DOJ Lawyer Forgets FOIA Requires Agencies Search All Systems Reasonably Believed to Contain Responsive Documents: FRINFORMSUM 2/25/2016

Hillary Clinton might be questioned about attempt to evade FOIA with personal server. Photo credit: Steven Senne/AP

U.S. District Judge Emmet G. Sullivan ruled that Hillary Clinton and top aides “should be questioned under oath” about whether her private email and server set-up was an intentional ploy to evade FOIA. The ruling is in connection with a FOIA lawsuit brought by Judicial Watch over records concerning Huma Abedin’s employment, and establishes April 12 as the “deadline for parties to litigate a detailed investigative plan–subject to court approval–that would reach well beyond the limited and carefully worded explanations of the use of the private server that department and Clinton officials have given.”

The Justice Department’s Principal Deputy Assistant Attorney General Benjamin C. Mizer, who heads the Civil Division, said in court filings connected with the case that, “There can be no doubt that [the State Department’s] search for responsive records has been exceedingly thorough and more than adequate under FOIA,” going on to erroneously say “FOIA requires the agency to release records only under its control — not under the control of its current or former officials — and that ‘federal employees routinely manage their email and ‘self-select’ their work-related messages when they, quite permissibly, designate and delete personal emails from their government email accounts.’”

Milzer’s comments ignore FOIA case law that establishes the extent to which agencies MUST search all records system reasonably believed to contain responsive documents, even if it means contacting former employees. Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990) makes it explicitly clear that it is the obligation of the Department to “conduct a search reasonably calculated to uncover all relevant documents.” The Justice Department’s own May 2004 FOIA Guide says that an agency “cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Rather, the obligation of the Department to search other sources likely to contain responsive records includes contacting former employees where necessary. [See, e.g.,Comer v. IRS, No. 97-76329, 2001 U.S. Dist. LEXIS 16996 (E.D. Mich. Sept. 25, 2001) which found an agency search inadequate when the agency made no attempt to contact a former employee familiar with the information sought.]

Report showing VAST majority of official DOS emails not stored.

Mizer’s comments raise other red flags, not least of which is that government employees should not be self-selecting which of their records to preserve in the first place. A March 2015 State Department IG report shows that most State employees don’t even know how the self-selection works, revealing that “employees have not received adequate training or guidance on their responsibilities for using those systems to preserve ‘record emails.’ In 2011, employees created 61,156 record emails out of more than a billion emails sent.” In other words, roughly .006% of DOS emails were captured electronically.

A federal judge has ruled — for the first time — that citizens are allowed to gather evidence on the National Security Agency’s (NSA) warrantless surveillance program and “seek damages for violations of federal privacy laws.” U.S. District Judge Jeffery White ruled against the NSA, which argued that the agency could not be sued for damages because the claims are barred by the state secrets privilege, when lifting the 12-month stay; White found that “the Foreign Intelligence Surveillance Act of 1978 authorizes citizens to seek damages for violations of federal privacy laws, even from the federal government.” The Electronic Frontier Foundation’s civil liberties director David Greene said “This is an important step forward to lifting the cloak of secrecy that has thus far shielded the NSA from judicial scrutiny, and EFF looks forward to finally getting to the nuts and bolts of this extraordinarily important lawsuit.”

“It was a clean swing and a miss” is how former NSA and CIA head Michael Hayden described the intelligence community’s assessment of Iraq’s weapons of mass destruction program in an interview with NPR’s Robert Siegel to promote his new memoir, Playing to the Edge. Hayden repeated his claim that the White House didn’t sell the notion that Iraq had WMD, and allegedly told incoming CIA director Leon Panetta that the CIA didn’t buckle “under [White House] pressure with regard to the Iraqi [national intelligence estimate], the weapons of mass destruction” – it simply got it wrong. The two are not mutually exclusive of course; the CIA’s infamous October 2002 NIE, Iraq’s Continuing Program for Weapons of Mass Destruction and was initially released in 2004 thanks to an Archive FOIA request, contains inaccurate information and has been called “probably the worst of the modern NIE’s” by Iraq Survey Group leader David Kay, and the White House sold the story – which it started crafting immediately after 9/11 – that Iraq had WMD.

Undated painting depicts an “artist’s conception of an AGM-86 air launched cruise missile released from a B-52G, in the background in flight.” (NARA, Still Pictures Unit, RG 342B, box 965).

The government has officially declassified the long-known fact that the United States stored nuclear weapons on Okinawa during the Cold War – even though US Air Force photos of nuclear weapons on the island have been publicly available since 1990 in Air Force collections at the National Archives and Records Administration (NARA), which have essentially gone unnoticed until now. Although an open secret for decades, the subject has been controversial because Japan’s leaders and U.S. officials have consistently denied the presence of such weapons on Japanese territory. The Interagency Security Classification Review Panel (ISCAP), a component of NARA, released the documents, which were recently posted on the Archive’s website along with other significant ISCAP releases, including CIA documents containing bogus information about Iraq’s nuclear programs and State Department cables about another nuclear controversy from the Cold War – the US discovery that Taiwan was conducting laser uranium enrichment research.

The Archive’s FOIA Director Nate Jones recently talked tips, tricks, and why you should always appeal FOIA denials with MuckRock. Jones reminded readers of a 2015 AP report that found that during the Obama administration agencies “acknowledged in nearly 1 in 3 cases that its initial decisions to withhold or censor records were improper under the law — but only when it was challenged.” Unfortunately, according to recent figures from the Department of Justice, only 2.8% of all denials are appealed. Jones says, “ If you do the math and extrapolate that out, that’s a huge swath — over 150,000 FOIAs and millions of pages of documents — that are improperly withheld the first time and continue to be improperly withheld, even though – if the statistics bear out – they would have been released had it been appealed.”

Not the Washington Records Center.

Jones also has some great advice for historians – and some interesting trivia for Indiana Jones fans. Jones says, “Here’s a great tip, and again, this is a little bit pointed towards historians. At the end of Raiders of the Lost Ark, they put the Ark in a secret government warehouse. One of those actually exists, and it is subject to FOIA, and it’s called the Washington Records Center. What happens is, agencies want to get rid of their old documents. They want to give them to NARA, but the National Archives has such a large backlog, there’s this document purgatory. Docs even sit for 30 years, maybe more, 40 years. All of these documents, the law says, are subject to FOIA. They have to be searched by the originating agency. Agencies don’t like this, because they think that they gave these documents to NARA and they’re not their problem anymore, but that’s not the law. They still have to go to this Washington Records Center, which is in Maryland actually, and search for the documents.”

This week’s #tbt pick is chosen with a bill currently before the Virginia General Assembly that aims to keep the names of all state police officers secret in mind. Executive director of the Virginia Association of Chiefs of Police, Dana Schrad, said, somewhat confusingly about a bill that would help hide actions of police officers who abuse their power, that “We do not expect this to be abused.” The bill is under consideration at a time when many other states are aiming to make their police forces more transparent, and debates around public access to police video footage are mounting. Our #tbt pick this week is February 2015 posting by FreedomInfo.org’s Toby McIntosh and myself that takes an in-depth look at the release of police body camera footage in response to public records requests.

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Happy FOIA-ing!