State Dept. FOIA update
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 1 of 17
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JASON LEOPOLD,
Plaintiff,
v.
Civil Action No. 15-cv-123 (RC)
U.S. DEPARTMENT OF STATE,
Defendant.
JOINT STATUS REPORT REGARDING PRODUCTION SCHEDULE FOR
RECORDS OTHER THAN EMAILS OF FORMER SECRETARY CLINTON
Plaintiff Jason Leopold and Defendant U.S. Department of State (“State”), by
undersigned counsel, respectfully submit this joint status report regarding a production schedule
for the non-exempt portion of responsive records, other than the emails provided to State by
former Secretary Clinton, that are subject to the FOIA. The parties have been unable to reach
agreement regarding a production schedule for those records. Pursuant to the Court’s order of
May 27, 2015 (ECF No. 16), the parties present their respective positions below concerning the
production schedule and how best to resolve the differences between the parties:
BACKGROUND
1.
Plaintiff Jason Leopold initiated this Freedom of Information Act (“FOIA”)
lawsuit against Defendant U.S. Department of State on January 25, 2015. (ECF No. 1). The
Department of State answered the complaint on March 2, 2015. (ECF No. 7).
2.
The parties have engaged in extensive discussion to narrow the scope of the initial
FOIA request. These discussions resulted in the Court’s adoption of the parties’ proposed order
(ECF No. 16) (Order Regarding Scope of Searches) that, among other things, limited the FOIA
Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 2 of 17
request (the “Narrowed FOIA Request”) to (1) all records provided to the Department of State by
former Secretary of State Clinton as described in Paragraph 10 of the Declaration of John F.
Hackett (ECF No. 12-1) (“the Clinton emails”), and (2) all records from the files of several
named former State Department officials related to 11 enumerated topics.
3.
Because the parties had not yet reached agreement regarding the searches for
three topics in part (2) of the Narrowed FOIA Request, the Court ordered the parties to “engage
in discussions to develop machine-searchable terms reasonably calculated to discover records
responsive” to those topics and to file a status report regarding those discussions by June 18,
2015.
4.
The Court further ordered that Defendant “shall begin conducting searches for
records responsive to part (2) of the Narrowed FOIA Request by not later than June 1, 2015, and
shall produce the first rolling production of non-exempt portions of responsive records subject to
the FOIA by no later than September 1, 2015.” (ECF No. 16).
5.
Additionally, the Court ordered the parties to confer “regarding the schedule for
subsequent rolling productions of records responsive to part (2) of the Narrowed FOIA Request,”
and to submit a joint status report on or before September 8, 2015 “informing the Court (i)
whether they have reached agreement regarding the schedule for subsequent rolling production
of records responsive to part (2) of the Narrowed FOIA Request; (ii) if they have reached
agreement, the details of that schedule; and (iii) if they have not reached agreement, each party’s
position and a proposal for resolving the issue.” (ECF No. 16).
6.
In their joint status report of July 20 (ECF No. 21), the parties reported that they
had made significant progress towards reaching agreement. Specifically, the parties reported that
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they had reached agreement regarding search terms for two of the three topics discussed in
paragraph 3, infra, and had narrowed the areas under discussion with respect to the remaining
topic. Upon consideration of this status report, the Court issued a minute order on July 21, 2015,
requiring, among other things discussed in Defendant’s statement below, the parties to file a
further status report on August 20, 2015, regarding the status of further discussions.
7.
The parties have concluded their discussions and reached agreement regarding the
scope of records to be searched as well as terms for searching electronic records for material
responsive to part (2) of the Narrowed FOIA Request. The scope and search terms to which the
parties agreed beyond what is contained in the Court’s Order of May 27, 2015 (ECF No. 16) are
set forth in the parties’ August 20, 2015 filing, Joint Status Report Regarding Search Terms and
Defendant’s Statement Regarding the Progress of Searches (ECF No. 27).
8.
However, the parties have not reached agreement regarding the schedule for
subsequent rolling productions of records responsive to part (2) of the Narrowed FOIA Request,
and each party’s position is set forth below.
9.
On September 4, 2015, Defendant filed a motion to stay regarding “those portions
of a second order the Court issued on May 27, 2015 (ECF No. 16), as it pertains to the
documents recently provided to State by the former employees.” (ECF No. 30, ¶ 3). Plaintiff
intends to respond to this motion in a separate filing and does not attempt to address the
substance of that motion herein.
DEFENDANT’S POSITION REGARDING SCHEDULE
10.
Plaintiff’s original FOIA request, unbounded by any subject matter, would have
required searches at every office, component, and bureau within the Department for documents
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that mention or refer to the former Secretary as well as production of the non-exempt portions of
all records prepared by anyone in the Office of the Secretary, including former Secretary
Clinton, regarding any subject, for four years. The parties have engaged in extensive discussion
to narrow the scope of the initial extremely broad FOIA request. These discussions resulted in
the Court’s adoption of the Order Regarding Scope of Searches that, among other things, limited
the FOIA request to (1) all of the Clinton emails, and (2) all records from the files of former
Secretary Clinton, Philippe Reines, Huma Abedin, Cheryl Mills, each person who served as the
Counselor to the Secretary from January 21, 2009 to February 1, 2013, and each person who
served as a Deputy Secretary of State (both (D) and (D-MR)) from January 21, 2009, to February
1, 2013 related to the following 11 topics (“the other 11 requests”):
a. Boko Haram;
b. Wikileaks, including Julian Assange and Chelsea (aka Bradley) Manning;
c. Occupy Wall Street;
d. Rendition of Abu Omar;
e. “High Value Interrogation Group”;
f. Efforts to capture or kill Osama Bin Laden;
g. The Bagram and Parwan facilities; and
h. Keystone Pipeline
i. “The CIA torture or ‘enhanced interrogation’ program including, but not
limited to the use of the technique commonly called ‘waterboarding’, as
well as CIA foreign prisons, detention facilities, and black sites run or
used by the CIA to hold detainees or other persons detained by or on
behalf of the U.S. government or any subdivision thereof.”
j. “Use of a private email account, or private email server or FOIA or
Privacy Act limitations by any employee within the State Department
including but not limited to Secretary Clinton.”
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k. “[Palestinian] statehood, the Gaza flotilla, Israeli raids in Gaza, and/or
human rights issues in Palestinian territory.”1
Although the Narrowed FOIA Request is narrower than the nearly all-encompassing original
request, it is still very broad: 12 separate FOIA requests covering a range of topics and
individuals. State proposes that the Court permit it to focus on the first, and biggest, of the
requests, the production of the Clinton emails, before moving on to the other 11 requests, so that
it can allocate its scarce FOIA-processing resources to allow it to meet its obligations to the
Court and to other FOIA plaintiffs.
11.
State has devoted a significant portion of its FOIA-processing resources to
carrying out the Court’s order (ECF No. 17) regarding the first part of Plaintiff’s 12-part FOIA
request, which requires monthly productions of the Clinton emails. This order requires State to
aspire to meet cumulative monthly targets as it posts on its FOIA website the non-exempt
portions of almost 53,0002 pages of Clinton emails by January 29, 2015. State is committed to
meeting that schedule; to date, State has produced more than 25% of the pages responsive to the
first part of Plaintiff’s FOIA request and is slightly ahead of the cumulative target.
12.
