CAUSE “ACTION [voce for Goverment Recent? “AsoielaNonxft corporation March 9, 2015 VIA E-MAIL ATTN: Chief FOIA Officer (wit Steve A. Linick, Inspector General) USS. Department of State Office of Inspector General Office of General Counsel Freedom of Information Act Officer Washington, DC 20520-0308 E-mail; oigfoiadstate gov Re: Freedom of Information Act Request ‘Dear Inspector General Linick: 1 write on behalf of Cause of Action, a 501(c)(3) nonpartisan strategic oversight group ‘committed to ensuring thatthe regulatory process is transparent, fir, and accountable." In ccarying out its mission, Cause of Action uses various investigative and egal tools to educate the public about the importance of government transparency and accountability. In this regard, ‘Cause of Action is concemed that there are potential violations ofthe law in connection with the lack of maintenance of former Secretary of State Hillary Clinton’s emails while conducting business on bebalf ofthe Government. Accordingly, Cause of Action requests certain ‘documents pursuant tothe Freedom of Information Act, 5 US.C. § $52 (*FOIA") Former Secretary Clinton Conducted Government Business on Private Email, ‘On March 2, 2015, the New York Times reported that Mrs. Clinton, [Elxclusively used a personal email account to conduct goverment business as secretary of state. ... Mrs. Clinton did not have a government email address during her four-year tenure atthe State Department. Her aides took no actions to hhave her personal emails preserved on department servers atthe time, as required by the Federal Records Act "Cause oF ACTON, evllabe ar ww caseofactin ore. 2 Michal S. Sch Hilary Clivon Used Personal Email Account a State Dept Possibly Breaking Ruler,N.. “Tves (Mar. 2, 2013), oo,Honorable Steve A. Linick March 9, 2015 Page 2 ‘The Associated Press added thet Mrs. Clinton's emails were stored on “a personal email server traced back to the Chappaqua, New York,” where she keeps her home.? Although press reports indicate that the White House was aware of Mrs. Clinton's potential breach of protocol at least bby August 2014 (but “defer[red] to Clinton's aides"), Mrs. Clinton didnot reveal the existence of ‘Agencies (and Agency Heads) are Obligated to Preserve Records. ‘The Federal Records Act ("FRA") requires every federal agency, inluding the State Department, to preserve its electronic records in accordance with applicable statues, regulations, and agency policies. In tum, National Archives and Records Administration (NARA) interpretive regulations define “record” as all papers or “documentary materials, regardless of| physical form or characteristics, made or received by an agency ...in connection with the fransaction of public business and preserved or appropriate for preservation by that agency ...as evidence ofthe organization, functions, policies, decisions, procedures, operations or other activites of the Government."® ‘When agency records are unlawfully or accidentally removed, defaced, altered, oF destroyed, the agency must “promptly” notify NARA and produce a comprehensive report® The ‘agency head also must collaborate with the Archivist of the United States to “initiate aetion trough the Attomey General forthe recovery of records he knows or has reason to believe have been unlawfully removed.”” Ifan agency does not contact the Attomey General within reasonable period of time, the Archivist is required todo soon his own, while simultaneously notifying Congres that such a request has been made, ‘The FRA further establishes the framework for records management throughout the federal government and require the head of every agency, such as then-Secretary Clinton, to “establish safeguards against the removal or los of reords."