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05/4/2018

CoA Institute Files Reply in Support of Motion to Order Enforcement Action in Colin Powell Email Case

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed a reply in support of its motion for summary judgment in a lawsuit that seeks to compel Acting Secretary of State John Sullivan and U.S. Archivist David Ferriero to fulfill their non-discretionary obligations under the Federal Records Act (“FRA”).  Specifically, CoA Institute has asked the Court to order Sullivan and Ferriero to initiate action through the Attorney General for the recovery of former Secretary of State Colin Powell’s work-related email records, which were hosted on a personal AOL account.  The brief also argues in opposition to Defendants’ recent motion to dismiss on grounds that Secretary Powell’s email has been “fatally lost.”

“Defendants have failed to undermine any element of CoA Institute’s motion for summary judgment,” the brief reads.  “The evidence they offer in support of their mootness claim does not establish fatal loss.  The record before the Court instead highlights Defendants’ complete refusal to turn to the law enforcement authority of the federal government or to investigate the possibility of forensically recovering the records at issue.”

CoA Institute President John Vecchione: “The Federal Records Act leaves Executive Branch officials no room for discretion in choosing when to recover unlawfully removed federal records. When an agency attempts to recover such records on its own, and those efforts prove ineffectual, the agency must go to the Attorney General.  The government bears a heavy burden in trying to avoid this obligation by establishing the ‘fatal loss’ of the records.  That burden has not been met here.”

Background

CoA Institute filed its lawsuit in October 2016. In January 2018, the court rejected the government’s motion to dismiss the lawsuit because of the State Department’s weak efforts at recovery of the emails in question. “The 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,” U.S. District Court Judge Trevor McFadden opined.  “[T]here is a substantial likelihood that [CoA Institute’s] requested relief would yield access to at least some of the emails at issue.”

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 Powell to 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.  Ultimately, the agency relied on unreliable hearsay—namely, the reported representations of Secretary Powell’s personal secretary about an apparent phone conversation between someone at AOL and a staff member of the House Oversight Committee—to conclude that no records could be recovered.

—-  CoA Institute’s memorandum in support of its motion can be read here.

—-  CoA Institute’s reply brief can be read here.

About Cause of Action Institute

Cause of Action Institute is a 501(c)(3) non-profit working to enhance individual and economic liberty by limiting the power of the administrative state to make decisions that are contrary to freedom and prosperity by advocating for a transparent and accountable government free from abuse.

For more information, please contact Mary Beth Gombita, mbgcomms@gmail.com.

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02/5/2018

CoA Institute Asks Court to Order Enforcement Action in Colin Powell Email Case

Washington, D.C. – Cause of Action Institute (“CoA Institute”) today filed a motion for summary judgment in a lawsuit that seeks to compel Secretary of State Rex Tillerson and U.S. Archivist David Ferriero to fulfill their non-discretionary obligations under the Federal Records Act (“FRA”).  Specifically, CoA Institute has asked the court to order Tillerson and Ferriero to initiate an enforcement action through the Attorney General to recover the work-related email records of former Secretary of State Colin Powell from a personal account hosted by AOL, Inc.

“To date, Defendants have undertaken meagre recovery efforts that have proven entirely ineffectual,” argued CoA Institute.  “None of Secretary Powell’s work-related email records have been recovered.  And Defendants have not proven their fatal loss—the only exception in this case that would excuse their intransigence.  Now is the time to involve the Attorney General, the highest law enforcement authority of the federal government, as contemplated and required by the FRA.”

CoA Institute filed its 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 request.  Just last month, CoA Institute successfully defended its claims against the government’s motion to dismiss.  In denying that motion, U.S. District Court Judge Trevor McFadden highlighted the State Department’s “anemic” recovery efforts and its seeming disregard for the power of leveraging the law enforcement authority exercised by the Attorney General in recovering government records.

Cause of Action Institute President and CEO John J. Vecchione: “Executive Branch officials have no discretion in choosing when to recover unlawfully removed federal records.  For too long, agency leadership—particularly at the State Department—has not been held accountable for its failure to abide by federal record management laws.  Secretary Colin Powell conducted official government business on a private email account; records of his correspondence belong to the federal government and should have been retained for permanent preservation.  We are confident that the law requires more effort to recover the records at issue, including the initiation of an enforcement action through the Attorney General.”

Background

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 the work-related emails of Colin Powell.  After learning that Powell no longer had access to his AOL account or its contents, the State Department merely asked Powell to 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.  Ultimately, the agency relied on unreliable hearsay—namely, the reported representations of Secretary Powell’s personal secretary about an apparent phone conversation between someone at AOL and a staff member of the House Oversight Committee—to conclude that no records could be recovered.

CoA Institute’s memorandum in support of its motion can be read here.

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01/10/2018

State Department Motion to Dismiss Denied in Colin Powell Email Case

Washington, D.C. – U.S. District Court Judge Trevor McFadden has denied the federal 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 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 both failed to act on CoA Institute’s FRA notice and Freedom of Information Act (“FOIA”) request.

Although the government argued it had no reason to believe that copies of Colin Powell’s email records still existed and were recoverable from AOL servers, Judge McFadden rejected that conclusion, describing the State Department’s recovery efforts as “anemic,” particularly in light of the fruitful “leveraging” of law enforcement authority in the case of former Secretary Hillary Clinton.  “The 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,” Judge McFadden opined.  “[T]here is a substantial likelihood that [CoA Institute’s] requested relief would yield access to at least some of the emails at issue.”

Cause of Action Institute President and CEO John J. Vecchione: “Agencies must take their responsibility to secure federal records seriously. For too long, agencies have allowed federal employees to use personal email accounts without ensuring those records are recovered and maintained in accordance with the law.  We are encouraged that the court recognized that agencies must do more to recover lost 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 Colin 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 Powell to 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.  Ultimately, the agency relied on unreliable hearsay—namely, the reported representations of Colin Powell’s personal secretary about an apparent phone conversation between someone at AOL and a staff member of the House Oversight Committee—to conclude that no records could be recovered.

Following yesterday’s ruling on the motion to dismiss, the government Defendants must now either comply with their non-discretionary obligations under the FRA, which requires them to initiate action through the Attorney General to recover unlawfully removed records, or they must proffer new evidence to prove the “fatal loss” and irrecoverability of Colin Powell’s email records from AOL servers.

Judge McFadden’s opinion can be accessed 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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