Case 1:16-cv RC Document 12-1 Filed 06/29/16 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Transcription

1 Case Document 12-1 Filed 06/29/16 Page 1 of 15 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA CITIZENS UNITED Plaintiff, v. Case Number: 16-cv-48 DEPARTMENT OF STATE Defendant. DECLARATION OF ERIC F. STEIN Pursuant to 28 U.S.C. 1746, I, Eric F. Stein, declare and state as follows: 1. I am the Acting Co-Director of the Office of Information Programs and Services ( IPS of the United States Department of State (the Department and have served in this capacity since March 21, I am the Department official immediately responsible for responding to requests for records under the Freedom of Information Act (the FOIA, 5 U.S.C. 552, the Privacy Act of 1974, 5 U.S.C. 552a, and other applicable records access provisions. Prior to serving in this capacity, from April 2013, I worked directly for the Department s Deputy Assistant Secretary ( DAS for Global Information Services ( GIS and served as a senior advisor and deputy to the DAS on all issues related to GIS offices and programs, which includes IPS. As the Acting IPS Co-Director, I have original classification authority and am authorized to classify and declassify national security information. I make the following statements based upon my personal knowledge, which in turn is based upon information furnished to me in the 1

2 Case Document 12-1 Filed 06/29/16 Page 2 of 15 course of my official duties. I am familiar with the efforts of Department personnel to process the subject request, and I am in charge of coordinating the agency s search and recovery efforts with respect to that request. 2. The core responsibilities of IPS include: (1 responding to records access requests made by the public (including under the FOIA, the Privacy Act, and the mandatory declassification review requirements of the Executive Order governing classified national security information, by Members of Congress, by other government agencies, and those made pursuant to judicial process such as subpoenas, court orders, and discovery requests; (2 systematic review under the Executive Order; (3 records management; (4 privacy protection; (5 national security classification management and declassification review; (6 corporate records archives management; (7 research; (8 operation and management of the Department s library; and (9 technology applications that support these activities. 3. The purpose of this declaration is to inform the Court about the progress that IPS has made on the processing of Plaintiff s FOIA requests in this case and to provide the Court with information concerning IPS structure and resources. To those ends, this declaration provides (i a summary of Citizens United s ( Plaintiff FOIA request; (ii information concerning the Department s FOIA caseload and resources devoted thereto; and (iii a description of how IPS has handled Plaintiff s FOIA requests to date. seeking I. SUMMARY OF PLAINTIFF S FOIA REQUEST 4. On October 20, 2015, Plaintiff submitted an online FOIA request to the Department [A]ll s and other records of communications sent or received by Michael Fuchs, Deputy Assistant Secretary of the State Department Bureau of East Asian and Pacific Affairs, to or from the following entities: (1 The Clinton Foundation ( domain addresses for the Clinton 2

3 Case Document 12-1 Filed 06/29/16 Page 3 of 15 Foundation include but are not @cgepartnership.com, generation.org ; (2 Teneo Holdings ( domain addresses for Teneo Holdings include but are not limited Plaintiff s request covered the time period from January 1, 2009, to the present. IPS assigned Plaintiff s request case number F On November 2, 2015, Plaintiff submitted an online FOIA request to the Department seeking: [A]ll s and other records of communications sent or received by Melanne Verveer, former U.S. Ambassador-At-Large for Global Women s Issues, to or from the following entities: (1 The Clinton Foundation ( domain addresses for the Clinton Foundation include but are not @cgepartnership.com, ; (2 Teneo Holdings ( domain addresses for Teneo Holdings include but are not limited Plaintiff s request covered the time period from January 1, 2009, to February 28, IPS assigned Plaintiff s request case number F On November 13, 2015, Plaintiff submitted an online FOIA request to the Department seeking: [A]ll s exchanged between Cheryl Mills and the following individuals associated with the William J. Clinton Foundation, renamed the Bill, Hillary and Chelsea Foundation: Eric Braverman; Andrew Kessel; Valerie Alexander; Dennis Cheng; Scott Curran; Amitabh Desai; Rain Henderson; Laura Graham; Mark Gunton; Robert Harrison; Bari Lurie; Terri Mccullough; Patti Miller; Craig Minassian; Walker Morris; Maura Pally; Terry Sheridan; Stephanie S. Streett; Dymphna Van Der Lans; Bruce Lindsey; Chelsea Clinton; Former President Bill Clinton; Frank Giustra; Rolando Gonzalez Bunster; Hadeel Ibrahim; Lisa Jackson; Cheryl Saban, Ph.D; and Richard Verma. Plaintiff s request covered the time period from January 1, 2009, to May 31, IPS assigned Plaintiff s request case number F