* Agency heads also must “make and preserve records containing adequate and proper documentation ofthe organization, functions, policies, decisions, procedures, and essential transactions of the agency"? Moreover, the State Department's Foreign Affairs Manual (“FAM”) provides direction “with respect to the creation, maintenance, use, and disposition of records, including electronic... and Iter" records” FAM tasks the Seeretary with the primary responsibilty to ensure the agency is > Jack Gilum an Te Bris, Howse commer subpoenas Clinion emails in Bega! prabe, ASSOCIATED PRESS (Ma. 52013), ntp:g00 g/25yWB; ee also JK. Tater, Source: Top Clinton Ades Used Sere Email Account 1a Site Dept, GAWKEt.cOM (Mat. 3, 2015), poo ¢0QM noting chat ober State Department employees ‘lso used private email accounts to eondet goverment busines). ‘ Eaward-saa Davee, White House lerted to potential Clinton email problem in August, POUTICOCOM (Ma. 6, 2013), hop/go gVDxS0B8. S36 CER $1220.18, rd $1230.14 244 USC, § 3106, 1d. $3105 14.8310, ° Dept of Ste, Foreign AMfais Manual a §41(2),evalabe a plgooghIS¥IR.Honorable Steve A. Liniek ‘March 9, 2015 Page 3 preserving its ecord “in accordance with the Federal Records Act"! FAM adopts NARA’s broad definition of “record” as all papers or “documentary materials, regardless of physical form cor characteristics, made or reeived by an agency... in connetion with the transaction of public business and preserved or appropriate for preservation by that agency... as evidence ofthe ‘organization, funtion, policies, decisions, procedures, operations or olher activities of the Government." FAM direts that emails in partieular “must be preserved [because] such messages are considered Federal records under the lav." With regard to classified material, the current FAM provides that employees “must never remove classified materials from goverment custody.""" The previous version of the FAM section on transfers, which was in place during much of Mrs. Clinton’stenue at the State Department, provides that “when seeking to transfer records to state o private organizations «employees must obtain (Record Management Branch] and NARA approval."® ‘The Evidence Indicates Non-Compliance with the Li ‘As set forth above, news reports reflect that Mrs. Clinton had control over her own server hosting official agency emails, including relevant documents responsive to congressional investigations into the terror atacks in Benghazi, Libya. ‘The FRA in addition to binding regulations issued by NARA and the State Department (through its FAM) required then~ Secretary Clinton to preserve her official communications on federal government servers or electronic records systems approved by NARA. Moreover, former-Secretary Clinton took no action during her tenure as Seeretay of State to preserve her personal emails on department servers, as required by the FRA. Based "upon her position asa federal egency head, in addition to numerous inspector general reports finding inappropriate use of personel emails (as discussed below) Mrs. Clinton knew or should hhave known that the failure to preserve her personal emails and the storage of those emails on @ personal server, without specific authorization from the Archivist, constituted a removal of documents or materials without authority and withthe intent to retain such documents oF ‘materials at an unauthorized location. Finally, even if Mrs. Clinton’s use of personal email and server during her tenure as Secretary of State does not constitute removal, the possession of the ‘only copies of oficial agency records as a departing employee on February 1, 2013 would ‘constitute unlawful removal under the FRA and its interpreting regulation. With respect to Mrs. Clinton, thee i no doubt that she had actual knowledge ofthe illegality of removing official records from the federal government. First, NARA has clearly id g4i8. id gis Pia F483 K0. ia §432.40, "51d § 430. The Stat Department hasbeen unable to confim whether Mrs. Clinton wansfered clsifed materi ‘oer personal emal system calling such ingues ota pertinent quesion.” Satenent of Mare Har, Deputy ‘Spokesperson, Dept of State (Ma. 2015), available at p/g00guaeeXn. HHonevr, if Mis, listo had ‘malls regarding, for example, he atacks in Benghal, Libya, he eter the Recore Managemen’ Branch of NARA. They sede be consultedHonorable Steve A. Linick ‘March 9, 2015 Page 4 sated that “agency officials may create Federal records if they conduct ageney business on their personal email accounts.”"