This enormous undertaking comes at a time when State’s resources for processing
FOIA requests are strained to the limit. At the end of Fiscal Year 2014, State had 10,965 FOIA
requests pending; since then, as of July 15, 2015, State has received approximately 16,517 new
1
The parties have agreed to search terms regarding topics i-k. See Joint Status Report of August 20, 2015 at 2-3
(ECF No. 27).
2
The number of pages provided by former Secretary Clinton was originally estimated as “approximately 55,000.”
Decl. of John Hackett ¶ 10 (ECF No. 12-1). However, once the digitizing process was complete, State was able to
provide a more precise count. See Def.’s Status Report at 1, Leopold I (D.D.C. Sep. 8, 2015) (ECF No. 31)
(reporting that former Secretary Clinton provided 53,988 pages, of which approximately 1,533 were identified, in
consultation with the National Archives and Records Administration, as “entirely personal correspondence, that is,
documents that are not federal records,” leaving approximately 52,455 pages).
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requests and is currently engaged in 87 FOIA litigation cases in multiple districts, many of which
involve court-ordered document production schedules. This dramatic increase in workload has
occurred while funding for State’s operating account, which funds Department operations around
the world, including the FOIA program, has decreased in real terms.3
13.
State has begun conducting searches for records potentially responsive to the
other 11 requests and has, to date, uncovered approximately 4,000 documents. At this time, it is
not possible to estimate the number of pages these documents comprise. Approximately six
hundred of these documents are between two and 50 pages in length, skewing toward the higher
end of that range. The remaining documents are emails from the state.gov accounts of Ms.
Abedin, Ms. Mills, Thomas Nides, and William Burns. These emails are typically one to three
pages in length, but many of them have attachments, at least some of which are 300 pages in
length.4
14.
These searches are not yet complete. For example, the retired files of Mr. Reines,
including his state.gov email accounts, and the state.gov email accounts of two former Deputy
Secretaries, Jack Lew and James Steinberg, are still being searched. In addition, State is
continuing to conduct relevancy reviews, which will allow it to identify additional search terms
that may be necessary to identify potentially responsive documents or to exclude documents that
3
Appropriated funding for Diplomatic and Consular Programs Ongoing Operations, from which State’s FOIA
program is funded, has been reduced by 15.9% since sequestration in FY 2013. At the same time, annual Federal
pay raises and overseas inflation are increasing annual operating costs by at least 3% annually. Declaration of John
Hackett ¶ 10, Associated Press v. State, 15-cv-345 (RJL) (ECF No. 11-1) (July 21, 2015). For instance, the
Department spent approximately $16.5 million in FY 2013 and $15.9 million in FY 2014 on FOIA personnel costs
associated with processing requests outside of litigation. See id.
4
Plaintiff’s assertion that his estimate of 15,000 pages is “intentionally high,” see ¶ 36, is without basis.
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were initially identified as potentially responsive but in fact turn out to be irrelevant to the
requests.5
15.
16.
State proposes the following schedule:
a.
While it continues to review and release the remaining portions of the
Clinton emails, State will continue to conduct searches to identify records
potentially responsive to the other 11 requests.
b.
By December 31, 2015, State will provide to Plaintiff the number of
potentially responsive documents to be reviewed; these numbers will be
broken down by topic and by the official from whose files the records
came.6 State will also provide to Plaintiff a proposed production plan
stating the frequency of rolling productions and the number of rolling
productions it anticipates will be required to review the potentially
responsive documents.
c.
The parties will confer during January 2016 to try to develop a mutually
agreeable production schedule. During this time, Plaintiff will provide to
State his priority regarding the 11 topics, so that it can be taken into
account when setting a production schedule.
d.
By January 29, 2016, the parties will file a joint status report setting forth
their proposed production schedule (if agreement has been reached) or
their respective positions (if agreement has not been reached). Once the
production of the Clinton emails is complete, State will begin reviewing
the records potentially responsive to the other 11 requests, according to the
priority order provided to State by Plaintiff in ¶ 5.c, supra.
This proposal equitably balances Plaintiff’s interests with those of State as well as
other FOIA requesters. Under this proposal, State will continue dedicating significant resources
5
In addition, the documents recently provided to State by Ms. Mills, Ms. Abedin, and Mr. Reines have not yet been
searched. These documents are the subject of State’s motion for designation of a coordinating judge to manage
common issues of law, procedure, and fact across more than 30 cases implicating the search and production of the
responsive, non-exempt portions of documents that were provided to State by former Secretary Clinton and certain
other former employees. See Notice Regarding Motion for Designation of Coordinating Judge (ECF No. 28) (Sep.
2, 2015) (“Coordination Motion”); In re U.S. Dep’t of State FOIA Litigation re Emails of Certain Officials, Misc.
No. 15-1188 (Sep. 2, 2015). State has moved for a stay of those aspects of the case addressing the recently provided
documents. (ECF No. 30). The Court has called for responses to the coordination motion to be filed no later than
Monday, September 14.
6
Some records may not be attributable to a single custodian; the number of such records will be broken out
separately.
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to Plaintiff’s FOIA request, both to release of the Clinton emails, all of which are responsive to
the first part of his request, and to finish the process of identifying the documents that are
potentially responsive to the other 11 requests.
17.
Plaintiff asks the Court to add 2,000 pages per month to State’s quota for this
case—a more than 25% increase over the average rate contemplated in the Court’s schedule
regarding the Clinton emails—while attempting to use State’s commitment to meeting that
schedule to imply that State has additional resources to dedicate to his 11 other FOIA requests,
see ¶ 30, infra. It is true that in May, State committed to dedicating more resources to the
Clinton email review and production process in order to accommodate the Court’s requirement
that State release the Clinton emails via rolling productions, rather than in one batch at the end of
the review process as State had originally contemplated and proposed. See Defendant’s Notice
in Response to Court’s Order of May 19, 2015 at 2 (ECF No. 13); Declaration of John F. Hackett
¶ 11 (ECF No. 12-1). But State has no FOIA-processing personnel sitting idle and no more
resources to devote to Plaintiff’s requests, which are already taking up more than his fair share of
the agency’s resources.7
18.
Indeed, Plaintiff’s extremely broad request requires an inordinate amount of time
and effort. Although it is true that other FOIA requesters benefit from release of the Clinton
emails, Plaintiff’s request for the entire Clinton email collection is far broader than all but a few
related requests. Even if the Court were to pro-rate the effort involved in releasing the Clinton
7
If the Court desires more detail concerning the resources available at State for FOIA process, State respectfully
refers it to the Declaration of John Hackett, Associated Press, (ECF No. 11-1), which discusses State’s FOIA staff in
some detail, id. ¶ 18, and to the Supplemental Declaration of John Hackett Ex. 4, Associated Press (ECF No. 16-1),
which is a chart reflecting many of the FOIA cases in which State has either a court ordered or agreed upon
production schedule.
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emails across all the cases in which some of them are responsive, it would still be true that a
disproportionate share of FOIA resources are being dedicated to Plaintiff’s request. State’s
proposal allows it to address FOIA requests at issue in other cases while still working
continuously and at a rapid pace on Plaintiff’s request; Plaintiff’s proposal, on the other hand,
elevates his request above those at issue in 86 other cases and hundreds of FOIA requests not yet
in litigation.
19.
Finally, Plaintiff contends that State’s production of September 1 is insufficient.
