Judicial Watch, Inc. v. U.S. Department of State

8/20/2019 Judicial Watch, Inc. v. U.S. Department of State

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UNITED STATES DISTRICT COURT

DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC.

Plaintiff,

v. Civil Action No. 1:12-cv-2034

(RBW)

U.S. DEPARTMENT OF STATE,

Defendant.

DEFENDANT’S OBJECTIONS TO PLAINTIFF’S

PROPOSED PRESERVATION ORDER

Pursuant to the Court’s Order dated September 3, 2015, Defendant Department of

State (“Department”) hereby responds to Plaintiff’s proposed preservation order. The

Department objects to the issuance of any preservation order as unnecessary because, as

explained below, former Secretary Clinton has already turned over approximately 55,000

pages of work-related and potentially work-related documents to the Department, and the

Department has already taken numerous steps to ensure the preservation of these

documents.1 The Department has also taken similar steps with other former employees

who used non-state.gov accounts. The Department further objects to the proposed

preservation order because this Court lacks jurisdiction over personal records, which by

definition are not agency records under the Freedom of Information Act (“FOIA”).

1 State received 53,988 pages of documents consisting of emails and attachments to emails from former

Secretary Clinton. In consultation with the National Archives and Records Administration, State identified

approximately 1,533 pages of those documents as entirely personal correspondence, that is, documents that

are not federal records and thus that are not subject to the FOIA, leaving a total of approximately 52,455

pages remaining to be reviewed and released.

Case 1:12-cv-02034-RBW Document 28 Filed 09/09/15 Page 1 of 10


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In support of its objections to Plaintiff’s proposed preservation order, the

Department states as follows:

1. This FOIA case involves a targeted request for “all records concerning,

regarding, or relating to the advertisement produced by the U.S. embassy in Islamabad,

entitled ‘A Message from the President of the United States Barack Obama and Secretary

of State Hillary Clinton’ intended to air in Pakistan.” Complaint ¶ 5 (ECF No. 1). The

parties settled this lawsuit in November 2014, after the Department searched all

components reasonably expected to have responsive records, including the Office of the

Secretary and the Bureau of Public Affairs; produced 700 pages of records; and

submitted a 27-page draft Vaughn to Plaintiff. See Joint Status Report September 8, 2015

(ECF No. 17). The parties jointly agreed to re-open this case in May 2015. (ECF No. 21).

Former Secretary Clinton has provided the Department with approximately 55,000 pages of

emails from her non-“state.gov” account, and the Department is currently processing those

documents for public release in accordance with a production schedule set forth in Leopold v.

Department of State, Civil Action No. 15-123 (RC).

2. Despite the limited scope of the FOIA request at issue, Plaintiff seeks a broad

preservation order asking the Court to order the Department to take:

all reasonable steps to determine whether copies of clintonemail.comdocuments and data from 2009-2013 (excluding data already returned

to the Defendant) exist anywhere separate and apart from the

clintonemail.com Server, and if they exist, to ensure they are preserved.These contents include, but are not limited to: the 31,380 reportedly

withheld [email protected] records; any emails associatedwith Huma Abedin’s clintonemail.com account; and any other emails ordocuments of any other current or former government employee or official

during the relevant time period.

Plaintiff’s proposed preservation order is overbroad and unnecessary, and, as written, the

Court lacks jurisdiction to enter it.



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3. First, Plaintiff readily concedes that its requested preservation order is designed to

target personal email. Indeed, Plaintiff asserts that its proposed order is necessary because,

“neither former Secretary Clinton nor Mr. Kendall believes they are under a current

obligation to preserve records they deem personal.” See Plaintiff’s Notice of Filing Proposed

Preservation Order, para. 2 (ECF No. 26). But there is no legal basis in the FOIA for

requesters to obtain employees’ personal records and, therefore, there is no legal basis for the

Court to order the State Department to preserve, or to take steps to preserve, the personal

records of the former Secretary or any other current or former federal employee.

a. This Court lacks jurisdiction to issue an order targeting personal emails

because those documents are not “agency records” subject to the FOIA. 5 U.S.C.