* And the Archivst’s own comments sugges that Mes. Clinton did not abide by the regulations in place during her tenure."” Second, during 1995 hearings (regarding Whitewater) a Secret Service agent testified that then-First Lady Clinton directed the ‘unlawful removal of records from the office of Deputy White House Counsel Vincent Foster, ‘who had committed suicide." Moreover, on March 27, 2012, the State Department, under Mr, Clinton's stewardship, reported that it is considered # leading agency in the Executive Branct in records management and received a score of 92 in the most recent records management program evaluation conducted by” NARA.” ‘The report detailed that 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” ‘The evidence shows that Mrs. Clinton had access to and did use the official State Department SMART system, which logged her communications." However, because Mrs. Clinton could access official emails via her personal system, we know that she had access to classified material on her personal computer, such as an agency communication discussing WikiLeaks (which contains portions that are classified). And an email from Paul Elliot, 8 ‘government relations employee at TransCanada, to Nora Toiv in the Secretary’s Office, shows that the office was able to circumvent the SMART system when needec.”? Indeed, despite the agency's claims and its use ofthe SMART system, the Department of State Office of Inspector General ("DOS-O1G”) has issued myriad report exposing the agency's deficiencies in record keeping: ' Orrice oF Mc. BUDGE, EXEC OFICE OFTHE PRESIDOAT & ARCHIVIST OF THE US, NATL ARCHIVES & RECORDS ADMIN, M-I4-16,OLIDANCE ON MANAGING EMAIL 2014) valle at tpg0 gV0DOTBS, " David Com, How Hilary May Hove Volted Government Rules on Emails, MOTHER JONES (Mt. 3, 2015), ada poo gOLAKIS ‘Angie Canon, Pre Turning Mare o Hilary CUnon D'amatoRefzed To Call Her to Test. The Whitewater ‘Commie Has Questions For Her Top aide, Pua.¥ COM (une 26, 1995), poo glpWDIa. "Dep't or STATE. SUMMARY CURRENT STATE OF RECORDS MANAGENENT AT Tie STATE DEPARTMENT at | (Ma, 27,2012), availble at ep Igo0XC¥ a 5 jd a2. SMART operates such that when “Department personne sed cables and record ens copy ofthe ‘message automaticly sen tothe Deparment offical archive, which wah enterprise-wide slestrone ‘epostor.” dat. "Memorandum ftom USDEL SECRETARY on Secretary Cliton's Sumber 26, 2009, Meeting with Mexican Foreign Secretary Espinosa (Oct. 20, 2009), avalaie a hitp:go0. gpm, Memerandm from SECSTATE. WASH DC to AMEMBASSY CAIRO on Secrear Clans May 28, 2009 Meting with Egyptian Demccacy ‘Activists June 2008), avaiable a htpgoogkgeuTi; Memorandum for SECSTATE WASH DC to, ‘AMEMBASSY BAGHDAD on Secretary Clintons December 12,201’ Meting wth agi Foreign Minster Zebar (Dee. 2011, avilable ar nepifgn a1 SNTCY. ® See Memorandum fom SECSTATE WASH DC fo ALL DIPLOMATIC AND CONSULAR POSTS on WikLeaks Working Group Situation Report No, 1 (Dec. 2010, valbe a bp/an0 /ZIN2 2 Emal rom Nora Tol, Offie ofthe Secretary, Dep't of Stare to Pal Elio, TransCanada, Corp, (Nov. 72, 2010) avilable a itpoo gV6MGAZLHonorable Steve A. Linick March 9, 2015 Page 5 ‘# In2014, DOS-OIG concluded thet the Bureau of Conflict and Stabilization Operations “does not have a uniform process forthe storage and organization of files. Files and records are stored in several locations, including the bureau’s network shared drive, SharePoint document libraries, personal emails, and hard drives."