¶ 22, infra. As explained in the letter provided to Plaintiff on that date, State devoted as many
resources as it could to this case, bearing in mind its obligations in other cases, the resource
shortages it faces, and its ongoing efforts to release the Clinton emails that are responsive to the
first part of Plaintiff’s FOIA request. In the end, all State could complete before September 1
was the Glomar determination with respect to the request for documents relating to the alleged
“[r]endition of Abu Omar.” Plaintiff’s assertion that this Glomar response is inconsistent with
responses issued in a different case (DeSousa v. Central Intelligence Agency, et al.), see ¶ 24,
infra, is baseless. As Plaintiff himself admits, the FOIA requests in that case relate to the alleged
rendition of Abu Omar only “in part.” See n.8, infra; see also Complaint ¶ 50, DeSousa, 14-cv1951 (BAH) (ECF No. 1) (D.D.C. Nov. 19, 2014) (listing 10 separate topics covered by the
FOIA request in that case). State has repeatedly notified both the Court and the plaintiff in that
case (who is represented by Jeffrey Light, who appears in this case on behalf of Plaintiff) that it
“intends to assert a partial Glomar response” in response to those FOIA requests. See, e.g., Joint
Status Report at 1-2, DeSousa (ECF No. 16). The assertion of a partial Glomar in a case that is
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only in part about the alleged rendition of Abu Omar is consistent with the assertion of a Glomar
over the narrower request at issue here.
PLAINTIFF’S POSITION REGARDING SCHEDULE
20.
Plaintiff’s proposes with respect to the schedule for production of records
responsive to part (2) of the Narrowed FOIA Request that the Court order Defendant to: (1)
complete its search for potentially responsive records no later than October 30, 2015;8 and, (2)
provide monthly rolling productions of non-exempt portions of responsive records based on a
review for releasability of at least 2,000 unique pages per month on or before the first of each
month electronically by email beginning September 30, 2015; and, (3) complete its review and
production of all non-exempt portions of responsive records on or before February 29, 2016.
21.
Plaintiff’s proposal is based on numerous considerations including: (1)
Defendant’s failure to meet the September 1, 2015 production deadline; (2) Defendant’s apparent
bad faith in missing that deadline; (3) Defendant’s failure to provide material details regarding
the nature and extent of its FOIA search, review, or production obligations to justify deviation
from the template of rolling monthly productions established in this case; and (4) the importance
of the records requested in this case in light of recent revelations of the possible mishandling of
classified and other sensitive information.
22.
First, Defendant violated the Court’s Order Regarding Scope of Searches entered
on May 27, 2015 (ECF 16) by failing to conduct any search for, or produce, even a single page
8
Defendant was ordered to begin its search for records responsive to part (2) of the Narrowed FOIA Request by
June 1, 2015. (ECF No. 16). Plaintiff believes that four months is a sufficient and reasonable amount of time to
complete the search for records responsive to this aspect of Plaintiff’s FOIA request, particularly in light of
Plaintiff’s understanding that a material portion of the search function is performed by persons outside the FOIA
office such that pending FOIA obligations are not a significant impediment to conducting many aspects of the
search.
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responsive to part (2) of the Narrowed FOIA Request by September 1, 2015, or by asserting that
it could not produce any pages which were reviewed due to applicable FOIA exemptions.
Instead, Defendant provided Plaintiff with a letter on September 1, 2015, attached hereto as
Plaintiff’s Exhibit 1, stating in relevant part that,” the Department will neither confirm nor deny
the existence of records responsive to the part of your request seeking access to information
regarding ‘Rendition of Abu Omar’. 5 U.S.C. § 552(b)(1).”
23.
The letter continues, “The Department had hoped to provide a more robust
production, but technical issues combined with the devotion of so many resources to the effort to
produce the emails of former Secretary Clinton prevent that from happening.” Pl. Ex. 1. Despite
Defendant’s suggestion that its “Glomar” assertion constitutes a production, it clearly does not.
While it does respond to one aspect of part (2) of the Narrowed FOIA Request, the response did
not involve a search for responsive records, or review of even a single page for responsiveness or
releasability. In fact Defendant’s letter tacitly admits a failure to produce by citing undefined
“technical issues” and other production obligations.9
24.
Second, Defendant’s issuance of a full, categorical “Glomar response” regarding
the “Rendition of Abu Omar” in this case is inconsistent with its position in other, currently
pending litigation in which some records related to the rendition of Abu Omar have been
released by Defendant.10 Because Defendant has already released certain records related to the
9
As discussed further below, Defendant asserted on August 7, 2015 that its own review was ahead of the Court’s
schedule with respect to the Clinton email production due August 31. (ECF Nos. 22, 22-1). The assertion in its
September 1, 2015 letter that it could not review and produce even a single page responsive to part (2) of the
Narrowed FOIA Request on September 1 is astonishing. Pl. Ex. 1.
10
FOIA request case number F-2014-08802 requests, in part, records regarding the rendition of Abu Omar and is the
subject of litigation before this court in the case styled DeSousa v. Central Intelligence Agency, et al., 14-cv-1951
(BAH) (filed Nov. 19, 2014).
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rendition of Abu Omar, it cannot possibly be successful in its assertion of a full “Glomar
response” in this case. Therefore, the letter containing this assertion which Defendant provided
pursuant to its September 1, 2015 production obligation cannot be taken seriously as a legitimate,
good-faith production in compliance with the Court’s order.
25.
Instead, Defendant’s issuance of the categorical “Glomar response” seems little
more than a transparent tactic to appear to meet the Court’s production deadline of September 1,
2015 without doing any of the actual work involved in conducting a search, reviewing
responsive records and producing those records. Not only does Defendant’s tactic fail to meet
the definition of either a search or a production, it will assuredly lead to costly and timeconsuming litigation over the inconsistent “Glomar response” in the future, and utterly
disregards Plaintiff’s rights under FOIA, and the duty not to waste judicial resources.11
26.
Defendant’s assertion that it was prevented from making “a more robust
production” beyond its “Glomar response” by September 1, 2015 due to its other production
requirements – an argument Plaintiff expects Defendant will rely on heavily in its proposal for
future productions in this case – remains unsubstantiated by any concrete facts. In fact,
Defendant’s own statements to this Court contradict the assertion that it cannot meet current
production obligations.
27.
On August 7, 2015, Defendant filed a status report and supporting declaration in
connection with its obligation pursuant to the Court’s Order of May 27, 2015 to “explain in
detail in its status report how it intends to catch up with the schedule by adding resources or
otherwise,” (ECF. No 17) in which Defendant asserted that the cause of its failure to meet the
11
Plaintiff is not at this time asking the Court to rule on the issue of the legitimacy of the “Glomar response.”
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production goals in this case regarding the Clinton emails was due solely to the addition of a new
review step by 5 intelligence community agencies. (ECF Nos. 22, 22-1).
28.
Defendant made no mention that any delay was assignable to its own staffing
levels, and, in fact, made clear that Defendant’s own review was ahead of schedule. The
Director of the Office of Information Programs and Services (“IPS”) for the U.S. Department of
State, John F. Hackett, asserted under oath on August 7, 2015 that, “[His] belief that the
Department can get back on track by the end of September is further informed by the fact that the
number of emails that have cleared the other steps in the Department’s review process meets or
exceeds the milestones in the original plan developed to comply with the Scheduling Order.”
(Second Declaration of John F. Hackett, ECF No. 22-1 ¶ 8).
