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Judicial Watch • JW v State opposition declaration 01511

JW v State opposition declaration 01511

JW v State opposition declaration 01511

Page 1: JW v State opposition declaration 01511


Number of Pages:4

Date Created:May 1, 2017

Date Uploaded to the Library:May 03, 2017

Tags:Clinton Records, STEINBACH, Declaration, Server, orfanedes, Opposition, 01511, classified, redacted, Exemption, exhibit, kennedy, Counsel, email, Emails, Secretary, defendant, clinton, filed, plaintiff, document, FBI, FOIA, office

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Case 1:14-cv-01511-ABJ Document Filed 05/01/17 Page THE UNITED STATES DISTRICT COURT
Civil Action No. 14-cv-1511 (ABJ)
Plaintiff, counsel, respectfully submits this memorandum points and authorities
opposition Defendant Motion for Reconsideration and Alter Judgment. not all clear that Defendant failure make Exemption claim over
the two versions the email obtained from Secretary Clinton unofficial, non-secure server was
the result pure human error. See Citizens for Responsibility and Ethics Washington
U.S. Dep Justice, Case No. 16-5138, slip. op. (D.C. Cir. April 21, 2017). The version
the email apparently obtained from official, secure server was largely withheld under
Exemption The only material difference the emails the sources Secretary Clinton
unofficial server the official server.
All three versions were produced Plaintiff identified Plaintiff being
available Defendant website letter dated June 2015. See Declaration Paul
Orfanedes PJO Decl. attached hereto Exhibit According Defendant, the
versions the email from Secretary Clinton unofficial server had been reviewed least twice that point response request from Congress and response request from another
Case 1:14-cv-01511-ABJ Document Filed 05/01/17 Page
FOIA requester. See Declaration Eric Stein, attached Defendant motion, para. 11.
The fact that the emails were reviewed least twice undermines any claim that the failure
invoke Exemption was inadvertent. addition, two FBI 302s released the FBI following its investigation into
Secretary Clinton email practices show contemporaneous effort Defendant avoid
designating emails from Secretary Clinton unofficial server classified. so, Defendant
actions were deliberate, not mistake.
According July 30, 2015 interview FBI Records Management Division
employee, Undersecretary State for Management Patrick Kennedy pressured the FBI
change classified Clinton email unclassified and even offered the FBI quid pro quo for
doing so:
Shortly thereafter, [redacted] received call from [redacted] the International
Operations Division (IOD) the FBI, who pressured him change the
classified email unclassified. [Redacted] indicated had been contacted
PATRICK KENNEDY, Undersecretary State, who had asked his assistance
altering the email classification exchange for quid pro quo. [Redacted]
advised that, exchange for marking the email unclassified, STATE would
reciprocate allowing the FBI place more Agents countries where they
presently are forbidden.
[Redacted] was then present during conference call involving KENNEDY and
[FBI Counterterrorism Assistant Director Michael] STEINBACH which
KENNEDY continued pressure the FBI change the classified markings
the email unclassified. STEINBACH refused so. Prior ending the
conversation, KENNEDY asked whether the FBI STATE would conduct the
public statements the matter. STEINBACH advised KENNEDY that the FBI
would not comment publicly the matter. The conference call ended and,
according [redacted], the Associated Press (AP) published the story within the
hour. Former Secretary State CLINTON appeared front the press shortly
thereafter deny having sent classified emails her private email server.
Case 1:14-cv-01511-ABJ Document Filed 05/01/17 Page
See FD-302 dated July 30, 2015, attached PJO Decl. Exhibit pp. and This same
employee believes STATE has agenda which involves minimizing the classified nature
the CLINTON emails order protect STATE interests and those CLINTON. Id.
Even more directly point August 18, 2015 FBI interview employee Defendant Office Information Programs and Services. According the employee,
Defendant Office Legal Counsel interfered with the FOIA processing email from
Secretary Clinton server, instructing reviewers use Exemption instead Exemption
[Redacted] believed there was interference with the formal FOIA review process.
Specifically, STATE Near East Affairs Bureau upgraded several CLINTON
emails classified level with B(1) release exemption [Redacted], along with
[redacted] attorney, Office Legal Counsel, called STATE Near East Affairs
Bureau and told them they could use B(5) exemption upgraded email
protect instead the B(1) exemption. However, the use the B(5) exemption,
which usually used for executive privilege-related information, was incorrect
the information actually was classified and related national security, which
would B(1) exemption.
See FD-302 dated August 18, 2015, attached PJO Decl. Exhibit This appears
mirror exactly what happened here. Despite least two separate reviews the versions the
email produced from Secretary Clinton unofficial server, Defendant invoked Exemption
instead Exemption Defendant failure invoke Exemption appears deliberate, not
pure human error. agency deliberate withholding FOIA claim, either gain tactical
advantage or, appears the case here, protect the agency interests and those its
former head, motive undoubtedly inconsistent with FOIA broad remedial purpose.
August Federal Bureau Investigation, 328 F.3d 697, 700 (D.C. Cir. 2003). counsels
denying the Government request. Id. the alternative, the Court should authorize discovery
into the reasons behind Defendant failure invoke Exemption over the two versions the
Case 1:14-cv-01511-ABJ Document Filed 05/01/17 Page
email from Secretary Clinton unofficial, non-secure server and whether Defendant deliberately
avoided tried minimize classifying emails from the Secretary server, before rules
Defendant motion.
Dated: May 2017
Respectfully submitted,
/s/Paul Orfanedes
Paul Orfanedes
D.C. Bar No. 429716
425 Third Street SW, Suite 800
Washington, 20024
Tel: (202) 646-5172
Counsel for Plaintiff