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07/23/2018

Federal Judge Confirms Agencies’ FRA Record Recovery Efforts Must Include Reaching Out to Third-Party Email Providers

Last Friday, Judge Trevor McFadden of the U.S. District Court for the District of Columbia granted the federal government’s second motion to dismiss a lawsuit to compel Secretary of State Mike Pompeo and U.S. Archivist David Ferriero to fulfill their statutory obligations under the Federal Records Act (“FRA”) to recover former Secretary of State Colin Powell’s work-related email records from a personal account hosted by AOL, Inc.  Cause of Action Institute (“CoA Institute”) filed the lawsuit in October 2016 after then-Secretary John Kerry and Archivist Ferriero failed to act on CoA Institute’s FRA notice and Freedom of Information Act (“FOIA”) request.

Although Judge McFadden’s dismissal is a technical defeat, albeit on procedural grounds, CoA Institute’s work in this case, and in another FRA case involving Hillary Clinton, is still a success.  Taken together, these cases have the raised the bar for what federal agencies must do when records go missing.  In future cases, agencies will be required, at the least, to reach out directly to third-party email providers in an attempt to recover work-related email records and may not rely on self-serving statements from agency officials that such records no longer exist.

In the recent motion, the government again sought dismissal on mootness grounds, arguing that Secretary Powell no longer had access to the account he used during his tenure at the State Department and, moreover, it would be “technologically impossible” for AOL to recover any records from its servers.  Correspondence from Secretary Powell and various AOL employees was used to support the government’s claims.  But the agency reached out to Secretary Powell and AOL only after Judge McFadden rejected a similar motion to dismiss in January 2018, holding that there was still a “substantial likelihood,” based on the record, that Secretary Powell’s work-related email could be recovered if the State Department were to leverage the full law enforcement authority of the federal government.  Judge McFadden looked to the Department of Justice’s successful recovery of former Secretary Hillary Clinton’s email from computer hard drives and mobile devices as a guide.

In opposition to the government’s second motion, and in support of its own motion for summary judgment, CoA Institute argued that the government had failed to provide enough evidence to establish fatal loss of the email records at issue, particularly since Secretary Pompeo and Archivist Ferriero continued to refuse to involve the Attorney General in compulsory or forensic recovery efforts.

This time around, however, the judge was convinced that the government had done enough and additional efforts would be “pointless.”  Nevertheless, in future cases, agencies will need to undertake substantial efforts to prove fatal loss, even if that means contacting third-party commercial communications providers to determine the recoverability of records on their servers or networks.

The alienation of federal records will likely continue with the fast-paced development of technology and alternative means of communication within the federal bureaucracy.  CoA Institute is committed to ensuring that the law follows these developments and holds government employees accountable.

Ryan Mulvey is Counsel at Cause of Action Institute.

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05/31/2018

What Happens When Government Emails are Allegedly “Fatally Lost”?

President Trump’s phone and email behavior are coming under scrutiny for security reasons, but regardless of the device used, the type of email account being used could be a bigger concern.  Did you know that a government official’s use of private email to conduct government business is wrong?  If the Hillary Clinton email scandal didn’t showcase that, consider one of our recent and ongoing investigations into former Secretary of State Colin Powell’s work-related email records, which were hosted on a personal AOL account.

In September 2016, the House Oversight & Government Reform Committee held a hearing at which then-Under Secretary of State Patrick Kennedy testified that the State Department had undertaken minimal efforts to retrieve Powell’s work-related email.  In October 2016, Cause of Action Institute sought access to Secretary Powell’s work-related emails under the Freedom of Information Act (“FOIA”).  At the same time, we advised the Secretary of State and the Archivist of the United States of their obligations under the Federal Records Act (“FRA”) to recover those same email records.  Once it became apparent that the State Department would not respond to our FOIA request, and the obligation to initiate action through the Attorney General for the recovery of Secretary Powell’s work-related email would not be met, we filed suit in federal district court.  In January 2018, when the court denied the government’s first motion to dismiss, it described the State Department’s efforts at recovery as “anemic.”  As we’ve noted, U.S. District Court Judge Trevor McFadden explained that “[t]he Defendants’ refusal to turn to the law enforcement authority of the Attorney General is particularly striking in the context of a statute with explicitly mandatory language.”  “[T]here is a substantial likelihood that [CoA Institute’s] requested relief would yield access to at least some of the emails at issue.”