29.
Defendant even highlighted the fact that its own review is ahead of schedule in
the August 7, 2015 status report, “The Hackett Declaration also explains that the number of
emails that have cleared the other steps in the Department’s review process meets or exceeds the
milestones in the original plan developed to comply with the Scheduling Order. Hackett Decl. ¶
8.” (ECF. No. 22 fn. 3). The context of the footnote makes clear that the “other steps” to which
it refers are those originally established by and applied by Defendant and excludes only the new
review being performed by the five external intelligence community agencies.12
30.
Similarly, Defendant has previously represented to the Court that additional FOIA
resources may be available. On May 26, 2015, Defendant represented in response to an order to
propose rolling productions in this case that, “it is committed to reallocating further resources to
accommodate the additional effort required by rolling productions so that it can still complete the
12
See Second Declaration of John F. Hackett, ECF No. 22-1 ¶¶ 3-4.
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production on or before the Department’s initial proposed deadline of January 15, 2016.”
(Notice in Response to Court’s Order of May 19, 2015, ECF No. 13 p. 2). Defendant has yet to
assert that these resources have been exhausted or even that they have yet been assigned to meet
obligations imposed on Defendant in this or any other case.
31.
Third, Defendant has not provided specific, detailed information suggesting that it
does not have sufficient resources to comply with production orders in this case (or due to
competing or conflicting orders in related cases). For example, Defendant fails to explain the
nature of the “technical difficulties” cited in its September 1, 2015 letter that it is or has been
facing, or what steps are being taken to address these technical difficulties. See Pl. Ex. 1.
32.
Though Defendant frequently asserts it may not have the resources to meet
existing review and production obligations, 13 it has failed to state with any specificity what
review roles are short staffed, at which step or steps in the review process bottlenecks are
occurring, and/or what other staffing or resource issues may exist. Absent a detailed explanation
of the nature and extent of the challenges facing Defendant to meet court-ordered search, review,
and production obligations, and the resources available and assigned to respond to them,
including the alleged pool of available resources referenced on May 26, (ECF. No. 13), any
suggestion the Defendant cannot immediately begin producing records in response to part (2) of
the Narrowed FOIA Request which was ordered to begin September 1, 2015 and continue
thereafter on a rolling basis, should be met with skepticism.
13
See, e.g., Pl. Ex. 1, and, Joint Status Report filed on July 31, 2015, (ECF No. 17) in Leopold v. Department of
State, 14-cv-1760, (which is also subject to Defendants request for coordination in related case 15-mc-1188) (“As
noted in previous joint status reports, in the time since agreeing to the proposed production schedule, Defendant has
experienced a significant increase in new FOIA request and lawsuits which has substantially increased the burden on
Defendant’s limited FOIA staff and resources. While Defendant has worked diligently to meet the processing and
production requirements in this case, it may not have the resources necessary to do so in the future.”).
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33.
Fourth, it is highly likely that the records responsive to part (2) of the Narrowed
FOIA Request contain information highly relevant to the 2016 presidential election. The Clinton
email records Defendant has produced in this case have been the source of intense public and
media attention, and have resulted in new information reaching the public about the handling of
classified and sensitive information by a presidential candidate and her closest staff. The records
sought in this case are for Clinton’s non-email records, as well as for paper, email, and other
electronic records of her closest staff including Cheryl Mills, Huma Abedin, and others working
within and closely with the Office of the Secretary (S).
34.
Plaintiff’s proposal balances Defendant’s known production obligations in this
and other cases with the importance of the records being sought and the delays to their
production since the FOIA request was received by Defendant on or before November 24, 2014.
See Compl. ¶ 13 (ECF No. 1). However, because Defendant has not disclosed the total volume
of records responsive to this aspect of Plaintiff’s FOIA request,14 Plaintiff lacks sufficient
information to propose an exact page total or percentage to be reviewed and produced each
month similar to the Court’s order applicable to the Clinton emails (ECF No. 17).
35.
In recognition of this fact, Plaintiff instead asks the Court to establish a search
completion date of October 30, 2015, a production end-date of February 29, 2016, and monthly
productions beginning September 30, 2015 based on a reasonably obtainable 2,000 page-review
commitment. The search completion date, coupled with the production end-date and the
monthly page-review requirement will allow productions to proceed at a reasonable pace up to
14
In the August 20, 2015 Joint Status Report Regarding Search Terms and Defendant’s Statement Regarding the
Progress of Searches (ECF No. 27), Defendant stated that its search had already yielded approximately 1,270
records. On September 4, 2015, Defendant provided an update to Plaintiff, through counsel, that the ongoing search
had thus far yielded approximately 4,000 potentially responsive records.
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and beyond the end of the productions of the Clinton emails, without creating an unreasonable
burden on Defendant.
36.
Using an intentionally high estimate of 15,000 pages for the volume of responsive
material, Plaintiff’s proposed schedule would provide ample time for Defendant to complete
productions before “Super Tuesday” on March 1, 2016, the day on which Americans in at least
11 states will go to the polls.15 Even if Defendant produced only at the end of January and
February of 2016, after its completion of the Clinton email productions, Defendant would only
need to produce 7,500 pages each month, substantially fewer pages than is currently due in any
of the last three months under the Court’s May 27, 2015 order governing the Clinton emails
(ECF No. 17).16
37.
For the reasons stated above, Plaintiff respectfully requests, with respect to the
schedule for production of records responsive to part (2) of the Narrowed FOIA Request, that the
Court order, Defendant to: (1) complete its search for potentially responsive records no later than
October 30, 2015; and, (2) provide monthly rolling productions of non-exempt portions of
responsive records based on a review for releasability of at least 2,000 unique pages per month
on or before the last business day of each month electronically by email beginning September 30,
2015; and, (3) complete its review and production of all non-exempt portions of responsive
records on or before February 29, 2016.
15
http://www.nytimes.com/interactive/2016/us/elections/primary-calendar-and-results.html?_r=0 (Last visited Sept.
7, 2015). Because primary dates are undecided in over a dozen states, even more states’ electoral votes may be
decided on or before March 1, 2016. Id.
16
The Court’s May 27, 2015 order establishing a production schedule for the Clinton emails calls for the production
of 15% of the total number of pages of Clinton emails, or approximately 7,869 pages in November, an additional
16%, or approximately 8,393 pages in December, and an additional 18%, or approximately 9,442 pages, in January.
These calculations are based on the revised estimate of 52,455 pages of Clinton emails provided in Defendant’s
Status Report Regarding Release of Records on July 31, 2015 (ECF No. 22 ¶ 2).
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 17 of 17
Date: September 8, 2015
Respectfully submitted,
/s/ Ryan S. James
RYAN S. JAMES
D.C. Bar #496272
5208 Capricorn Loop
Killeen, TX 76542
(254) 289-7459
[email protected]
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Branch Director
/s/ Robert J. Prince
ROBERT J. PRINCE (D.C. Bar No. 975545)
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel: (202) 305-3654
[email protected]
JEFFREY L. LIGHT
D.C. Bar #485360
1712 Eye St., NW
Suite 915
Washington, DC 20006
(202) 277-6213
[email protected]
Counsel for Defendant
Counsel for Plaintiff
- 17 -
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JASON LEOPOLD,
Plaintiff,
v.
Civil Action No. 15-cv-123 (RC)
U.S. DEPARTMENT OF STATE,
Defendant.
