As unanswered questions about her private email server continue shadowing Hillary Clinton’s presidential campaign, the State Department she once led remains on the receiving end of criticisms, legal actions and disclosure requests involving the Freedom of Information Act.
Most observers are focused on an ongoing FBI investigation of the role of classified information in Clinton’s private email transmissions. But the State Department’s inspector general is also on the case, and an IG spokesman told Government Executive on Tuesday his office “plans to issue another report on records management and security issues related to the use of non-departmental systems.”
Also on Tuesday, the conservative legal group Judicial Watch won a victory in U.S. District Court when Judge Emmett Sullivan agreed to allow a new discovery phase in the group’s FOIA lawsuits against the State Department.
Sullivan, a Bill Clinton appointee who was also appointed to judgeships by presidents Reagan and George H.W. Bush, authorized Judicial Watch—over State’s objections--to submit a plan for “narrowly-tailored discovery” in its probe into whether State staff and Clinton aides thwarted the FOIA process, including during its inquiry into the unusual employment status of Clinton’s former deputy chief of staff, Huma Abedin.
“The court-ordered discovery will help determine why the State Department and Mrs. Clinton, even despite receiving numerous FOIA requests, kept the record system secret for years,” said Judicial Watch President Tom Fitton. “Our proposed discovery, which will require court approval, will include testimony of current and former officials of the State Department. While Mrs. Clinton’s testimony may not be required initially, it may happen that her testimony is necessary for the court to resolve the legal issues about her unprecedented email practices.”
State has previously been vague about which managers, information technology specialists, legal counsel and records preservation officers approved Clinton’s unusual arrangement to conduct official business by email using a private server in her New York home. But Tuesday’s court decision, if Judicial Watch’s preliminary motion is any guide, could require testimony from Undersecretary of State for Management Patrick Kennedy, department Executive Secretary Joseph Macmanus and State Department Director of Information Services John Hackett.
Among those in Clinton’s circle who could be deposed are Abedin, former chief of staff Cheryl Mills, lawyer David E. Kendall and Bryan Pagliano, a technologist on Clinton’s 2008 presidential campaign who helped set up the private server and who invoked his Fifth Amendment rights not to testify last September before the special House panel probing the 2012 Benghazi attacks. Attorneys could also call in employees of Platte River Networks, the company that worked on her server after she left the State Department.
Asked to respond to Tuesday’s discovery motion, a State official said, “The department is aware of the order and we are reviewing it. We would refer you to court filings in this case for all the details we can currently provide. We cannot comment further as this matter is in ongoing litigation.”
Meanwhile, State’s FOIA office has been undergoing changes since the Clinton email story broke in March 2015. Two reports from State’s inspector general provide a glimpse into internal movements, including a set of numbers dramatizing the uptick in FOIA requests involving Clinton. As of Jan. 7, 240 FOIA requests for documents related to Clinton have been logged, compared with 99 for her predecessor Colin Powell, 40 for Condoleezza Rice, 29 for John Kerry and nine for Madeleine Albright. Clinton also has the most FOIA requests still pending, at 177.
Last July, a report by State Department Inspector General Steve Linick reviewed State’s responses to criticism from his intelligence community counterpart, I. Charles McCullough III, that State was not adequately consulting with the Justice Department and the intel agencies when making decisions about which documents were releasable under FOIA requests.
“The Department of State's FOIA processes are consistent with of those of other agencies,” Undersecretary Kennedy wrote. “State's FOIA personnel analyze responsive records for disclosure pursuant to the provisions of the FOIA and apply exemptions to the documents as appropriate. Department FOIA reviewers are trained in applying the exemptions, using guidance made available by the Department of Justice's Office of Information Policy.”
This January, an IG report criticized some of State’s executive office searches for documents targeted by FOIA requests as superficial. “Department leadership has not played a meaningful role in overseeing or reviewing the quality of FOIA responses,” it said. “The searches performed by [State’s executive secretariat] do not consistently meet statutory and regulatory requirements for completeness and rarely meet requirements for timeliness. “
In the department’s defense, the IG added that “although FOIA requires agencies to respond to requests within 20 working days, some requests involving the Office of the Secretary have taken more than 500 days to process. These delays are due, in part, to the department’s insufficient provision of personnel to IPS to handle its caseload.”
The department in September 2015 appointed Janice L. Jacobs to the new position of transparency coordinator. Responding to a draft of the January IG report, she wrote that State “is not alone in dealing with the information management challenges associated with today's fast changing, data-driven world. Many agencies have the same issues: records management/FOIA traditionally have not been a high priority; a new norm of a high volume of requests and litigation cases; staffing and funding shortfalls; outdated technology or technology silos; insufficient records-related internal controls; and insufficient training/education on the importance of effective management of information/records. Secretary Kerry recognizes these challenges and my appointment was one step towards trying to address these matters holistically.”
Joyce Barr, assistant secretary in State’s Bureau of Administration, told the IG that her office is increasing its full-time FOIA staff to improve response time “to FOIA cases that are often broad and extremely complex.” In her letter, she included a request for an additional $8.3 million in fiscal 2016 for salaries for 50 new employees and information technology. (Much of the redacting and review work on requested documents is performed by retired Foreign Service Officers.)
State officials also assured the IG that word is spreading around the department about the importance of proper document preservation. Acting State Executive Secretary MaryKay Carlson said that managers are tasking several levels of employees “to search through their own email accounts for responsive records in FOIA cases. The Executive Secretariat would like to clarify for OIG that this is standard practice department-wide .... The Executive Secretariat would further like to clarify for OIG that [her office] does review the results of all such searches.”
State’s troubles with FOIA are well known to Nate Jones, FOIA project director at the private National Security Archive at The George Washington University, a longtime FOIA user for its historical research. In an email to Government Executive, he cited “years’-long waits, destruction of records including emails, and sometimes a general hostility for the law. Hopefully, this increased scrutiny will bring the problems to the fore and force State to continue attempting to fix these problems.”
Jones recommended that State FOIA processors evolve toward an "inspector general's mentality” when faced with nonresponsive “fishy answers from the Office of the Secretary of State. “FOIA processors should not acquiesce when a senior political aide tells them that she wants to review all FOIAs about the Keystone XL oil pipeline,” he said. “Nor should FOIA processors stand by meekly when embassies ignore or refuse to respond to document searchers in timely fashion,” but actively investigate them. Despite its flaws, Jones said State does have the best electronic FOIA reading room of any federal agency.
The pressures on State’s FOIA staff are not likely to fade soon. Last Friday, the department, in compliance with Judge Sullivan’s ongoing order, released more redacted Clinton emails--562 of them from her tenure, with the final batch due out by the end of February. (The Clinton campaign has repeatedly said it favors release of the emails.)
The judge is also considering, according to Judicial Watch, whether to order the State Department to subpoena all the emails from the now-inactive clinton.com email system.