Records Show Former FBI Chief of Staff Sent White House National Security Council Documents to Personal E-mail Account

Former FBI Chief of Staff James Rybicki forwarded a White House-originated e-mail with a draft speech for then-President Obama to a personal e-mail account in December of 2015. The FBI withheld in full the content of the draft speech after consulting with the White House National Security Council about its release. The e-mail was part of the last production of FBI documents in Cause of Action Institute’s FOIA litigation against the FBI regarding the work-related use of personal e-mail accounts by former FBI Director James Comey and former FBI Chief of Staff James Rybicki.

The final FBI production also includes e-mails from former Drug Enforcement Agency (DEA) Administrator and FBI Chief of Staff Chuck Rosenberg, who repeatedly used a private e-mail account for official business in conversations with former FBI Director James Comey.
It’s concerning to see high ranking officials violating government policies – setting a poor example to those they’re responsible for supervising and undermining the public trust that all public business can be properly archived and disclosed. When public officials conceal their work – the economic and individual rights of taxpayers is at risk, which is why Cause of Action remains vigilant and committed to holding all government officials accountable.

You can view and download the documents from this production here:

The first document production can be viewed here, the second here, and the third here.

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8



Final Release Fourth Production 2 28 2019 (Text)

Investigation Update: The FBI’s Third Production of Documents Showing Personal Email Use by High-Level Employees

Cause of Action Institute (CoA Institute) has obtained a third batch of documents in our investigation of personal email use by former FBI Director James Comey and former FBI Chief of Staff James Rybicki. The FBI’s latest records production is the third of four rolling productions. The first document production can be viewed here and the second here.

The FBI produced 101 pages of records that cover one year of FBI operations calendars between December 2014 and December 2015 that former FBI Chief of Staff James Rybicki forwarded to his personal email account. As with previous document productions, the FBI appears to improperly redact names of FBI employees, even though they can be easily identified. For example, this February 2015 travel manifest redacts Director Comey’s name despite the fact that his speech at the conference is public knowledge according to local press reports: “The training, which began Monday at Foxwoods Resort Casino in Mashantucket, Connecticut, included a keynote address by FBI Director James Comey. The LEEDS training description said it “enables participants to reflect upon and regroup for the next stage of their careers.”
You can view and download the documents here:



18 Cv 1800 File 2 Section 1 Part 2 (Text)

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8

Records Show How Former FBI Director James Comey Misled the DOJ Inspector General About His Personal Email Use

Cause of Action Institute (CoA Institute) has obtained a second batch of former FBI Director James Comey and former FBI Chief of Staff James Rybicki’s emails sent or received on their personal, non-official email accounts to conduct agency business. The FBI’s latest records production is the second of four rolling productions. The FBI reviewed 518 pages of emails and released 439 pages to CoA Institute. Once again, these emails undermine Director Comey’s statements concerning the types of matters he discussed while using his personal email to conduct official business.

Last month, CoA Institute published the first set of records received as part of our FOIA lawsuit. Contrary to Director Comey’s representations to the DOJ that he never used his personal email account for “sensitive work,” the first batch of emails we obtained revealed otherwise. Those records included emails withheld in full and others redacted in part under the FOIA’s law enforcement exemption, which exempts from public disclosure certain sensitive information created or compiled for law enforcement purposes.

This new second batch of emails tells much of the same story. For example, the redactions in the completely redacted email below cite 3 bases for the application of the law enforcement exemption (b7A, C, & E). These exemptions pertain to information that, if released, could (A) interfere with law enforcement proceedings, (C) constitute an invasion of personal privacy, or (E) disclose law enforcement techniques and thereby risk circumvention of the law. In other words, the FBI determined that the work Director Comey conducted on his personal account was so sensitive in nature that it justified redaction under Exemption 7 of the FOIA to prevent disclosure to the public.

As explained in the FBI’s cover letter accompanying the production to CoA Institute, the FBI is only providing emails that Director Comey and his Chief of Staff forwarded or copied to their official FBI email accounts: “The FBI conducted email searches for any communications to or from James Rybicki’s and James Comey’s personal email accounts, located within Rybicki’s and Comey’s FBI email accounts.”  This follows from Director Comey’s claims that all FBI-related work he conducted on Gmail was forwarded to an official FBI account. As Director Comey told the DOJ Inspector General:

“I was always making sure that the work got forwarded to the government account to either my own account or Rybicki, so I wasn’t worried from a record-keeping perspective was, because there will always be a copy of it in the FBI system.”

But if Director Comey misrepresented the nature of the work he conducted on his personal email account, a plausible concern arises as to whether Director Comey thoroughly searched and forwarded all work related emails from his personal account to his government account This is why using private email accounts for government business is so problematic: The agency—and ultimately the public—must rely on the very people who are violating the rules by using personal email accounts to forward their work-related emails to official government accounts. If they forget or choose not to copy an official account, there is little chance the agency will ever search for and recover the federal records created or received on those personal accounts. And that means those records cannot be produced to the public under the FOIA.  The use of non-official accounts to conduct agency business, whatever the reasoning, imperils transparency, accountability, and good government, and it undermines trust.

