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Archives for June 2015

06/9/2015

National Review: The Obama Administration’s Newly Political Approach to FOIAs

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At the Treasury Department, the memo came down from the deputy executive secretary, Wally Adeyemo, in December of 2009. Going forward, the memo stated, “sensitive information” requested under the Freedom of Information Act was to be reviewed not only by career FOIA officials but also by a committee of political appointees, including Adeyemo and representatives from the public-affairs, legislative-affairs, and general counsel’s office, before release. What followed was an unusual review of Treasury FOIA requests by high-ranking political officials. And it didn’t just happen at Treasury, but at the IRS and the Department of Homeland Security, too. Current and former FOIA attorneys at these agencies say documents requested by the media have come in for special scrutiny, called “sensitive review,” often holding up release for weeks or months. At times, these officials say, political officials delayed the production of documents for political convenience. The policy runs counter not just to the spirit and the letter of the Obama administration’s pledge to unprecedented transparency, but also to the spirit of the Freedom of Information Act itself….

The Treasury Department is not alone in its use of the sensitive-review process. Internal documents suggest that the IRS (part of Treasury, but with its own policies), the Department of Homeland Security, and a number of other agencies have, to varying degrees, implemented similar procedures. At the IRS, for instance, when the legal watchdog group Cause of Action sued in 2012 to secure the release of documents under FOIA, it set off a spate of e-mails within the agency about whether the request had been subject to sensitive review. On October 12, John Davis, the agency’s chief of disclosure, wrote to Valerie Barta, a tax-law specialist, of Cause of Action’s original FOIA request: “This case we closed out in May of this year is coming back to haunt us. Gary wants to know why this was not on a sensitive case report. Can you pull this case and if you can tell why Susan didn’t put this on a sensitive case report?”

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06/5/2015

Washington Examiner: State Department preparing to probe Clinton email scandal

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Records from the State Department’s office of inspector general reveal the agency watchdog has taken early steps toward investigating Hillary Clinton’s use of a private email address and server during her time as secretary of state.  Steven Linick, State’s inspector general since June 2013, signaled his office is making “preliminary” preparations for a larger probe of the policies that allowed Clinton to determine which of her official communications she wanted to withhold from the public, according to documents obtained by the nonpartisan watchdog group Cause of Action.  “In the past, when faced with employees who were using non-governmental email accounts for government business, the OIG questioned such activities,” Linick wrote in response to a letter from Sen. Charles Grassley, chairman of the Senate Judiciary Committee.  The Iowa Republican had written to Linick in March seeking answers about the communications and business activities of Clinton and her top aides that were then emerging in the media.  Cause of Action filed a Freedom of Information Act request to State’s inspector general and to the National Archives and Records Administration seeking records related to the Clinton email controversy.  A letter from the State Department inspector general dated May 15 claimed there were just 18 documents that ever mentioned Clinton’s emails, the national archives or the Clinton Foundation.  Just six of those were given to Cause of Action in their entirety, with the others being redacted or punted to the State Department for further review.  But the few records that the agency did release had nothing to do with the information requested, and were not even produced during Clinton’s time in office.

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06/4/2015

Documents Obtained by Cause of Action Show that Officials Worried About Hillary’s Emails But Took No Action

Earlier this year, Cause of Action sought documents from the State Department OIG and the National Archives and Record Administration (“NARA”) regarding Hillary Clinton’s use of a private server to conduct official State Department business.

The State Department OIG claimed that there were no responsive documents to our FOIA requests from Harold Geisel’s tenure as the department’s Acting Inspector General.

[Letter from Erich O. Hart, General Counsel, Dep’t of State OIG to Cause of Action (May 15, 2015)]

NARA, however, confirmed that responsive OIG records existed, though it claimed exemption(s) over any such document(s).

[PDF pp. 1-2: Letter from Joseph A. Scanlon, FOIA Officer, NARA to Cause of Action (May 20, 2015)]

Emails show that, as early as 2012, NARA officials were concerned that Mrs. Clinton might alienate federal records from government control.

[PDF p. 3: E-mail from Paul M. Wester, Jr., Chief Records Officer, NARA to Margaret Hawkins, NARA, et al. (Dec. 11, 2012)]

By 2012, the State Department had replaced its outdated cable communication system with the State Messaging and Archive Retrieval Toolset (“SMART”), which “contains an email management component for capturing record email.”

[Politico: Dep’t of State, Summary Current State of Records Management at the State Department, at 2 (Mar. 27, 2012) http://images.politico.com/global/2015/03/18/statenara2012.pdf]

SMART is supposed to operate so that when “Department personnel send cables and record emails, a copy of the message is automatically sent to the Department’s official archive, which is an enterprise-wide electronic repository.”

[Politico: Dep’t of State, Summary Current State of Records Management at the State Department, at 2 (Mar. 27, 2012) http://images.politico.com/global/2015/03/18/statenara2012.pdf]

Since 2009, however, NARA consistently identified problems with the SMART system as a permanent recordkeeping system at the State Department, but no action was taken to address the issues.