JOINT STATUS REPORT REGARDING PRODUCTION SCHEDULE FOR
RECORDS OTHER THAN EMAILS OF FORMER SECRETARY CLINTON
Plaintiff Jason Leopold and Defendant U.S. Department of State (“State”), by
undersigned counsel, respectfully submit this joint status report regarding a production schedule
for the non-exempt portion of responsive records, other than the emails provided to State by
former Secretary Clinton, that are subject to the FOIA. The parties have been unable to reach
agreement regarding a production schedule for those records. Pursuant to the Court’s order of
May 27, 2015 (ECF No. 16), the parties present their respective positions below concerning the
production schedule and how best to resolve the differences between the parties:
BACKGROUND
1.
Plaintiff Jason Leopold initiated this Freedom of Information Act (“FOIA”)
lawsuit against Defendant U.S. Department of State on January 25, 2015. (ECF No. 1). The
Department of State answered the complaint on March 2, 2015. (ECF No. 7).
2.
The parties have engaged in extensive discussion to narrow the scope of the initial
FOIA request. These discussions resulted in the Court’s adoption of the parties’ proposed order
(ECF No. 16) (Order Regarding Scope of Searches) that, among other things, limited the FOIA
Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 2 of 17
request (the “Narrowed FOIA Request”) to (1) all records provided to the Department of State by
former Secretary of State Clinton as described in Paragraph 10 of the Declaration of John F.
Hackett (ECF No. 12-1) (“the Clinton emails”), and (2) all records from the files of several
named former State Department officials related to 11 enumerated topics.
3.
Because the parties had not yet reached agreement regarding the searches for
three topics in part (2) of the Narrowed FOIA Request, the Court ordered the parties to “engage
in discussions to develop machine-searchable terms reasonably calculated to discover records
responsive” to those topics and to file a status report regarding those discussions by June 18,
2015.
4.
The Court further ordered that Defendant “shall begin conducting searches for
records responsive to part (2) of the Narrowed FOIA Request by not later than June 1, 2015, and
shall produce the first rolling production of non-exempt portions of responsive records subject to
the FOIA by no later than September 1, 2015.” (ECF No. 16).
5.
Additionally, the Court ordered the parties to confer “regarding the schedule for
subsequent rolling productions of records responsive to part (2) of the Narrowed FOIA Request,”
and to submit a joint status report on or before September 8, 2015 “informing the Court (i)
whether they have reached agreement regarding the schedule for subsequent rolling production
of records responsive to part (2) of the Narrowed FOIA Request; (ii) if they have reached
agreement, the details of that schedule; and (iii) if they have not reached agreement, each party’s
position and a proposal for resolving the issue.” (ECF No. 16).
6.
In their joint status report of July 20 (ECF No. 21), the parties reported that they
had made significant progress towards reaching agreement. Specifically, the parties reported that
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 3 of 17
they had reached agreement regarding search terms for two of the three topics discussed in
paragraph 3, infra, and had narrowed the areas under discussion with respect to the remaining
topic. Upon consideration of this status report, the Court issued a minute order on July 21, 2015,
requiring, among other things discussed in Defendant’s statement below, the parties to file a
further status report on August 20, 2015, regarding the status of further discussions.
7.
The parties have concluded their discussions and reached agreement regarding the
scope of records to be searched as well as terms for searching electronic records for material
responsive to part (2) of the Narrowed FOIA Request. The scope and search terms to which the
parties agreed beyond what is contained in the Court’s Order of May 27, 2015 (ECF No. 16) are
set forth in the parties’ August 20, 2015 filing, Joint Status Report Regarding Search Terms and
Defendant’s Statement Regarding the Progress of Searches (ECF No. 27).
8.
However, the parties have not reached agreement regarding the schedule for
subsequent rolling productions of records responsive to part (2) of the Narrowed FOIA Request,
and each party’s position is set forth below.
9.
On September 4, 2015, Defendant filed a motion to stay regarding “those portions
of a second order the Court issued on May 27, 2015 (ECF No. 16), as it pertains to the
documents recently provided to State by the former employees.” (ECF No. 30, ¶ 3). Plaintiff
intends to respond to this motion in a separate filing and does not attempt to address the
substance of that motion herein.
DEFENDANT’S POSITION REGARDING SCHEDULE
10.
Plaintiff’s original FOIA request, unbounded by any subject matter, would have
required searches at every office, component, and bureau within the Department for documents
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 4 of 17
that mention or refer to the former Secretary as well as production of the non-exempt portions of
all records prepared by anyone in the Office of the Secretary, including former Secretary
Clinton, regarding any subject, for four years. The parties have engaged in extensive discussion
to narrow the scope of the initial extremely broad FOIA request. These discussions resulted in
the Court’s adoption of the Order Regarding Scope of Searches that, among other things, limited
the FOIA request to (1) all of the Clinton emails, and (2) all records from the files of former
Secretary Clinton, Philippe Reines, Huma Abedin, Cheryl Mills, each person who served as the
Counselor to the Secretary from January 21, 2009 to February 1, 2013, and each person who
served as a Deputy Secretary of State (both (D) and (D-MR)) from January 21, 2009, to February
1, 2013 related to the following 11 topics (“the other 11 requests”):
a. Boko Haram;
b. Wikileaks, including Julian Assange and Chelsea (aka Bradley) Manning;
c. Occupy Wall Street;
d. Rendition of Abu Omar;
e. “High Value Interrogation Group”;
f. Efforts to capture or kill Osama Bin Laden;
g. The Bagram and Parwan facilities; and
h. Keystone Pipeline
i. “The CIA torture or ‘enhanced interrogation’ program including, but not
limited to the use of the technique commonly called ‘waterboarding’, as
well as CIA foreign prisons, detention facilities, and black sites run or
used by the CIA to hold detainees or other persons detained by or on
behalf of the U.S. government or any subdivision thereof.”
j. “Use of a private email account, or private email server or FOIA or
Privacy Act limitations by any employee within the State Department
including but not limited to Secretary Clinton.”
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 5 of 17
k. “[Palestinian] statehood, the Gaza flotilla, Israeli raids in Gaza, and/or
human rights issues in Palestinian territory.”1
Although the Narrowed FOIA Request is narrower than the nearly all-encompassing original
request, it is still very broad: 12 separate FOIA requests covering a range of topics and
individuals. State proposes that the Court permit it to focus on the first, and biggest, of the
requests, the production of the Clinton emails, before moving on to the other 11 requests, so that
it can allocate its scarce FOIA-processing resources to allow it to meet its obligations to the
Court and to other FOIA plaintiffs.
11.
State has devoted a significant portion of its FOIA-processing resources to
carrying out the Court’s order (ECF No. 17) regarding the first part of Plaintiff’s 12-part FOIA
request, which requires monthly productions of the Clinton emails. This order requires State to
aspire to meet cumulative monthly targets as it posts on its FOIA website the non-exempt
portions of almost 53,0002 pages of Clinton emails by January 29, 2015. State is committed to
meeting that schedule; to date, State has produced more than 25% of the pages responsive to the
first part of Plaintiff’s FOIA request and is slightly ahead of the cumulative target.
12.
This enormous undertaking comes at a time when State’s resources for processing
FOIA requests are strained to the limit. At the end of Fiscal Year 2014, State had 10,965 FOIA
requests pending; since then, as of July 15, 2015, State has received approximately 16,517 new
1
The parties have agreed to search terms regarding topics i-k. See Joint Status Report of August 20, 2015 at 2-3
(ECF No. 27).
