Monday, July 27, 2015

Inspector General request would further delay release of Hillary Clinton emails

Both The New York Times and Gawker not only published erroneous articles with bogus headlines concerning Inspectors General memos to the State Department related to former Secretary of State Hillary Clinton's emails, they also seem to have missed a recommendation which could be interpreted by critics as yet another governmental roadblock to fulfilling dozens of Freedom of Information Act requests by the media and watchdog groups.

"It is unclear if the Department of Justice is reviewing the emails before FOIA release," an OIG memo from June 15 states. "Former-Secretary Clinton's emails are the subject of numerous FOIA requests and multiple FOIA lawsuits. It may be prudent to integrate the Department of Justice into the FOIA process review to ensure the redactions can withstand legal challenges. If not already being done, recommend the State Department FOIA Office incorporate the Department of Justice into the FOIA process to ensure the legal sufficiency review of the FOIA exemptions and redactions."

As the Times reported, "a federal judge sharply questioned State Department lawyers at a hearing in Washington about why they had not responded to Freedom of Information Act requests from The Associated Press, some of which were four years old."
"“I want to find out what’s been going on over there — I should say, what’s not been going on over there,” said Judge Richard J. Leon of United States District Court, according to a transcript obtained by Politico. The judge said that “for reasons known only to itself,” the State Department “has been, to say the least, recalcitrant in responding.”"
In an editorial published by Daily Caller, Micah Morrison - the Chief Investigative Reporter for the conservative-leaning Judicial Watch - asks, "Is FOIA reform finally at the tipping point? The federal Freedom of Information Act was designed to give citizens prompt access to information about their government. Instead, it’s a bureaucratic nightmare, a vast black hole of years-long delays and heavily censored documents."

"In recent weeks, a trifecta of powerful federal judges, each acting independently, has blasted the Obama Administration’s FOIA delays," Morrison observes, before opining, "It is never good to anger a federal judge. Angering three over the same issue is unprecedented."
"It may take fed up federal judges to lead the charge on FOIA reform. Mrs. Clinton’s stonewalling aside, the problems with FOIA are obvious. FOIA offices, housed within every government department or agency, are underfunded and understaffed. FOIA personnel get no respect from their colleagues. FOIA rules on what not to disclose are routinely abused by bureaucrats with something to hide or simply no desire to cooperate with the law. The system is in ruins.

At a Congressional FOIA hearing last month, noted the Washington Post, House Oversight Committee witnesses 'delivered a powerful verdict that federal agencies do a terrible job of responding to document requests — across the board, just about all the time.'
Adding another government agency into the process would logically result in further delayed release of the emails, which critics complain is being done purposely to protect Hillary Clinton as she runs for president.

After publication, Judicial Watch's Micah Morrison linked to this article, tweeting, "New HRC email referrals fracas could result in FURTHER document release delays, as @ronbryn notes here." In the evening, Politico's Jeff Gernstein reported, "Transparency advocates say the procedures the inspectors general recommended for handling the release of Clinton’s email have the potential to slow to a complete stop the already glacial Freedom of Information Act process."
"'This is a recipe for paralysis,' said Steven Aftergood, a classified information expert with the Federation of American Scientists. 'Their recommendation essentially is to give more reviewers a veto over disclosure. They not only want to bring in intelligence community reviewers, but also Justice Department officials.'

'By adding on layers of review, and the corresponding ability to block disclosure, the IGs' approach would ensure that the least possible amount of information gets released,' Aftergood added.
Patrice McDermott of told Gernstein that the recommendation to use DOJ on all redacted FOIA responses "to ensure [they] can withstand legal challenges" was "ridiculous", adding, "It would grind government to a halt and it would grind DOJ to a halt as well. ... It’s absurd."

The Politico story added, "McDermott said the recommendations seemed to be a roundabout way of the intelligence community saying it doesn’t trust the State Department to make classification decisions. 'This is them saying you don’t recognize highly classified information when you see it if it’s not marked,' she said. 'Those are entirely separate issues from the FOIA process.'"

However, responses to the OIG request indicate the Department of Justice is already involved in the review of Clinton's emails.

On June 25, Patrick F. Kennedy - the under secretary of state for management - replied, "the Department finds the issues raised by the ICIG are either already addressed in current processes or are inconsistent with interagency practices. Further, the recommendations provided by the ICIG would add to the FOIA review process schedule and make it more difficult to meet the U.S. District Court order for rolling productions without meaningfully enhancing the review process."

In an attachment, the memo added, "Emails with Department of Justice equities (including those of its component entities) are forwarded to the relevant DOJ entities for review. Legal sufficiency review of the FOIA exemptions and redactions are conducted by attorneys from the Office of the Legal Adviser; they consult regularly with the Department of Justice's Federal Programs Branch regarding FOIA issues and litigation, including litigation involving the former Secretary's emails. This type of process is common throughout the interagency."

On July 14, another memo sent by Kennedy argued that "as noted previously, Department attorneys consult regulary with the Department of Justice's Federal Programs Branch on legal issues that arise in the context of the FOIA and FOIA litigation. This practice is longstanding and continues with respect to this review; L attorneys met with attorneys from Federal Programs on Monday of this week."

The New York Times article by Michael S. Schmidt and Matt Apuzzo originally published on July 23, 2015 was full of so many mistakes that it probably merits its own internal probe, but one of the corrections added afterwards seems to blame "senior government officials" for the paper's misreporting.

"An article and a headline in some editions on Friday about a request to the Justice Department for an investigation regarding Hillary Clinton’s personal email account while she was secretary of state misstated the nature of the request, using information from senior government officials," a New York Times correction added to the article on July 25 stated, after the paper falsely reported the 2016 presidential candidate was facing a "criminal referral" by two Inspectors Generals. "It addressed the potential compromise of classified information in connection with that email account. It did not specifically request an investigation into Mrs. Clinton."

A second New York Times correction to the same article on July 26 added, "An article in some editions on Friday about a request to the Justice Department for an investigation regarding Hillary Clinton’s personal email account while she was secretary of state referred incorrectly, using information from senior government officials, to the request. It was a 'security referral,' pertaining to possible mishandling of classified information, officials said, not a 'criminal referral.'"

Unlike the New York Times, the Gawker article by Sam Biddle doesn't contain any self-corrections, just a note that the Times corrected its story, but the headline still inaccurately suggests that the Inspectors General recommended a "criminal investigation."

[Editor's Note: Sam Biddle blocked me on Twitter in December of 2012 because I criticized his reporting on a teenage hacker he apparently befriended. The hacker had been convicted for SWATtings and other computer crimes, then reportedly broke his plea deal, but Biddle argued in his defense with no evidence. Michael S. Schimdt has ignored multiple tweets I've sent him regarding an article he wrote for The New York Times in March, which I believe wrongly reported that the Clinton aide who set up the private server currently works for Teneo. Judicial Watch and Micah Morrison have highlighted much of my reporting on Hillary Clinton, Huma Abedin, and Teneo (see: Teneo and the Clinton machine).]

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