Washington, DC – Cause of Action Institute (“CoA Institute”) today filed its opposition to the government’s motion to dismiss a lawsuit to compel Secretary of State Rex Tillerson and U.S. Archivist David Ferriero to fulfill their statutory obligations to recover former Secretary of State Colin Powell’s work-related email records from a personal account hosted by AOL, Inc. CoA Institute filed the lawsuit in October 2016 after then-Secretary John Kerry and Archivist Ferriero both failed to act on a CoA Institute Federal Records Act (“FRA”) notice and Freedom of Information Act (“FOIA”) request.
Cause of Action Institute President and CEO John Vecchione: “The law requires an agency or the Archivist to initiate action through the Attorney General to recover unlawfully removed records, especially when initial remedial efforts have failed. This is a mandatory obligation that cannot be sidestepped. Whether AOL no longer has Secretary Powell’s email records in its systems is unproven. More importantly, the government cannot point to any evidence that more intensive, forensic recovery methods—like those employed in the case of Secretary Clinton—might lead to the recovery of these important and historically-vital State Department records.”
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. After learning that Powell no longer had access to his AOL account or its contents, the State Department merely asked that Powell contact AOL to see if anything could be retrieved. Despite a request from the National Archives and Records Administration (“NARA”) to contact AOL directly, the State Department never did so.
The government now argues the case should be dismissed because CoA Institute cannot show that involving the Attorney General will result in the recovery of Powell’s email. That argument is faulty on both the law and the facts. As to the law, the government confuses the nature of an agency head’s non-discretionary obligation under the FRA, which requires it to initiate action through the Attorney General to recover unlawfully removed records. This requirement is all the more important when an agency’s or the Archivist’s remedial recovery efforts have proven fruitless.
Though the State Department and NARA exerted minimal effort to recover Powell’s email records, they failed. Moreover, the government has yet to prove that the Attorney General could not achieve that recovery. Many State Department officials believed that federal records that had been deleted from Secretary Hillary Clinton’s private email server were unrecoverable, for example, but the FBI retrieved many of those records using forensic techniques. The same could be done here, assuming AOL cannot in fact access or recover Powell’s records through less intensive means.
Although the government argues that Powell’s email records are no longer in AOL’s system, that allegation depends on unreliable hearsay. The State Department relies on the representations of Powell’s secretary, but an email uncovered by CoA Institute through FOIA shows that this representative received only vague details about an apparent phone conservation between someone at AOL and a staff member of the House Oversight Committee, during the course of which the unnamed AOL employee indicated that AOL no longer had Powell’s email. The details of the phone call, the exact content of the representations made, and the reasons for why AOL reached the conclusion it did are all unclear, but even assuming the truth of the claim, it does not speak to the ability of the government to recover Powell’s email through other means.
Cause of Action Institute’s opposition brief can be accessed HERE.
