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11/4/2016

Circuit Court Hears Oral Argument in Cause of Action Institute Federal Records Act Case on Clinton Emails

Today, the Court of Appeals for the D.C. Circuit heard oral arguments in Cause of Action Institute’s lawsuit against Secretary of State John Kerry and Archivist of the United States David Ferriero.  The case originally sought to enforce the officials’ Federal Records Act duties to initiate action through the Attorney General and notify Congress because they were unable to retrieve all of the federal records former Secretary of State Hillary Clinton unlawfully removed from the State Department by setting up a personal email server to conduct official government business.  The district court below dismissed the case as moot because that court believed the State Department had recovered enough of the records and taken enough action short of initiating action through the Attorney General.  The oral argument heard today was on the appeal of that decision.

CoA Institute Vice President John Vecchione argued the case, which was consolidated with a similar case filed by Judicial Watch.  The three-judge panel was engaged on the issues and asked probing questions of both sides.

The oral argument can be heard in its entirety here.

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07/8/2015

Cause of Action Lawsuit Challenges Legality of Hillary Clinton’s Email Practices

Cause of Action sues Secretary of State John Kerry and the National Archivist

for failing to preserve former Secretary Clinton’s electronic records

In the first federal action filed to mandate retrieval of former Secretary of State Hillary Clinton’s records and declare her actions unlawful, Cause of Action filed a lawsuit today to compel Secretary of State John Kerry and U. S. Archivist David Ferriero to comply with their statutory duty to initiate legal action through the Attorney General for the recovery of federal records former Secretary of State Hillary Clinton unlawfully removed from the State Department and stored on her personal server. Federal law requires these agency heads to notify Congress when such action has been taken.

This suit was brought in the in United States District Court for the District of Columbia under the Federal Records Act and Administrative Procedure Act.

[Click HERE to view the complaint]

Cause of Action Executive Director Dan Epstein issued the following statement:

“This case is about no government official being above the law and the duty of Secretary Kerry and Archivist Ferriero to fulfill their statutory obligations to hold former Secretary of State Hillary Clinton accountable for misusing taxpayer funded federal property. Mrs. Clinton’s emails relate to the official business of the United States, thereby requiring treatment as federal records. Even if we were to set aside the catastrophic failure of these agencies to implement and oversee proper record keeping protocols during the former Secretary’s tenure, the refusal to recover the documents now constitutes brazen neglect at best and cover-up of illegal activity at worst.”

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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

Read the full story: Washington Examiner

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

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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02/19/2014

The Fight for Truth, Transparency, and Accountability at the National Archives

For more than two years, Cause of Action has been fighting to gain public access to the Financial Crisis Inquiry Commission (FCIC) documents transferred without restriction in March 2011 by the National Archives and Records Administration (NARA) to the House Committee on Oversight and Government Reform (OGR). The FCIC was a temporary commission created in the legislative branch to investigate the causes of the financial crisis.  Today, Cause of Action advanced oral arguments in the United States Court of Appeals for the District of Columbia Circuit explaining NARA’s wrongful withholding of FCIC records.  NARA’s unsupported position is that these records are not subject to the Freedom of Information Act (FOIA), a position belied by both the facts and law of the case.

We submitted a FOIA to NARA in October 2011 for “all documents, including email communications, memoranda, draft reports and other relevant information and/or data contained in the records transfer of Financial Crisis Inquiry Commission documents stored at NARA to the Committee on Oversight and Government Reform at the U.S. House of Representatives.” A month later, NARA denied our request claiming that the records are not “agency records” and that the FCIC established a five-year restriction on public access to the records.

After our appeal of the FOIA response was denied, Cause of Action filed a lawsuit in August 2012 against NARA for wrongfully withholding records pertaining to the FCIC and claiming these records are not subject to FOIA. NARA filed a request for a dismissal of the case in the District Court for the District of Columbia, which was granted in March 2013. CoA filed a timely appeal In the United States Court of Appeals for the District of Columbia Circuit.

Congress did not address what would happen to FCIC records

We argue that because NARA has possession and complete control of the documents that contributed to the FCIC’s report on the 2008 financial crisis, those documents are subject to FOIA. NARA’s claim is that since the FCIC was a commission created by Congress, FCIC records are per se legislative branch records, which are not subject to FOIA. However, Section 5 of the 2009 Fraud Enforcement Recovery Act (FERA), which established the FCIC, did not address records preservation or dissemination at termination of the commission. Further, no other federal statute suggests that Congress intended to restrict access to these records under FOIA.  And the presumptive disclosure of documents and broad public access under FOIA is further support for the release to the American people of the FCIC records.

 Executive branch agency records are contained within the FCIC records

Cause of Action submitted a March 2, 2011 letter from NARA to OGR to further explain our arguments in an opposition we filed January 24, 2014 in the United States Court of Appeals for the D.C. Circuit. NARA’s letter to OGR is a response to a February 18, 2011 letter from Chairman Darrell Issa requesting records from the Financial Crisis Inquiry Commission (FCIC).

  • The letter reveals that:
  1. NARA knowingly possessed executive agency records as a releasable subset of the FCIC records, and these records were disclosed to OGR by NARA without restrictions of any kind.
  2. NARA specifically contemplated that the records were subject to FOIA.

An FCIC staffer crossed out FOIA language in a transfer form given to NARA

The transfer of the FCIC records to NARA included a transfer letter and Standard Form 258 (SF-258), where the FOIA language was crossed out by hand by a staffer for FCIC Chairman Phil Angelides.  From our opening brief:

“Rather than enumerate a specific FOIA exemption or other legal basis for his desire to restrict public access to the FCIC records, Mr. Angelides, by proxy, crossed out by hand the mandatory FOIA language from the Standard Agreement, and authored an aspirational letter that carries no legal effect. Specifically, his letter “recommended” that NARA restrict access to the records, and “encouraged” the Archivist to carry out these recommendations. Despite Mr. Angelides’s best laid hopes, he cited no legal authority for restricting access.”

Normal NARA transfer letter

Normal transfer letter which states in first paragraph: “The transferring agency certifies that any restrictions on the use of these records are in conformance with the requirements of 5 U.S.C. 552 [FOIA].”

 Transfer Letter Normal

NARA Transfer letter with FOIA crossed out by FCIC staffer

The transfer letter from FCIC to NARA with the section related to FOIA crossed out by a proxy for FCIC Chairman Phil Angelides (highlight added by author).

Doctored Transfer Letter

Legislative Branch files amicus brief against transparency

The Executive and Judicial branches have made it clear that they want to keep the public in the dark on the financial crisis, but in November the legislative branch joined them in opposing transparency. The Bipartisan Legal  Advisory Group (BLAG) made a highly unusual move by filing an amicus brief in support of NARA’s effort to shield the American public from knowing the truth about the financial crisis.  BLAG consists of the five members of House leadership, and was last deployed to defend the Defense of Marriage Act (DOMA) by a 3-2 vote in March 2011.

NJI_CoA_Denied_FB

It is our firm belief that American taxpayers deserve to know what information contributed to the FCIC’s findings on the financial crisis. The “most transparent administration in history” should live up to its promise and release the FCIC records.  After all, the American people paid for the FCIC documents and should be granted full access.

Find all of the court filings for this case here.

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