After being repeatedly asked by the National Archives and Records Administration (“NARA”) to contact AOL directly for Powell’s emails, the State Department never did so until CoA Institute filed its lawsuit.  But the State Department continues to use the line that the emails have been “fatally lost” and that our lawsuit should therefore be dismissed.  The Defendants argue that, even if they cannot prove fatal loss or completely recover unlawfully removed records, their obligation to initiate action through the Attorney General (and thus marshal the law enforcement authority of the federal government) can be excused if they have no “reason to believe” records are recoverable.

We’re currently pushing back on that argument, as it rests on a fundamental misapprehension of the FRA.  We have asked the court to order the Secretary of State and the U.S. Archivist to initiate action through the Attorney General for the recovery of Powell’s email, as required by law.  This would entail enlisting the law enforcement authority of the federal government to investigate the possibility of forensically recovering the records at issue, among other things.  Such techniques have been successful in previous cases of unlawfully removed federal records, as evidenced by Hillary Clinton’s email scandal and the FBI’s recovery of Peter Strzok and Lisa Page’s text messages.

The problem with the Defendants’ position is that it ignores the clear text of the FRA and thirty years of precedent, which recognizes a non-discretionary obligation for an agency head to go to the Attorney General whenever its own recovery efforts have failed.  In this last line of their closing brief, the Defendants sum up their argument: “We recognize that the Court has previously rejected the contention that the FRA requires referral only when an agency has reason to believe that records can be recovered but respectfully reserve the right to seek further review should the Solicitor General determine that such review is warranted.”

This case illustrates how careless the federal government can be with the protection of government work – the use of a personal account and the subsequent years-long legal battle to recover Secretary Powell’s work-related emails are a failure of our government to follow both the FRA and the FOIA.  Secretary Powell should never have used a personal email account, and the State Department should have acted quicker to recover and preserve vital records of government business that were stored on a third-party commercial server.  If it is this difficult to recover materials that ultimately belong to the American people, the work of the government becomes more and more opaque and the gap between the American people’s knowledge and the federal government’s behavior only widens.

Mary Beth Gombita, Cause of Action Institute.

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11/9/2017

Court Dismisses Hillary Clinton Email Recovery Case

Washington D.C. – A federal judge in the U.S. District Court for the District of Columbia today dismissed a case brought by Cause of Action Institute (“CoA Institute”) and Judicial Watch against the Secretary of State and the Archivist of the United States to compel them to fulfill their legal obligations to recover all of Hillary Clinton’s unlawfully removed email records during her tenure as Secretary of State.

In December 2016, the D.C. Circuit Court of Appeals ruled in favor of CoA Institute and Judicial Watch, overturning an earlier opinion by the same district court judge that had dismissed the case as “moot.” Despite the higher court’s rebuke, the Secretary of State and U.S. Archivist still refused to perform their statutory obligations under the Federal Records Act to recover Secretary Clinton’s email records by initiating action through the Attorney General.

CoA Institute President and CEO John J. Vecchione: “The fact that this case was dismissed does not absolve Secretary Clinton or show that all of her unlawfully removed email records have been recovered. In fact, the Court’s decision shows that Secretary Clinton violated the Federal Records Act and that a subset of her work-related emails remains missing. Unfortunately, the Court concluded that efforts by the FBI in its investigation of Secretary Clinton’s handling of classified material, which resulted in the recovery of numerous emails that Clinton had not previously turned over, left nothing further for the Attorney General to do.”

