Archives for 2015

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By 2012, the State Department had replaced its outdated cable communication system with the State Messaging and Archive Retrieval Toolset (“SMART”), which “contains an email management component for capturing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

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 3^rd, 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.