2
The number of pages provided by former Secretary Clinton was originally estimated as “approximately 55,000.”
Decl. of John Hackett ¶ 10 (ECF No. 12-1). However, once the digitizing process was complete, State was able to
provide a more precise count. See Def.’s Status Report at 1, Leopold I (D.D.C. Sep. 8, 2015) (ECF No. 31)
(reporting that former Secretary Clinton provided 53,988 pages, of which approximately 1,533 were identified, in
consultation with the National Archives and Records Administration, as “entirely personal correspondence, that is,
documents that are not federal records,” leaving approximately 52,455 pages).
-5-
Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 6 of 17
requests and is currently engaged in 87 FOIA litigation cases in multiple districts, many of which
involve court-ordered document production schedules. This dramatic increase in workload has
occurred while funding for State’s operating account, which funds Department operations around
the world, including the FOIA program, has decreased in real terms.3
13.
State has begun conducting searches for records potentially responsive to the
other 11 requests and has, to date, uncovered approximately 4,000 documents. At this time, it is
not possible to estimate the number of pages these documents comprise. Approximately six
hundred of these documents are between two and 50 pages in length, skewing toward the higher
end of that range. The remaining documents are emails from the state.gov accounts of Ms.
Abedin, Ms. Mills, Thomas Nides, and William Burns. These emails are typically one to three
pages in length, but many of them have attachments, at least some of which are 300 pages in
length.4
14.
These searches are not yet complete. For example, the retired files of Mr. Reines,
including his state.gov email accounts, and the state.gov email accounts of two former Deputy
Secretaries, Jack Lew and James Steinberg, are still being searched. In addition, State is
continuing to conduct relevancy reviews, which will allow it to identify additional search terms
that may be necessary to identify potentially responsive documents or to exclude documents that
3
Appropriated funding for Diplomatic and Consular Programs Ongoing Operations, from which State’s FOIA
program is funded, has been reduced by 15.9% since sequestration in FY 2013. At the same time, annual Federal
pay raises and overseas inflation are increasing annual operating costs by at least 3% annually. Declaration of John
Hackett ¶ 10, Associated Press v. State, 15-cv-345 (RJL) (ECF No. 11-1) (July 21, 2015). For instance, the
Department spent approximately $16.5 million in FY 2013 and $15.9 million in FY 2014 on FOIA personnel costs
associated with processing requests outside of litigation. See id.
4
Plaintiff’s assertion that his estimate of 15,000 pages is “intentionally high,” see ¶ 36, is without basis.
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 7 of 17
were initially identified as potentially responsive but in fact turn out to be irrelevant to the
requests.5
15.
16.
State proposes the following schedule:
a.
While it continues to review and release the remaining portions of the
Clinton emails, State will continue to conduct searches to identify records
potentially responsive to the other 11 requests.
b.
By December 31, 2015, State will provide to Plaintiff the number of
potentially responsive documents to be reviewed; these numbers will be
broken down by topic and by the official from whose files the records
came.6 State will also provide to Plaintiff a proposed production plan
stating the frequency of rolling productions and the number of rolling
productions it anticipates will be required to review the potentially
responsive documents.
c.
The parties will confer during January 2016 to try to develop a mutually
agreeable production schedule. During this time, Plaintiff will provide to
State his priority regarding the 11 topics, so that it can be taken into
account when setting a production schedule.
d.
By January 29, 2016, the parties will file a joint status report setting forth
their proposed production schedule (if agreement has been reached) or
their respective positions (if agreement has not been reached). Once the
production of the Clinton emails is complete, State will begin reviewing
the records potentially responsive to the other 11 requests, according to the
priority order provided to State by Plaintiff in ¶ 5.c, supra.
This proposal equitably balances Plaintiff’s interests with those of State as well as
other FOIA requesters. Under this proposal, State will continue dedicating significant resources
5
In addition, the documents recently provided to State by Ms. Mills, Ms. Abedin, and Mr. Reines have not yet been
searched. These documents are the subject of State’s motion for designation of a coordinating judge to manage
common issues of law, procedure, and fact across more than 30 cases implicating the search and production of the
responsive, non-exempt portions of documents that were provided to State by former Secretary Clinton and certain
other former employees. See Notice Regarding Motion for Designation of Coordinating Judge (ECF No. 28) (Sep.
2, 2015) (“Coordination Motion”); In re U.S. Dep’t of State FOIA Litigation re Emails of Certain Officials, Misc.
No. 15-1188 (Sep. 2, 2015). State has moved for a stay of those aspects of the case addressing the recently provided
documents. (ECF No. 30). The Court has called for responses to the coordination motion to be filed no later than
Monday, September 14.
6
Some records may not be attributable to a single custodian; the number of such records will be broken out
separately.
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 8 of 17
to Plaintiff’s FOIA request, both to release of the Clinton emails, all of which are responsive to
the first part of his request, and to finish the process of identifying the documents that are
potentially responsive to the other 11 requests.
17.
Plaintiff asks the Court to add 2,000 pages per month to State’s quota for this
case—a more than 25% increase over the average rate contemplated in the Court’s schedule
regarding the Clinton emails—while attempting to use State’s commitment to meeting that
schedule to imply that State has additional resources to dedicate to his 11 other FOIA requests,
see ¶ 30, infra. It is true that in May, State committed to dedicating more resources to the
Clinton email review and production process in order to accommodate the Court’s requirement
that State release the Clinton emails via rolling productions, rather than in one batch at the end of
the review process as State had originally contemplated and proposed. See Defendant’s Notice
in Response to Court’s Order of May 19, 2015 at 2 (ECF No. 13); Declaration of John F. Hackett
¶ 11 (ECF No. 12-1). But State has no FOIA-processing personnel sitting idle and no more
resources to devote to Plaintiff’s requests, which are already taking up more than his fair share of
the agency’s resources.7
18.
Indeed, Plaintiff’s extremely broad request requires an inordinate amount of time
and effort. Although it is true that other FOIA requesters benefit from release of the Clinton
emails, Plaintiff’s request for the entire Clinton email collection is far broader than all but a few
related requests. Even if the Court were to pro-rate the effort involved in releasing the Clinton
7
If the Court desires more detail concerning the resources available at State for FOIA process, State respectfully
refers it to the Declaration of John Hackett, Associated Press, (ECF No. 11-1), which discusses State’s FOIA staff in
some detail, id. ¶ 18, and to the Supplemental Declaration of John Hackett Ex. 4, Associated Press (ECF No. 16-1),
which is a chart reflecting many of the FOIA cases in which State has either a court ordered or agreed upon
production schedule.
-8-
Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 9 of 17
emails across all the cases in which some of them are responsive, it would still be true that a
disproportionate share of FOIA resources are being dedicated to Plaintiff’s request. State’s
proposal allows it to address FOIA requests at issue in other cases while still working
continuously and at a rapid pace on Plaintiff’s request; Plaintiff’s proposal, on the other hand,
elevates his request above those at issue in 86 other cases and hundreds of FOIA requests not yet
in litigation.
19.
Finally, Plaintiff contends that State’s production of September 1 is insufficient.