™* The Bureau also ‘permitted “[clontracting officer's representatives [to] keep emails and other materials on their personal computers instead of using shared drives or paper file." * In2013, DOS-OIG concluded thet in the Bureau of East Asian and Pacific Affair, the “staff members store official records variously on personal drives, email folders, shared drives, and SharePoint, Bureau shared drive folders are not organized in accordance with Department guidance." #182012, DOS-OIG concluded that in the Bureau of Administration, Global Information Services, Office of Information Programs and Services, “SMART captured 61,156 of an estimated 15 million record emails in te system that should (have been] captured. The (1G team noted that confusion among Department employees an, in some cases, Inadequate performance have resulted in an underuse of SMART'S record email funetion."™? ‘These illustrative examples show that far from being an exemplar of proper records management inthe Executive Branch, the State Department has persistent and dangerous pattem of failing to ‘comply with federal records laws. Pursuant to FOIA, Cause of Action hereby requests access tothe following records, from the time period of January 21, 2009 tothe present: 1. All documents referring or relating to, including but not limited to electronic ‘communications involving, Secretary Clinton. 2. All documents referring o relating to communications with NARA, 3. All documents relating to any review, audit, oF investigation, whether merely considered, ongoing, or completed, concerning Secretary Clinton's compliance with electronic recordkeeping requirements and use of personal devices for agency business. Al documents, including but not limited to electronic communications, including ‘any person atthe White House, the U.S. Department of State, the Clinton Family Foundation, and the Clinton Foundation, referring or relating to any document in Item 3 above. ° Der'T oF Stare, OFFICE INSPECTOR GEN, INSPECTION OF THE BUREAU OF CONFLICT AND STABILZATION (OFeRaTions a 20 (Mar. 201), valle rep goopeWeY' emphasis added). Sisal 23 enghss aed) ® DeP'TOF STATE, OFFICE INSPECTOR GEN, INSPECTION OF THE BUREAU OFEAST ASIN AND PACIFSC AFFAIRS at 26 (Sept. 2013), avalabearbp:goo gl/1WrNp (emphasis ade) 2 Dep't oF Stare, OFFICE INSPECTOR GEN, INSPECTION OF THE BUREAU OF ADMINISTRATION, GLOBAL InfoRMaTion SRvCes, OFCE OF INFORMATION PROGRAMS AND SERVICES at 13 (Set 2012), valle at bpsigoo gISBGRyTHonorable Steve A. Liniek March 9, 2015 Page 6 ‘Request for Expedited Processing Pursuant to FOIA and State Department regulations, Cause of Action hereby requests expedited processing ofthis request One ofthe bass that qualifies e request fr expedited processing is when the “information is urgently needed by an individual primarily engaged in : See 22 CER. § 17117} 1G (providing that one factors “whether the requester has experts inthe subject arenas wells the itenton and billy to disseminate he infomation rth publ")Honorable Steve A. Linick March 9, 2015 Page 7 resulting analysis with the public, whether through Cause of Action’s regularly published on newsletter, memoranda, reports, or press releases. Further, Cause of Astion, a nonprofit organization under section 501(c)(3) of the Internal Revenue Code, does not have @ commer interest in making this request. The requested information will be used to educate the general public about the State Department's treatment of private email accounts. ‘Request co be Classified asa Representative of the News Media For fe status purposes, Cause of Action qualifies asa “represeataive ofthe news media” under FOIA Specifically, Cause of Action gather information of ptential interest 1 @ Sscqment ofthe publi, uses is etrial sil totum raw materials intoadistnet work, and distbtes that work to an audience. Cause of Action gathers the nes it regularly publishes from a variety of soures, including FOIA reqvests, whstleblowers/insiders, and scholarly ‘works. Cause of Acton doesnot merely make aw information available to the public, but aber Aistbutes distinct work products, including arteles, blog poss, invest gative repr, and newsletters.” These distinct works are distributed to the pubic through various medi, including Cause of Action’s website, which has been viewed just under 100,000 :imes inthe past year alove.