This case, for the first time, brought to light that the FBI’s investigation included the issuance of grand jury subpoenas. The Court stated that “referral to the Attorney General” is the typical remedy for unrecovered records, but found that unnecessary in this case because:

The Government has already deployed the law enforcement authority of the United States to recover Clinton’s emails, as the FBI has sought those records as part of its investigation into whether Clinton mismanaged classified information. The Court thus need not speculate about what the Attorney General might do.

Testimony submitted by FBI Assistant Director E.W. Priestap opined that the Bureau’s investigation was conclusive. However, the FBI’s investigation focused solely on “unauthorized transmission and storage of classified information” and was not a Federal Records Act record-recovery effort, which was the focus of this litigation. Regardless, the Court found Agent Priestap’s opinions “relevant and reliable,” stating:

Although the FBI and the Attorney General are not one and the same, Jeff Sessions would necessarily look to his investigative arm to recover Clinton’s emails. The FBI’s own assessment of its searches is therefore telling.

Read the full opinion here

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11/3/2017

Federal Records Law Must Keep Pace with Evolving Technology

Technology develops faster than law.  This maxim has implications across society, but one place it has particular purchase is in federal recordkeeping and the public’s right to access government information.  The two primary federal statutes that require government to preserve records and then allow the public to access those records are the Federal Records Act (“FRA”) and the Freedom of Information Act (“FOIA”).  Federal agencies, unfortunately, do not always live up to their obligations under these laws and government-oversight organizations turn to the courts to seek relief.  The public’s right to sue under the FOIA is well established.  However, courts rarely compel agencies to fulfil their FRA obligations.  My organization, Cause of Action Institute (“CoA Institute”), is currently involved in two important FRA lawsuits that may shape the future of agency obligations under the FRA for decades to come, as information technologies continue to change.

Both lawsuits arose from Secretaries of State failing to preserve their emails in compliance with the Federal Records Act.  Former Secretary Hillary Clinton’s email travails are well catalogued.  But former Secretary Colin Powell also used a non-governmental email account to conduct official government business.  The factual difference between these two cases is that while Secretary Clinton primarily used a personal email service with a server in her basement, Secretary Powell used an AOL account.  But Secretary Clinton also used a BlackBerry email account for the first two months of her tenure as Secretary of State.  So, from these two cases the same legal issue arises: what is an agency’s FRA obligation to recover unlawfully removed federal email records that are housed on commercial email servers?

This question is important to the future of federal recordkeeping law and public access to information because we are already seeing an explosion of non-email methods of electronic communication.  Some of these methods of communication store information locally, such as on a phone or computer, and some store them on commercial servers.  For example, FOIA requesters have been battling for access to text messages for years, agency employees use various forms of instant messaging while at work, and we’ve now seen the rise of the surreptitious use of phone applications such as Signal and Confide that do not always preserve the communications.

In Armstrong v. Bush, the D.C. Circuit recognized two cognizable private rights of action under the Federal Records Act.  First, a plaintiff may bring a case against an agency if that agency does not have the requisite recordkeeping policies in place or if the policies are insufficiently clear so that an employee does not know what type of records he is required to save.  Second, a plaintiff may bring a case to compel the head of an agency or the Archivist of the United States to recover records that have been unlawfully removed from the agency.  If the agency head or Archivist is either unable or unwilling to perform that duty, then the FRA requires them to “initiate action through the Attorney General for the recovery” of those records.  To our knowledge, no such referral to the Attorney General has ever occurred.

At stake in CoA Institute’s Clinton and Powell cases is whether a plaintiff can force the agency head and Archivist to refer the matter to the Attorney General when, through their own actions, they have failed to recover all the missing records.  In both cases the State Department asked representatives of Secretaries Clinton and Powell to recover the unlawfully removed records and return them to the agency for historical preservation and for response to FOIA requests.  In both cases those representatives responded that they were unable to obtain copies of the records that were housed on BlackBerry and AOL servers, respectively.  The State Department and Archivist have responded in the ongoing suits that those efforts are sufficient and that they are not required to use legal process or refer the matter to the Attorney General for more forceful efforts at record recovery.