¶ 22, infra. As explained in the letter provided to Plaintiff on that date, State devoted as many
resources as it could to this case, bearing in mind its obligations in other cases, the resource
shortages it faces, and its ongoing efforts to release the Clinton emails that are responsive to the
first part of Plaintiff’s FOIA request. In the end, all State could complete before September 1
was the Glomar determination with respect to the request for documents relating to the alleged
“[r]endition of Abu Omar.” Plaintiff’s assertion that this Glomar response is inconsistent with
responses issued in a different case (DeSousa v. Central Intelligence Agency, et al.), see ¶ 24,
infra, is baseless. As Plaintiff himself admits, the FOIA requests in that case relate to the alleged
rendition of Abu Omar only “in part.” See n.8, infra; see also Complaint ¶ 50, DeSousa, 14-cv1951 (BAH) (ECF No. 1) (D.D.C. Nov. 19, 2014) (listing 10 separate topics covered by the
FOIA request in that case). State has repeatedly notified both the Court and the plaintiff in that
case (who is represented by Jeffrey Light, who appears in this case on behalf of Plaintiff) that it
“intends to assert a partial Glomar response” in response to those FOIA requests. See, e.g., Joint
Status Report at 1-2, DeSousa (ECF No. 16). The assertion of a partial Glomar in a case that is
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 10 of 17
only in part about the alleged rendition of Abu Omar is consistent with the assertion of a Glomar
over the narrower request at issue here.
PLAINTIFF’S POSITION REGARDING SCHEDULE
20.
Plaintiff’s proposes with respect to the schedule for production of records
responsive to part (2) of the Narrowed FOIA Request that the Court order Defendant to: (1)
complete its search for potentially responsive records no later than October 30, 2015;8 and, (2)
provide monthly rolling productions of non-exempt portions of responsive records based on a
review for releasability of at least 2,000 unique pages per month on or before the first of each
month electronically by email beginning September 30, 2015; and, (3) complete its review and
production of all non-exempt portions of responsive records on or before February 29, 2016.
21.
Plaintiff’s proposal is based on numerous considerations including: (1)
Defendant’s failure to meet the September 1, 2015 production deadline; (2) Defendant’s apparent
bad faith in missing that deadline; (3) Defendant’s failure to provide material details regarding
the nature and extent of its FOIA search, review, or production obligations to justify deviation
from the template of rolling monthly productions established in this case; and (4) the importance
of the records requested in this case in light of recent revelations of the possible mishandling of
classified and other sensitive information.
22.
First, Defendant violated the Court’s Order Regarding Scope of Searches entered
on May 27, 2015 (ECF 16) by failing to conduct any search for, or produce, even a single page
8
Defendant was ordered to begin its search for records responsive to part (2) of the Narrowed FOIA Request by
June 1, 2015. (ECF No. 16). Plaintiff believes that four months is a sufficient and reasonable amount of time to
complete the search for records responsive to this aspect of Plaintiff’s FOIA request, particularly in light of
Plaintiff’s understanding that a material portion of the search function is performed by persons outside the FOIA
office such that pending FOIA obligations are not a significant impediment to conducting many aspects of the
search.
- 10 -
Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 11 of 17
responsive to part (2) of the Narrowed FOIA Request by September 1, 2015, or by asserting that
it could not produce any pages which were reviewed due to applicable FOIA exemptions.
Instead, Defendant provided Plaintiff with a letter on September 1, 2015, attached hereto as
Plaintiff’s Exhibit 1, stating in relevant part that,” the Department will neither confirm nor deny
the existence of records responsive to the part of your request seeking access to information
regarding ‘Rendition of Abu Omar’. 5 U.S.C. § 552(b)(1).”
23.
The letter continues, “The Department had hoped to provide a more robust
production, but technical issues combined with the devotion of so many resources to the effort to
produce the emails of former Secretary Clinton prevent that from happening.” Pl. Ex. 1. Despite
Defendant’s suggestion that its “Glomar” assertion constitutes a production, it clearly does not.
While it does respond to one aspect of part (2) of the Narrowed FOIA Request, the response did
not involve a search for responsive records, or review of even a single page for responsiveness or
releasability. In fact Defendant’s letter tacitly admits a failure to produce by citing undefined
“technical issues” and other production obligations.9
24.
Second, Defendant’s issuance of a full, categorical “Glomar response” regarding
the “Rendition of Abu Omar” in this case is inconsistent with its position in other, currently
pending litigation in which some records related to the rendition of Abu Omar have been
released by Defendant.10 Because Defendant has already released certain records related to the
9
As discussed further below, Defendant asserted on August 7, 2015 that its own review was ahead of the Court’s
schedule with respect to the Clinton email production due August 31. (ECF Nos. 22, 22-1). The assertion in its
September 1, 2015 letter that it could not review and produce even a single page responsive to part (2) of the
Narrowed FOIA Request on September 1 is astonishing. Pl. Ex. 1.
10
FOIA request case number F-2014-08802 requests, in part, records regarding the rendition of Abu Omar and is the
subject of litigation before this court in the case styled DeSousa v. Central Intelligence Agency, et al., 14-cv-1951
(BAH) (filed Nov. 19, 2014).
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 12 of 17
rendition of Abu Omar, it cannot possibly be successful in its assertion of a full “Glomar
response” in this case. Therefore, the letter containing this assertion which Defendant provided
pursuant to its September 1, 2015 production obligation cannot be taken seriously as a legitimate,
good-faith production in compliance with the Court’s order.
25.
Instead, Defendant’s issuance of the categorical “Glomar response” seems little
more than a transparent tactic to appear to meet the Court’s production deadline of September 1,
2015 without doing any of the actual work involved in conducting a search, reviewing
responsive records and producing those records. Not only does Defendant’s tactic fail to meet
the definition of either a search or a production, it will assuredly lead to costly and timeconsuming litigation over the inconsistent “Glomar response” in the future, and utterly
disregards Plaintiff’s rights under FOIA, and the duty not to waste judicial resources.11
26.
Defendant’s assertion that it was prevented from making “a more robust
production” beyond its “Glomar response” by September 1, 2015 due to its other production
requirements – an argument Plaintiff expects Defendant will rely on heavily in its proposal for
future productions in this case – remains unsubstantiated by any concrete facts. In fact,
Defendant’s own statements to this Court contradict the assertion that it cannot meet current
production obligations.
27.
On August 7, 2015, Defendant filed a status report and supporting declaration in
connection with its obligation pursuant to the Court’s Order of May 27, 2015 to “explain in
detail in its status report how it intends to catch up with the schedule by adding resources or
otherwise,” (ECF. No 17) in which Defendant asserted that the cause of its failure to meet the
11
Plaintiff is not at this time asking the Court to rule on the issue of the legitimacy of the “Glomar response.”
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 13 of 17
production goals in this case regarding the Clinton emails was due solely to the addition of a new
review step by 5 intelligence community agencies. (ECF Nos. 22, 22-1).
28.
Defendant made no mention that any delay was assignable to its own staffing
levels, and, in fact, made clear that Defendant’s own review was ahead of schedule. The
Director of the Office of Information Programs and Services (“IPS”) for the U.S. Department of
State, John F. Hackett, asserted under oath on August 7, 2015 that, “[His] belief that the
Department can get back on track by the end of September is further informed by the fact that the
number of emails that have cleared the other steps in the Department’s review process meets or
exceeds the milestones in the original plan developed to comply with the Scheduling Order.”