4 Case Document 12-1 Filed 06/29/16 Page 4 of On November 13, 2015, Plaintiff submitted an online FOIA request to the Department seeking: [A]ll s exchanged between Cheryl Mills and the following individuals: Declan Kelly, Chairman and CEO, Teneo; Doug Band, President, Teneo; Paul Keary, Chief Operating Officer, Teneo; Michael Madden, Chairman, Teneo Capital; Harry Van Dyke, CEO, Teneo Capital; Chris Wearing, President, Teneo Consulting; Jim Shinn, CEO, Teneo Intelligence; Chris Deri, Managing Director, Teneo Strategy; Richard Powell, President, Teneo Strategy; Orson Porter, Washington D.C. Managing Director, Teneo; Ken Miller, Senior Advisor, Teneo Capital; and Karim Shariff, Teneo Capital Dubai. Plaintiff s request covered the time period from January 1, 2009, to February 28, IPS assigned Plaintiff s request case number F On November 13, 2015, Plaintiff submitted an online FOIA request to the Department seeking: [A]ll s exchanged between Huma Abedin and the following individuals: Declan Kelly, Chairman and CEO, Teneo; Doug Band, President, Teneo; Paul Keary, Chief Operating Officer, Teneo; Michael Madden, Chairman, Teneo Capital; Harry Van Dyke, CEO, Teneo Capital; Chris Wearing, President, Teneo Consulting; Jim Shinn, CEO, Teneo Intelligence; Chris Deri, Managing Director, Teneo Strategy; Richard Powell, President, Teneo Strategy; Orson Porter, Washington D.C. Managing Director, Teneo; Ken Miller, Senior Advisor, Teneo Capital; and Karim Shariff, Teneo Capital Dubai. Plaintiff s request covered the time period from January 1, 2009, to May 31, IPS combined this request with Plaintiff s similar request in paragraph 7 above and also assigned it case number F On November 13, 2015, Plaintiff submitted an online FOIA request to the Department seeking: 4

5 Case Document 12-1 Filed 06/29/16 Page 5 of 15 [A]ll s exchanged between Huma Abedin and the following individuals associated with the William J. Clinton Foundation, renamed the Bill, Hillary and Chelsea Foundation: Eric Braverman; Andrew Kessel; Valerie Alexander; Dennis Cheng; Scott Curran; Amitabh Desai; Rain Henderson; Laura Graham; Mark Gunton; Robert Harrison; Bari Lurie; Terri Mccullough; Patti Miller; Craig Minassian; Walker Morris; Maura Pally; Terry Sheridan; Stephanie S. Streett; Dymphna Van Der Lans; Bruce Lindsey; Chelsea Clinton; Former President Bill Clinton; Frank Giustra; Rolando Gonzalez Bunster; Hadeel Ibrahim; Lisa Jackson; Cheryl Saban, Ph.D; and Richard Verma. Plaintiff s request covered the time period from January 1, 2009, to May 31, IPS assigned Plaintiff request case number F , Plaintiff filed the instant action based on all of the above listed requests on January II. THE DEPARTMENT S FOIA CASELOAD AND DOCUMENT REVIEW PROCESS 11. Over the past several years, the Department s FOIA caseload has greatly increased. In FY 2008, the Department received fewer than 6,000 new FOIA and Privacy Act requests; that number of new FOIA and Privacy Act requests annually increased, reaching nearly 25,000 in FY 2015 (an increase of over 300%. By the end of Fiscal Year 2015, the Department had nearly 22,000 FOIA and Privacy Act requests pending. The Department currently has approximately 29,000 FOIA and Privacy Act requests pending and is engaged in 106 FOIA litigation cases, many of which involve court-ordered document production schedules. At a time when the FOIA caseload is increasing dramatically, the funds available to process FOIA requests have remained nearly constant since Fiscal Year For instance, the Department spent approximately $16.5 million in FY 2013, $15.9 million in FY 2014, and $16.3 in FY 2015 on FOIA personnel costs associated with processing FOIA requests. 12. The review process undertaken by IPS, which follows the searches throughout the 5