CoA Institute’s case related to Secretary Clinton has already been to the D.C. Circuit once and the appellate court held that the agency is only absolved of its Federal Records Act obligations if it can establish the “fatal loss” of the records in question.  The State Department and Archivist have not made a sufficient affirmative showing that BlackBerry, and AOL in the case of Secretary Powell, do not have, and cannot recover, these email records.  They have offered no statements from either company or detailed efforts by those companies to recover and return the federal records.

Whether the district court compels the current Secretary of State and Archivist to make such an affirmative showing or requires them to refer the matter to the Attorney General for him to attempt record recovery could set an important precedent.  This decision will shape the future of agency responsibilities under the Federal Records Act and the public’s ability to have access to its government’s information as communications technology continues to change.

James Valvo is counsel and senior policy advisor at Cause of Action Institute.  He is counsel in both cases discussed in this article.  You can follow him on Twitter @JamesValvo.

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09/27/2017

CoA Institute Moves to Strike FBI Official’s Opinions from Clinton Email Case

Washington D.C. – Cause of Action Institute (“CoA Institute”) today filed a motion to strike from the record improper opinion testimony submitted by FBI Assistant Director E.W. Priestap. The declaration was filed in support of the government’s defense in a pending case against the State Department and National Archives and Records Administration regarding former Secretary of State Hillary Clinton’s unlawful removal of emails.  The suit seeks to refer the matter to the Attorney General, which is what the law requires.

A federal judge in August ordered the government to publicly release the unredacted declaration that it had previously filed so that only the judge was able to review it. The FBI’s declaration includes several opinions that the government relies on to support its case. For example, Mr. Priestap states that “[i]t is my opinion that there are no further investigative actions that can be undertaken by the FBI to recover additional Clinton work-related e-mails which would be meaningful to the investigation, as described above.”

However, the investigation Mr. Priestap is referencing is “the potential unauthorized transmission and storage of classified information on the personal e-mail server of former Secretary Clinton.”  He is not referencing a record-recovery effort pursuant to the Federal Records Act (“FRA”), which is the subject of this litigation.

Cause of Action Institute President and CEO John J. Vecchione: “The FBI’s declaration revealed grand jury subpoenas where there was probable cause to believe classified information may have been involved. This litigation is not merely about classified information, but about the government doing everything in its power to recover Secretary Clinton’s records, in accordance with the law. The opinions offered by Mr. Priestap are unfounded under the applicable standard of law and ignore that this suit seeks more than classified material, which was the FBI’s interest.”

The full Motion to Strike is available here.
CoA Institute also filed its reply brief available here.

For information regarding this press release, please contact Zachary Kurz, Director of Communications at CoA Institute: zachary.kurz@causeofaction.org

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09/14/2017

CoA Institute Forces FBI to Reveal New Details of Clinton Email Investigation

Washington D.C. – The FBI has revealed previously undisclosed details outlining the scope of its investigation into Hillary Clinton’s email practices as Secretary of State. The disclosure, made Wednesday evening, was a result of Cause of Action Institute (“CoA Institute”) convincing the court to release the secret declaration. In August, U.S. District Court Judge James Boasberg ruled in favor of CoA Institute ordering the government to produce the full declaration that had been filed ex parte and in camera, meaning only the judge had been able to review it.

The declaration reveals the FBI issued several grand jury subpoenas to allies of Mrs. Clinton in instances where there was probable cause to believe those individuals may have received classified information. These subpoenas were issued in addition to subpoenas to her email service providers. The FBI claims it recovered thousands of emails that had previously not been returned to the State Department.

Cause of Action Institute President and CEO John J. Vecchione: “Americans are finally getting important information about the FBI’s efforts to recover the government emails possessed by Hillary Clinton. It’s amazing that this information was only revealed by this suit and not by Congress, the mainstream press, or the administration.”

The full FBI declaration is available here.

For information regarding this press release, please contact Zachary Kurz, director of communications: zachary.kurz@causeofaction.org

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09/11/2017

John Vecchione discusses efforts to recover Hillary Clinton’s emails on Sirius XM’s Wilkow Majority

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