(Second Declaration of John F. Hackett, ECF No. 22-1 ¶ 8).
29.
Defendant even highlighted the fact that its own review is ahead of schedule in
the August 7, 2015 status report, “The Hackett Declaration also explains that the number of
emails that have cleared the other steps in the Department’s review process meets or exceeds the
milestones in the original plan developed to comply with the Scheduling Order. Hackett Decl. ¶
8.” (ECF. No. 22 fn. 3). The context of the footnote makes clear that the “other steps” to which
it refers are those originally established by and applied by Defendant and excludes only the new
review being performed by the five external intelligence community agencies.12
30.
Similarly, Defendant has previously represented to the Court that additional FOIA
resources may be available. On May 26, 2015, Defendant represented in response to an order to
propose rolling productions in this case that, “it is committed to reallocating further resources to
accommodate the additional effort required by rolling productions so that it can still complete the
12
See Second Declaration of John F. Hackett, ECF No. 22-1 ¶¶ 3-4.
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 14 of 17
production on or before the Department’s initial proposed deadline of January 15, 2016.”
(Notice in Response to Court’s Order of May 19, 2015, ECF No. 13 p. 2). Defendant has yet to
assert that these resources have been exhausted or even that they have yet been assigned to meet
obligations imposed on Defendant in this or any other case.
31.
Third, Defendant has not provided specific, detailed information suggesting that it
does not have sufficient resources to comply with production orders in this case (or due to
competing or conflicting orders in related cases). For example, Defendant fails to explain the
nature of the “technical difficulties” cited in its September 1, 2015 letter that it is or has been
facing, or what steps are being taken to address these technical difficulties. See Pl. Ex. 1.
32.
Though Defendant frequently asserts it may not have the resources to meet
existing review and production obligations, 13 it has failed to state with any specificity what
review roles are short staffed, at which step or steps in the review process bottlenecks are
occurring, and/or what other staffing or resource issues may exist. Absent a detailed explanation
of the nature and extent of the challenges facing Defendant to meet court-ordered search, review,
and production obligations, and the resources available and assigned to respond to them,
including the alleged pool of available resources referenced on May 26, (ECF. No. 13), any
suggestion the Defendant cannot immediately begin producing records in response to part (2) of
the Narrowed FOIA Request which was ordered to begin September 1, 2015 and continue
thereafter on a rolling basis, should be met with skepticism.
13
See, e.g., Pl. Ex. 1, and, Joint Status Report filed on July 31, 2015, (ECF No. 17) in Leopold v. Department of
State, 14-cv-1760, (which is also subject to Defendants request for coordination in related case 15-mc-1188) (“As
noted in previous joint status reports, in the time since agreeing to the proposed production schedule, Defendant has
experienced a significant increase in new FOIA request and lawsuits which has substantially increased the burden on
Defendant’s limited FOIA staff and resources. While Defendant has worked diligently to meet the processing and
production requirements in this case, it may not have the resources necessary to do so in the future.”).
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33.
Fourth, it is highly likely that the records responsive to part (2) of the Narrowed
FOIA Request contain information highly relevant to the 2016 presidential election. The Clinton
email records Defendant has produced in this case have been the source of intense public and
media attention, and have resulted in new information reaching the public about the handling of
classified and sensitive information by a presidential candidate and her closest staff. The records
sought in this case are for Clinton’s non-email records, as well as for paper, email, and other
electronic records of her closest staff including Cheryl Mills, Huma Abedin, and others working
within and closely with the Office of the Secretary (S).
34.
Plaintiff’s proposal balances Defendant’s known production obligations in this
and other cases with the importance of the records being sought and the delays to their
production since the FOIA request was received by Defendant on or before November 24, 2014.
See Compl. ¶ 13 (ECF No. 1). However, because Defendant has not disclosed the total volume
of records responsive to this aspect of Plaintiff’s FOIA request,14 Plaintiff lacks sufficient
information to propose an exact page total or percentage to be reviewed and produced each
month similar to the Court’s order applicable to the Clinton emails (ECF No. 17).
35.
In recognition of this fact, Plaintiff instead asks the Court to establish a search
completion date of October 30, 2015, a production end-date of February 29, 2016, and monthly
productions beginning September 30, 2015 based on a reasonably obtainable 2,000 page-review
commitment. The search completion date, coupled with the production end-date and the
monthly page-review requirement will allow productions to proceed at a reasonable pace up to
14
In the August 20, 2015 Joint Status Report Regarding Search Terms and Defendant’s Statement Regarding the
Progress of Searches (ECF No. 27), Defendant stated that its search had already yielded approximately 1,270
records. On September 4, 2015, Defendant provided an update to Plaintiff, through counsel, that the ongoing search
had thus far yielded approximately 4,000 potentially responsive records.
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 16 of 17
and beyond the end of the productions of the Clinton emails, without creating an unreasonable
burden on Defendant.
36.
Using an intentionally high estimate of 15,000 pages for the volume of responsive
material, Plaintiff’s proposed schedule would provide ample time for Defendant to complete
productions before “Super Tuesday” on March 1, 2016, the day on which Americans in at least
11 states will go to the polls.15 Even if Defendant produced only at the end of January and
February of 2016, after its completion of the Clinton email productions, Defendant would only
need to produce 7,500 pages each month, substantially fewer pages than is currently due in any
of the last three months under the Court’s May 27, 2015 order governing the Clinton emails
(ECF No. 17).16
37.
For the reasons stated above, Plaintiff respectfully requests, with respect to the
schedule for production of records responsive to part (2) of the Narrowed FOIA Request, that the
Court order, Defendant to: (1) complete its search for potentially responsive records no later than
October 30, 2015; and, (2) provide monthly rolling productions of non-exempt portions of
responsive records based on a review for releasability of at least 2,000 unique pages per month
on or before the last business day of each month electronically by email beginning September 30,
2015; and, (3) complete its review and production of all non-exempt portions of responsive
records on or before February 29, 2016.
15
http://www.nytimes.com/interactive/2016/us/elections/primary-calendar-and-results.html?_r=0 (Last visited Sept.
7, 2015). Because primary dates are undecided in over a dozen states, even more states’ electoral votes may be
decided on or before March 1, 2016. Id.
16
The Court’s May 27, 2015 order establishing a production schedule for the Clinton emails calls for the production
of 15% of the total number of pages of Clinton emails, or approximately 7,869 pages in November, an additional
16%, or approximately 8,393 pages in December, and an additional 18%, or approximately 9,442 pages, in January.
These calculations are based on the revised estimate of 52,455 pages of Clinton emails provided in Defendant’s
Status Report Regarding Release of Records on July 31, 2015 (ECF No. 22 ¶ 2).
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Case 1:15-cv-00123-RC Document 32 Filed 09/08/15 Page 17 of 17
Date: September 8, 2015
Respectfully submitted,
/s/ Ryan S. James
RYAN S. JAMES
D.C. Bar #496272
5208 Capricorn Loop
Killeen, TX 76542
(254) 289-7459
[email protected]
BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Branch Director
/s/ Robert J. Prince
ROBERT J. PRINCE (D.C. Bar No. 975545)
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, DC 20530
Tel: (202) 305-3654
[email protected]
JEFFREY L. LIGHT
D.C. Bar #485360
1712 Eye St., NW
Suite 915
Washington, DC 20006
(202) 277-6213
[email protected]
Counsel for Defendant
Counsel for Plaintiff
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