6 Case Document 12-1 Filed 06/29/16 Page 6 of 15 Department for potentially responsive documents, is involved and complex. Because IPS s document review system, known as FREEDOMS 2 (or F2 cannot ingest most forms of electronic data, most of the potentially responsive documents must be printed (if they were provided to IPS in an electronic format and then scanned into F2. Each document is assigned a unique identification number, and an IPS employee manually inputs certain bibliographic data associated with each document, such as the date, to, from, and subject line (if available. IPS then assigns those documents for review to an IPS employee, or reviewer, with appropriate clearance and subject matter expertise to handle that set of documents. 13. The reviewer performs a line-by-line review of the document to determine whether the document is responsive to the request, whether it contains any classified or other sensitive information that must be withheld under one of the nine FOIA exemptions, and whether it contains information belonging to other federal agencies. During this process, the reviewer may consult other Department employees (including, for example, employees in regional bureaus or attorneys as s/he sees fit. These consultations often occur more than once in the process and are extremely important, particularly when the documents being reviewed were created around the same time they were requested under the FOIA. The bureaus being consulted are the most knowledgeable parties concerning the sensitivity of the documents or subject matter at issue. For instance, such documents may concern the views or activities of individuals who could suffer reprisals if their identities or opinions are revealed. The documents may also reflect certain policies, activities, or other information of a heightened sensitivity to U.S. foreign relations. Consequently, IPS requires its reviewers to clear documents that were created within the previous five years and contain substantive information with the relevant bureaus prior to finalizing release determinations. In addition to clearing with 6

7 Case Document 12-1 Filed 06/29/16 Page 7 of 15 relevant regional and functional bureaus and offices, all documents must be reviewed by the Office of the Legal Adviser, a process that often involves consultations between the attorneyadviser and IPS as well as with other Department offices. 14. If the reviewer determines that a document originated with the Department, but contains another federal agency s information (or equities, an IPS employee will send that document to the relevant federal agency for consultation. If the reviewer determines that a document originated with another federal agency, s/he redacts any Department information that must be withheld under the FOIA, and the document is sent to that federal agency for review and direct reply to the requester. The Department will also refer a document to an outside organization whenever its confidential business information may be at issue in accordance with Executive Order and 22 C.F.R to allow that organization the opportunity to object to the disclosure of the information on the basis that the information in the document is exempt from disclosure under FOIA Exemption 4, 15 U.S.C. 552(b( Finally, for cases that are in litigation, documents proposed for release must be reviewed by attorney-advisers within the Office of the Legal Adviser, a process that often involves consultations between the attorney advisers and IPS as well as other Department Offices. 16. After completing the internal and external consultation processes, the reviewer redacts any information that must be withheld under the FOIA and marks the documents that the Department will release in full or in part with the required stamps, indicating the release determinations and FOIA exemptions applied. If the reviewer completing this process is relatively inexperienced then his or her work must undergo second-level review by a senior reviewer to ensure that FOIA exemptions were properly applied to the document and 7

8 Case Document 12-1 Filed 06/29/16 Page 8 of 15 consultations with relevant Department bureaus and federal agencies occurred. After this process is completed, the Department provides those documents to the requester with a cover letter indicating that responsive documents were located, which (if any exemptions were applied to documents withheld in full or in part (including a list of the available FOIA exemptions, and whether the requester should expect to receive additional release determinations from the Department in the future or whether the Department s response to the request is complete. The Department also provides an explanatory letter in the event that no responsive documents were located or all responsive documents were withheld in full. 17. The Department engages the services of approximately 71 part-time, retired Foreign Service Officers 1, some of whom have served as Ambassadors, to serve as subject matter experts in reviewing potentially responsive documents for Department equities, to make inter-agency consultations, and to apply appropriate FOIA exemptions to protect exempt information. 18. However, only 15 of these part-time reviewers are dedicated to IPS s 106 FOIA litigation cases, while the remaining are assigned to work on the approximately 29,000 FOIA requests that are not in litigation. Due to the growing number of cases in active litigation, the Department has been assigning some non-litigation reviewers to litigation cases on an ad-hoc basis in order to meet the demands of various court ordered production schedules. Today, more than 80 percent of these non-litigation reviewers are being used to do work on litigation cases to meet existing production deadlines required by court orders. 1 Each of these retired Foreign Service hours has an individual work schedule varying from 16 to 40 hours per week. The exact number of reviewers is in flux at any given point in time, as many of these reviewers work schedules vary throughout the calendar year. 8