* Cause of Actin also disseminates news to the public via Twiter and Facebook, and it provides news updates to subseribers vi email ‘The statutory definition ofa “representative ofthe news media" unequivocally contemplates that organizations such as Cause of Acton, which eletcncaly disseminate information and publications via “alternative medial] shall be considered tobe news-media catitis." In ight ofthe foregoing, numerous federal agencies ~ including the State Deparment as recently as December 2014 ~ have appropriately recognized Cause of Aeton's news media statu in connection with its FOTA requests. BSUS. §352(0X9XAKGININ:ZCFR.§ 1711800, > Cause of Action notes thi the agency's dentin of representative ofthe news mea” 122.CFR.§171.11(0) ‘sur of date and lt eof with he earn statutory definition 2 See eg Cause of Aton Launches Online Resource: ExecuiveBranchEarmarkscom, CAUSE OF ACTION (Ser £8,2014) available at tpg gU9384Ai; Legal end Polica lowes Ratsed by the los of Emails ath IRS, (Cause OF ACTON Gly 2074), eaiobe a hp!enegUPaobyix CAUSE OF ACTION GRADING THE ‘Govesnyse: How Tae WitTe House TARGETS DOCUMENT REQUESTERS (Mar. 182014), ovale at nto NB se aso CAUSE OF ACTION, GREEVTECH AUTOMOTIVE: A VENTURE CAPITALIZED BY (CRowris (Sep. 23,2013), evalable a tpigoo INOS; CAUSE OF ACTION, POLITICAL PROFITEERING: HOW Foxtsr Cn EnreRhaises Maxes PRuVATE PROFS AT TE EXPENSE OF AMERICAN TAKPAVERS PART (Aug 2, 2013), available ot Wp goo gVGpPIWR. 5 Google Analytics fr hp ateeton or (on file with Cause of Action), > SUSC.§ S300(@XAXIXI). “See, eg, FOIA Request F2015-106, Fed. Comm'n Comm'n (Dee. 12, 2014; Dept of Sate, 2014-21360 (Dec. 3, 2614) Nat'l Labor Reon Bd (Dee. 1, 2014); FOIA Regus! 301500009", Exp Imp, Bark (Nov. 21, 201s}; FOIA Raqust 2015 OSEC 00771 F, US. Dep't of Aare (OCIO) (Nov 21, 2014); FOIA Request O8 2015 00068, US. Dep't of interior (Of of Sexy) (Nov. 20,2014; FOIA Request CF¥8-2015-049-F, Consumer Fi, Prot. Bureau (Nov. 19,2014; FOIA Request GO-14-307, Dep't of Energy (Nat'l Renewable Energy Lab) (Aug 28, 2014); FOIA Request H0-2014.01580-, Dep't of Brey (Nat Headgurers) (Au. 4, 2014), FOIA Request LR 2014044t, Nari Labor Relations Bd (Jane , 2014; FOUA Request 1401095, Se. & Exch, Com’ (May 7, 2014); FOIA Request 2014-40F0-00236, Dept of liomland Sec. an. 8, 2014), FOIA Request DOC-O8-2014- (00304, Dept of Commerce (Dee. 30,2013}, FOIA Request SF-036, Heath Res. Serv. Admin (Des. 6.2013),Honorable Steve A. Linick March 9, 2015, Page 8 ‘Record Production and Contact Information In an effort o facilitate document review, please provide the responsive documents in electronic form in lew of paper production. If readily reproducible, the production should consist of lad files that are compatible with Concordatce® Evolution. If certain portion of responsive records canbe produced more realy, Cause of Action requests that those records be produced first and thatthe remaining records be produced ona rlling basis as circumstances permit. If you have any questions about this request, please contact me by telephone at (202) 499.4232 or at daniel.epstein@eauseofaction.org. Thaak you for Jour atention to this matter. [EXECUTIVE DIRECTOR FOIA Request 2013-073, Dap of Homeland See. (Ap. 5, 2013) FOIA Request 2012.8MAO2S63F, Dept of ‘Ari. (My 3, 2012; FOIA Request 2012-00270, Dep't of Interior (Fb. 17,2012), FOIA Request 12-00485-, Dep't of Ede. ian. 20,2012).