest means the interest the public general, not
particular interests the person group seeking the information. Accordingly, the identity
the requester well the purpose for which the information sought irrelevant making
the disclosure determination.
29. for all the information withheld pursuant Exemption have concluded
that (1) disclosure the information withheld would result clearly unwarranted invasion
personal privacy; and (2) disclosure the information would not serve the core purpose the
FOIA, i.e., would not disclose information about what the government to.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
Accordingly, have determined that the privacy interests clearly outweigh any public interest
disclosure the withheld information.
Document Description
Document C05831334 which discussed above, see~~ 20-21, three-page
intra-agency email exchange consisting two messages. The earlier message from Jacob
Sullivan former Secretary Clintons email address and Cheryl Mills (who
listed the address line) and has the subject Key Points. was sent September 29,
2012 :09 AM. The later message from Cheryl Mills Jake Sullivan and Philippe Reines
(Deputy Assistant Secretary State for Strategic Communications and Seruor Communications
Advisor Secretary Clinton) and has the subject Fwd: REVISED Key Points. was sent
September 29, 2012 PM. The bodies the messages consist drafts, composed
advisors former Secretary Clinton, proposed future communication from the former
Secretary member the U.S. Senate concerning various issues related the attacks
September 11, 2012 Benghazi. portion each draft consisted summary the talking
points that had been sent Ambassador Rice (although, explained above, see ~ii 20-21 the
Department did not realize that the earlier message included reference those talking points
until the Department received and reviewed the second message the email chain). The
Department has withheld the email chain full under FOIA Exemption pursuant the
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
deliberative process privilege and the domain names associated with the private email addresses Ms. Mills, Mr. Sullivan, and Mr. Reines under Exemption
31. non-final drafts, the bodies these messages consist their entirety
information that pre-decisional and deliberative nature. Release this material could
reasonably expected chill the frank deliberations that occur when senior staff are preparing
points other draft remarks for use senior Department officials addressing matter
public controversy. The material therefore exempt under FOIA Exemption U.S.C.
552(b)(5) pursuant the deliberative process privilege.
Inasmuch the information withheld under Exemption the email chain
identifies specific individual, personal privacy interest exists the information. Therefore, now required determine whether there exists any public interest disclosure and,
public interest implicated, weigh any such interest against the privacy interest determine
whether disclosure would constitute clearly unwarranted invasion personal privacy.
Any individual, including U.S. Government employee, has privacy interest
his her personal email address because the release this information could result
harassment unwanted attention. Moreover, the release the domain name personal
email address would not shed light government operations. The domain names the
personal email addresses the email chain are therefore exempt under FOIA Exemption
u.s.c. 552(b)(6).
The Department does not seek protect the email address fonner Secretary Clinton
(, which the earlier email the email chain.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
The Department conducted line-by-line review the email hain and
determined that there was reasonably segregable, non-exempt material that could released,
other than the infonnation disclosed the preceding two paragraphs.
35. summary, the Department conducted thorough search all Department
records systems within the Office the Secretary that were reasonably likely maintain
records responsive Plaintiffs FOIA request and located five responsive documents, one
which released full, three which released part, and one which withheld full.
*** declare under penalty perjury that the foregoing true and correct the best
Executed this day ofJuly 15, Washington, D.C.
John Hackett
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
U.S. Department State,
No. 1:14-cv-01242-RCL
Plaintiff FOIA Request
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
HPt flll ,,. 11nt
i.oC ln11 /1, fore
May 13. 2014
Office oflnformation Programs and Services
VGlS/IPS1RL Department Stat.:
Washington, 20522-8100
Re; Freedom Information Act uest
Dear frecdom lnfonnation Officer:
Pursuant the Freedom oflnfom1ation Act (FOIA). U.S.C. 552 .Judicial
Watch, Inc. hereby requcs1s that Office the Secretary State produce the follo.ting
within twenty (20) business days: Copies any updates and/or talking points given Ambassador Rice the
White House any federal agency concerning. regarding. related the
September 2012 anack the U.S. consulate Benghazi, Libya. Any and all records communications concerning, regarding. relating
talking points updates the Benghazi attack given Ambassador Rice
I.he White House any federal agency. call your attention President Obama January 21. 2009 Memorandum
concerning the Freedom Information Act, which states: agencies should adopt presumption favor
disclosure, order renew their commitment the
principles embodied FOlA ... The presumption
disclosure should applied all decisions involving
lhc memo fwther provides that The Freedom Information Act should
administered with clear presumption: lbe case doubt. openness prevails.
Nevertheless. any responsive record portion I.hereof claimed exempt
rrom production under FOIA. please provide sufficient identifying information with
respect each allegedly exempt record portion thereof aUow assess the
propriety the claimed exemption. Vaughn Rosen. 484 F.2d 820 (D.C. Cir. 1973).
Freedom Information Act. Pres. Mem. Janual) 2009. Fed. Reg. 4683 ThlrJ SW. S11itc ~01 W:i),l11ngtnn, I)( 20024 Tel. (2021646-517~ 1>1 1-XXS-.59.1-84..t:!
AX. r2021 Mil- lll) hnad 1nft)1tl~lhl11.:rnl\atch.urg \\.Judirn11Wutdl.)1!!
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
Department State
May 13, 2014
cert. nied, 415 U.S. 977 (1974). addition. any reasonably segregabl~ portion
respons ive record must provided, after redaction any allegedly exempt material.
U.S.C. 552(b).
For purposes this request. the term record shall mean: any written.
printed., typed material any kind, including wrthout limitation correspondence.
memoranda, notes, messages, letters. cards, facsimilt::s. papers. forms. telephone
messages. diaries, schedules. calendars, chronological data, minutes. books, repo1ts,
cha.its, lists. ledgers, invoices, worksheets, receipts, returns, computer printouts. ptinted
matter. prospectuses, statements. checks, stati stics, surveys. affidavits. co11t:racts.
agreements, transcripts, magazine newspaper articles, press releases: (2) any
electronically. magnetically, mechanically stored material any kind. including
without limitation all electronic mail e-mai (3) any au