9 Case Document 12-1 Filed 06/29/16 Page 9 of The Department is currently subject to court orders in at least 27 of its active litigation matters that, in sum, require the Department to process 2 a minimum of approximately 7,500 pages per month. The Department reasonably anticipates that new court-ordered production schedules will continue to be imposed in coming months. In addition, the litigation reviewers continue to review documents for release in the approximately 23 additional litigation matters in which the Department is currently still producing documents. Due to competing Court deadlines and the part-time nature of reviewer s schedules, reviewer resources are often shifting between cases, and one reviewer could be handling as many as four litigation cases in any given month. 20. IPS s ability to increase the number of reviewers is constrained by the availability of existing financial resources and also by the need for reviewers to possess the necessary security clearances and subject matter expertise to review materials related to U.S. foreign relations and diplomacy that may be responsive to FOIA requests. IPS cannot determine, based on a request alone, whether any of the responsive material will be classified. Moreover, pursuant to its authority under Executive Order 13526, IPS may determine to classify information responsive to a FOIA request (for example, IPS may determine that certain unmarked information or information marked unclassified must be classified at the confidential or secret level. Finally, F2 operates on a classified network, which requires any reviewers using the system to hold a security clearance of at least the SECRET level. Consequently, IPS reviewers must have clearances because they cannot know from the outset whether they will be handling classified information and because they need the clearances to 2 Process means reviewing a document and (1 determining whether it is responsive to the request; (2 referring the document to another agency or organization for consultation, if necessary; or (3 producing the document (with redactions if appropriate to Plaintiff. 9

10 Case Document 12-1 Filed 06/29/16 Page 10 of 15 operate in F2, the document review system. III. STATE S SEARCH FOR AND REVIEW OF DOCUMENTS RESPONSIVE TO PLAINTIFF S FOIA REQUESTS 21. After Plaintiff s FOIA requests were submitted, the Department identified the Executive Secretariat, Office of Global Women s Issues, Bureau of Information Resource Management, Bureau of East Asian and Pacific Affairs, and IPS as the offices that were reasonably likely to possess documents responsive to these requests. The Department also identified its Retired Records Inventory Management System ( RIMS as another place that responsive documents were likely to be found. 22. After these office conducted searches of their records and IPS conducted a search of RIMS and documents provided to the Department in 2015 by former Chief of Staff, Cheryl Mills, and former Deputy Chief of Staff, Huma Abedin, the Department identified 6,082 documents that were potentially responsive to Plaintiff s requests and reported this number to this Court in its March 18, 2016, status report. The Department also reported that it believed that these results were over inclusive and that it was likely that a much smaller number of documents would end up being responsive to Plaintiff s requests because various offices conducted searches using the names of the non-state individuals listed in Plaintiff s requests. Such a search would necessarily capture any communication referencing that individual, but not sent to or from that individual, a category that would not be responsive to the requests described above. The results of the Department s sample responsiveness review of 300 of these 6,082 documents, in which it found 126 documents were responsive to Plaintiffs requests, further supported this belief. The Department provided the results of this sample responsiveness review to the Court in 10

11 Case Document 12-1 Filed 06/29/16 Page 11 of 15 its March 18, 2016, status report to help it evaluate the volume of potentially responsive material and the time required to complete production. 23. After submitting its March 18, 2016, status report, the Department discovered errors in the manner in which the searches had been conducted in order to capture documents potentially responsive to Plaintiff s requests. Specifically, it found that one office had not conducted the search by keyword, but rather had only searched the To and From line of the latest in an communication, a method that would not capture responsive s found only in older communications that were part of an chain. This led the Department to conduct a new search to ensure that all responsive material was captured. After this search, the number of potentially responsive documents increased substantially to 34, IPS then conducted a document-by-document responsiveness review of these 34,116 documents and found that 5,883 documents were responsive 3 to the Plaintiff s requests and that these documents encompassed approximately 14,369 pages. This number of 5,883 responsive documents is considerably more documents to review than the Department initially anticipated, as reported to the Court in it its March 18, 2016, status report and described in paragraph 22 above. 25. While the Department has worked diligently to ingest these documents into its review system (F2 and undertake the above-described review process in this case, further work still needs to be done by the Department to identify the universe of responsive documents. Due to some errors recently identified with the responsiveness review, some attachments to responsive s were inadvertently marked as non-responsive. As a result, 3 This number was reported to the Court in the Department s May 17, 2016, status report. As the Department noted in this report, this responsiveness review focused on headers and it is possible that upon full exemption review of the body of these s, certain documents may later be determined to be non-responsive, if, for example they do not constitute agency records. 11