You can view and download the documents here:

Part 1 (411 pages)

Part 2 (30 pages)

FBI Cover Letter

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8

Thomas Kimbrell is an Investigative Analyst at Cause of Action Institute.

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Media ContactMatt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

FBI Records Show Former FBI Director James Comey’s Use of Personal Email

Cause of Action Institute has acquired former FBI Director James Comey’s work-related emails from his personal Gmail account. Garnered from the FBI through the first of rolling document productions in an ongoing Freedom of Information Act (FOIA) lawsuit, the email records start to shed light on the extent of Comey’s use of private email to conduct agency business.

The problems associated with using personal email for government work are obvious but those caught in the act often try to act like they had no idea they were doing anything wrong or justify their behavior as merely incidental. Cause of Action Institute (CoA Institute) has been at the forefront of shining a light on this behavior,  and first explored the issues raised by government employees using private email for official business in a 2012 journal article: “Gmail.gov: When Politics Gets Personal, Does the Public Have a Right to Know?”  In the six years since that article was published, CoA Institute’s investigations have demonstrated how the use of personal email or messaging apps for government business hinders transparency and accountability.

The ability to shroud government action in secrecy can also harm the economic rights of ordinary Americans. For example, small-scale family fishermen were harmed when the National Oceanic and Atmospheric Administration failed to search private accounts for email records related to onerous regulations that would devastate their business. Government overreach cannot be fought effectively if the process and enforcement are kept in the dark. That’s why CoA Institute is committed to holding the government accountable to transparency laws and has brought cases to uncover the private email use of officials such as former Secretary of State Colin Powell, former Secretary of State Hillary Clinton, and now, former FBI Director James Comey.

On June 14, 2018, after the Department of Justice (DOJ) Inspector General (IG) revealed “numerous instances in which Comey used a personal email account (a Gmail account) to conduct FBI business.” CoA Institute submitted FOIA requests to the Federal Bureau of Investigation (FBI) and the IG to obtain copies of that email correspondence.  After the agencies failed to respond to the requests in a timely fashion, CoA Institute filed a lawsuit on August 1, 2018 to bring transparency to Comey’s use of Gmail, which the IG had concluded was “inconsistent with the DOJ Policy Statement.”

The FBI provided its first rolling production late last week. You can read and download the documents here.

The FBI reviewed 526 pages, released only 156 pages, and withheld 370 pages in full. Notably, the FBI withheld seven emails under the FOIA’s law enforcement exemption, which applies only where the government can show that (1) a law enforcement proceeding is pending or prospective, and (2) release of information about that proceeding could reasonably be expected to cause some articulable harm. These withholdings are particularly troubling given that Director Comey told the IG he only used personal email “to word process an unclassified [document] that was going to be disseminated broadly, [such as a] public speech or public email to the whole organization.” And according to news reports, Comey “stressed that his personal email was never used for classified or sensitive work.”

The e-mails records released to CoA Institute show that Director Comey was aware that his use of personal email for government business would be seen as “embarrassing” to anyone who wasn’t aware of it previously.

The records also show that Director Comey used his Gmail to discuss the FBI’s investigation of Hillary Clinton’s email server. In other words, Comey was using a non-governmental email account while he was investigating Secretary Clinton for the same unlawful behavior.
In this case, as with nearly every instance, when public officials conduct business through unofficial channels, they are denying the public’s right to hold officials accountable through the most fundamentally sound principle of a healthy democracy: Transparency. Cause of Action Institute remains committed to holding government officials at all levels accountable and will continue to report on this case as the DOJ releases the more than 700 pages of Comey related emails that remain outstanding.

The full production can be found here.



FBI Production re Comey Gmails 10.31.18 (Text)

Other CoA Institute investigations of the use of personal email or messaging accounts for government business:

Documents Obtained by Cause of Action Show that Officials Worried About Hillary’s Emails But Took No Action (June 4, 2015)

Off-Grid Government: This Administration’s Pattern of Using Personal Email Accounts (December 22, 2015)

NOAA FOIA Response Suggests Refusal to Search Council Member Email Accounts for Records on At-Sea Monitoring Amendment (February 28, 2018)

CoA Institute Files Reply in Support of Motion to Order Enforcement Action in Colin Powell Email Case (May 4, 2018)

 

Kevin Schmidt is Director of Investigations for Cause of Action Institute. You can follow him on Twitter @KevinSchmidt8

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Media Contact: Matt Frendewey, matt.frendewey@causeofaction.org | 202-699-2018

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.

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.

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.