[PDF p. 148: Email from David Langbart, NARA to Michael Kurtz, NARA (Nov. 2, 2009) (discussing major problems with SMART’s technical handling of email attachments)]

NARA also was aware of the failures across the State Department to retain record emails.

[PDF p. 152: Email from David Langbart, NARA to Michael Kurtz, NARA (Jan. 22, 2010) (discussing problems with State employees not properly using SMART’s “record email” retention function)]

Despite this awareness, NARA, under then-acting IG James E. Springs, failed to secure Mrs. Clinton’s emails in July 2014, although it had the opportunity, as implied in meeting notes between NARA and State.

[PDF pp. 54-57: NARA – State Dep’t Meeting Notes, eRSC Meeting (July 14, 2014) (noting that rollout should “move in to [deputy secretary] on to the Office of the Secretary” and “[a]ll submitted to NARA by Dec. 2016”; explaining that senior officials’ emails serve as a “catchers mitt” to preserve departing officials emails)]

During that same July 2014 meeting between NARA and State, NARA notes, “program office using gmail with no r/k system — Must be maintained in r/k system *which should be the eRSC*” The handwritten notes even indicate, “adoption of Google Aps at DOI has almost been a total disaster.”

[PDF p. 53: NARA – State Dep’t Meeting Notes, eRSC Meeting (July 14, 2014)]

In October 2014, NARA had reason to know that the State Department was seeking a legal justification for noncompliance with applicable regulations relating to email records.

[PDF p. 58: Email from William P. Fischer, Agency Records Officer, Office of Info. Programs & Servs., Dep’t of State to Lisa Haralampus, NARA, et al. (Oct. 20, 2014) (Former NARA official W. Fischer seeking “to ensure that whatever we say is consistent with law and regulation” with respect to a “Draft Email Policy”);

[PDF p. 59:  Email from Paul M. Wester, Jr., Chief Records Officer, NARA to Gary M. Stern, Gen. Counsel, NARA, et al. (Mar. 2, 2015) (forwarding discussions about Clinton’s email use, reflecting concerns about Mr. Fischer’s attempt to justify what was later to be disclosed as Clinton’s potential alienation or destruction of federal records).

In February 2015, weeks before news emerged revealing Hillary Clinton had been using a private email server during her tenure as Secretary of State, the State Department sent a memo to NARA that would suggest State and NARA were both aware of email preservation issues with State Department Senior Officials.

The memo alerted NARA that the State Department had recently issued guidelines “reminding [Senior Officials] of their overall records management responsibilities, including e-mail, and issued a directive to preserve electronically the e-mail of Senior Officials upon their departure from the Department.”

[Letter from DOS Under Secretary for Management Patrick Kennedy to NARA Archivist David Ferrerio (February 2, 2015)  http://foia.state.gov/_docs/Records/FY2014%20Senior%20Agency%20Official%20for%20Records%20Management%20Annual%20Report.pdf]

Given NARA’s stated concerns with SMART, its knowledge in 2012, its opportunity to remedy in 2014, and its knowledge of the State Department’s efforts to remedy the process in February 2015, NARA either was aware of the failure to preserve Hillary Clinton’s emails or was extremely negligent in its efforts to monitor the preservation of senior officials’ emails.

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06/3/2015

Washington Examiner: Acting IGs at State Dept., National Archives ignored looming Clinton email scandal

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A years-long vacancy in the State Department’s Office of inspector general allowed Hillary Clinton’s use of a private email account and server to hide her public records to continue unchecked, experts told a Senate committee Wednesday.  Daniel Epstein, president of nonpartisan watchdog Cause of Action, pointed to another empty inspector general office — this one in the National Archives and Records Administration — as a potential cause of the breakdown in transparency that occurred during Clinton’s tenure at the State Department.

James Springs, who now serves as the National Archives’ permanent inspector general, oversaw the agency in an interim capacity from September 2012 until March of this year.

That means the watchdog position was effectively empty as Clinton made her transition out of the State Department.  Top Archives officials were concerned at the time that Clinton might attempt to leave the State Department with her records and bring them to the Clinton Library in Arkansas, internal emails obtained by Cause of Action show.

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06/3/2015

Government Executive: Senators to Obama: Fill the Inspector General Vacancies

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Nearly every recent scandal and lapse involving inspectors general was mentioned at a Wednesday Senate panel hearing as senators from both parties teamed with transparency advocates to push the White House to accelerate nominations to empty watchdog slots.  The White House, however, sent no one to punch back, despite efforts by the Senate Homeland Security and Governmental Affairs Committee to obtain testimony on delayed nominations from Valerie Green, director of the Office of Presidential Personnel, and her predecessor Jonathan McBride.  “When IG positions remain unfilled, their offices are run by acting IGs who, no matter how qualified or well-intentioned, are not granted the same protections afforded to Senate-confirmed IGs,” said Chairman Ron Johnson, R-Wis. “They are not truly independent, as they can be removed by the agency at any time; they are only temporary and do not drive office policy; and they are at greater risk of compromising their work to appease the agency or the president.”…