12 Case Document 12-1 Filed 06/29/16 Page 12 of 15 IPS is currently re-doing this responsiveness review in order to ensure that no responsive e- mail attachments were missed. This process is very time intensive and requires that IPS manually open and review each with an attachment amongst the 34,116 documents that were identified as potentially responsive to Plaintiff s requests. Hence, as there may be additional attachments that are potentially responsive, the total number of potentially responsive documents to review may increase. The substantive review process in this case is also challenging given the wide-ranging subject matters covered by the documents at issue, which implicate equities across the Department. As a result, reviewers in this case are consulting Department employees in multiple bureaus, including the Bureaus of Western Hemisphere Affairs, European and Eurasian Affairs, East Asian and Pacific Affairs, Economic and Business Affairs, and Public Affairs, and the Office of the Under Secretary for Management. The number of different bureaus and documents involved in such consultations necessarily increases IPS s review time. Additionally, Plaintiff s requests cover communications with outside organizations, and the Department must send documents to these organizations for consultation whenever their confidential business information may be at issue before these documents can be produced. Given the nature of the requests at issue, the Department anticipates that it will have to make a large number of such consultations. This further slows down its review, as the Department cannot anticipate what objections these organizations may have concerning disclosure of their information and how long it will take to resolve such issues. Finally, as with many cases, State must consult with other agencies within the U.S. Government regarding these documents as appropriate. 26. Department resources also limit the pace of review in this matter. Four of the parttime reviewers assigned to this matter are new and are still receiving training on the application 12

13 Case Document 12-1 Filed 06/29/16 Page 13 of 15 of FOIA and Privacy Act Exemptions, Executive Order 13526, and other relevant statutes and regulations, and on the use of F2. Consequently, these reviewers are not able to review documents as quickly as those who are more experienced. Their lack of experience also requires that their work be reviewed by a senior reviewer, an additional step that also slows the pace of review. Two part-time senior reviewers are currently splitting these duties in this matter because they are both working on several other cases as well as spending time training IPS s new litigation reviewers. 4 The Department is working to meet this Court s production deadlines. Pursuant to this Court s order, the Department made productions of documents to Plaintiff on April 22, 2016, May 23, 2016, and June 22, Aside from the attachments issue noted in paragraph 25, the Department estimates that it still has approximately 13,679 pages to review in this case. 27. Due to the shifting nature of litigation demands and the number of new and inexperienced reviewers on this matter, it is difficult to precisely estimate how quickly review of documents responsive to Plaintiff s requests could be completed. Based on the FOIA and Privacy Act demands IPS is currently facing, the limited number of part-time reviewers currently working on litigation matters, the fact that many of those part-time reviewers, including those working on this case, are inexperienced, and the bottleneck caused by limited senior reviewer capacity, I estimate that the Department is able to review documents for releasability at a rate no faster than 500 pages a month, this figure takes into account both the number of pages produced to Plaintiff, either in full or in part, and those reviewed and 4 One senior reviewer in this case is handling five additional cases and is able to dedicate 16 hours a week to this case. The other senior reviewer is handling four additional cases and is able to dedicate a maximum of eight hours a week to this case. Three of the less experienced reviewers on this case are also each working on one additional case. 13

14 Case Document 12-1 Filed 06/29/16 Page 14 of 15 determined to be non-responsive or denied in full under the FOIA. 5 It does not reflect those documents that are reviewed by one of IPS s reviewers and then referred externally or internally for further consultation. However, this rate of review for releasability is subject to the consultation process the Department must undertake pursuant to Executive Order 12600, and this may significantly affect the Department s ability to review its goal of 500 pages in some months. 28. At this rate, it would take the Department approximately 27 months to complete its review and produce all of the non-exempt information responsive to Plaintiff s requests although additional time may be necessary if there are significantly more attachments determined to be responsive. 29. Due to the increasingly limited capacity of the Department to commit to the processing of additional pages in any FOIA litigation case, the Department has recently undertaken the task of identifying statistics that would allow the Department to best quantify the work currently underway throughout IPS in non-litigation and litigation cases and the amount of resources available to address that workload. As a result of that analysis, the Department anticipates that its future review capabilities will be more modest. Simply put, any increase beyond the 500 pages per month that the Department will aspire to review in this case would limit the Department s ability to meet its existing FOIA obligations in numerous other cases. IV. CONCLUSION 5 I estimate that, on average, a reviewer is able to finalize approximately pages per month. The term finalized describes the stage at which documents have had their redactions burned. This estimate therefore takes into account the completion of external consultations, either with another agency or an outside organization. However, due to the inexperience of the reviewers in this matter, I am unable to draw any conclusions from this figure with respect to how many documents a month they are able to finalize. 14

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