“The disadvantage of being acting IG is you have less credibility because there’s no vetting,” said Danielle Brian, executive director of POGO. “There’s an incentive to curry favor with the agency head to get appointed, and they’re often more lapdog than watchdog.”… Brian joined with Daniel Epstein, executive director of the legal group Cause of Action, in an opinion that the longtime acting State Department Inspector General Harold Geisel, a Foreign Service officer ineligible for the permanent job, might not have vetted Clinton’s unusual email arrangements as a permanent IG would have. “Obama’s decision not to appoint a permanent IG at State may have been political,” Epstein said, since “acting IG’s have the incentive not only to delay but to avoid investigations.”  Epstein said Obama should make use of the recess power of appointments as he has done to fill vacancies on the National Labor Relations Board. “He is able but not willing,” Epstein speculated.

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06/3/2015

Fox News: HRC EMAILS: Federal officials voiced growing alarm over Clinton’s compliance with records laws, documents show

Read the full story: Fox News

Over a five-year span, senior officials at the National Archives and Records Administrations (NARA) voiced growing alarm about Hillary Clinton’s record-keeping practices as secretary of state, according to internal documents shared with Fox News.  During Clinton’s final days in office, Paul Wester, the director of Modern Records Programs at NARA – essentially the agency’s chief records custodian – privately emailed five NARA colleagues to confide his fear that Clinton would take her official records with her when she left office, in violation of federal statutes.  Referring to a colleague whose full name is unknown, Wester wrote on December 11, 2012: “Tom heard (or thought he heard) from the Clinton Library Director that there are or may be plans afoot for taking her records from State to Little Rock.” That was a reference to the possibility that Clinton might seek to house her records at the Clinton Presidential Center, which was largely funded by the Clinton Foundation….The 73 documents from NARA and State were turned over to Cause of Action, a non-partisan government accountability watchdog that had filed a Freedom of Information Act request in March, after the New York Times revealed that Clinton had exclusively used a private email server and domain name during her tenure as secretary of state. Cause of Action shared the documents with Fox News on an exclusive basis, ahead of Senate testimony by the group’s executive director, Daniel Epstein.  “Given NARA’s stated concerns,” Epstein said in written testimony submitted this week to the Senate Homeland Security and Governmental Affairs Committee, “it either was aware of the failure to preserve Mrs. Clinton’s emails or was extremely negligent in its efforts to monitor [the preservation of] senior officials’ emails.”

Fox News’ Special Report, Cause of Action Executive Director Dan Epstein spoke with Chief Washington Correspondent James Rosen about recently uncovered government documents that reveal critical faults with the federal records archiving system during Hillary Clinton’s tenure as Secretary of State.

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06/2/2015

Dan Epstein Discusses Recently Uncovered Government Documents That Reveal Critical Faults with the Federal Records Archiving System

Tonight on Fox News’ Special Report, Cause of Action Executive Director Dan Epstein will speak with Chief Washington Correspondent James Rosen about recently uncovered government documents that reveal critical faults with the federal records archiving system during Hillary Clinton’s tenure as Secretary of State.

Internal agency documents obtained through Freedom of Information Act requests submitted to the National Archives and Records Administration (NARA) show that as early as 2012, officials were concerned the State Department’s maintenance of Clinton’s official emails could be in violation of the Federal Records Act, yet they did nothing to prevent this breach of federal law.

The urgent need for permanent Inspector Generals at executive agencies has been recently highlighted by revelations that Clinton exclusively used a private email system for official government business.

Agencies are required to collect, retain, and preserve federal records, which provide the Administration, Congress, and the public with a history of public policy execution and its results. However, internal emails show that since 2009, NARA consistently identified problems with the State Department’s retention policy but failed to take any remedial actions to prevent the loss of critical records.

Knowing the deficiencies at State Department, internal meeting notes reveal that NARA, under the direction of then-acting IG James Springs, still failed to secure Clinton’s emails in July 2014 although it had the opportunity to do so.

Months later, emails show, NARA officers highlighted concern over an attempt made by the State Department to find a legal justification for their failure to adhere to record maintenance mandates.

Given NARA’s long-term knowledge of deficiencies with the State Department’s records system and its lost opportunity to fix the problem in 2014, the agency was either aware of the failure to preserve Clinton’s emails or was extremely negligent in overseeing the general preservation of senior officials’ emails.

Epstein Testifying Before Senate Committee

During Clinton’s entire tenure, the State Department’s acting IG was Harold Geisel. In 2013, the House Committee on Foreign Affairs sent letters to Secretary of State John Kerry and President Obama noting that the “gap of more than 1,840 days is the longest vacancy of any of the 73 Inspector General positions across the federal government.”

On Wednesday June 3rd, Dan Epstein will appear before the Senate Homeland Security and Government Affairs Committee to discuss the critical need for permanent Inspector Generals within our nation’s federal agencies to serve as watchdogs and prevent this precise lack of oversight from happening again.

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