§552(a)(4)(B); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136,

150 (1980) (“federal jurisdiction is dependent upon a showing that an agency has (1)

‘improperly’ (2) ‘withheld’ (3) ‘agency records’”); Competitive Enterprise Inst. v. NASA,

989 F. Supp. 2d 74, 85 (D.D.C. 2013) (5 U.S.C. § 552(a)(4)(B) provides jurisdiction to

“enjoin the agency from withholding agency records and to order the production of any

agency records improperly withheld”). Plaintiff seeks to order the Department to locate

copies (if they exist) and preserve the “31, 380 reportedly withheld [email protected]

records.”2 (emphasis added) As Plaintiff admits, the former Secretary and her counsel

determined that these documents are personal records and therefore did not produce them to

the Department. Thus, those documents are not in the State Department’s possession,

custody or control to be subject to the FOIA. Kissinger, 445 U.S. at 150-51, 155; see also

Nat’l Sec. Archive v. Archivist of the U.S., 909 F.2d 541, 545 (D.C. Cir. 1990)(“[T]he

2 The State Department does not know the exact number of “withheld” documents, and Plaintiff has

provided no evidentiary support for this number.


mailto:[email protected]:[email protected]:[email protected]:[email protected]


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agency must have ‘possession or control’ over a document before it may be deemed to be

‘withholding’ it.”). Moreover, even if the Department had custody of them, personal

records are not subject to the FOIA. 5 U.S.C. §552(a)(4)(B); Kissinger, 445 U.S. at 150;

see also Fortson v. Harvey, 407 F. Supp. 2d 13, 15 (D.D.C. 2005) (“Federal district

courts cannot compel an agency to disclose documents, unless those documents constitute

‘agency records’ under FOIA”); 36 C.F.R. § 1220.18 (“Personal files are excluded from

the definition of Federal records and are not owned by the Government”).

b. The cases that plaintiff cited during the September 3, 2015 status conference

do not hold otherwise. In both cases, the records at issue were agency records, and

plaintiffs in those cases neither sought preservation nor production of personal records.

See Chambers v. Dept of Interior, 568 F.3d 998 (D.C. Cir. 2009) (reversing grant of

summary judgment due to material issue of fact on whether agency intentionally

destroyed employee’s performance appraisal after it was requested under the FOIA);

Ryan v. Dept. of Justice, 617 F.2d 781, 790 (D.C. Cir. 1980) (holding that FOIA

exemption 5 applied to an agency record submitted by outside consultants as part of the

deliberative process, and solicited by the agency).

c. There is no question that former Secretary Clinton had authority to delete

personal emails without agency supervision – she appropriately could have done so even if

she were working on a government server. Under policies issue both by the National

Archives and Records Administration (“NARA”) and the State Department, individual

officers and employees are permitted and expected to exercise judgment to determine what

constitutes a federal record. See NARA Bulletin 2014-06 ¶4 (Sept. 15, 2014) (“Currently, in

many agencies, employees manage their own email accounts and apply their own

understanding of Federal records management. This means that all employees are required to



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review each message, identify its value, and either delete it or move it to a recordkeeping

system.”);3 Department of State Foreign Affairs Manual, 5 FAM 443.2(b) (“[t]he intention of

this guidance is not to require the preservation of every E-mail message.”) (attached as Ex. 1)

The purpose of these policies is to direct the preservation of those messages that

contain information that is necessary to ensure that “departmental policies, programs, and

activities are adequately documented. E-mail message creators and recipients must decide

whether a particular message is appropriate for preservation. In making these decisions, all

personnel should exercise the same judgment they use when determining whether to retain

and file paper records.” Id .4 A federal record is defined by statute as including “all recorded

information, regardless of form or characteristics, made or received by a Federal agency

under Federal law or in connection with the transaction of public business and preserved or

appropriate for preservation by that agency or its legitimate successor as evidence of the

organization, functions, policies, decisions, procedures, operations, or other activities of the

United States Government or because of the informational value of data in them.” 44 U.S.C.

§ 3301. The regulations define personal files as “documentary materials belonging to an

individual that are not used to conduct agency business. Personal files are excluded from the

definition of Federal records and are not owned by the Government.” 36 C.F.R. § 1220.18.

Moreover, the regulations further specify that “[n]on-record materials should be purged when

no longer needed for reference. NARA's approval is not required to destroy such materials.”

36 C.F.R. §1222.16(b)(3).

4. Second, because personal records are not subject to FOIA, and State Department

employees may delete messages they deem in their own discretion to be personal, Plaintiff’s

3 http://www.archives.gov/records-mgmt/bulletins/2014/2014-06.html

4 In October, 2104, the Department further clarified this guidance. (attached as Ex. 2).


http://www.archives.gov/records-mgmt/bulletins/2014/2014-06.htmlhttp://www.archives.gov/records-mgmt/bulletins/2014/2014-06.htmlhttp://www.archives.gov/records-mgmt/bulletins/2014/2014-06.htmlhttp://www.archives.gov/records-mgmt/bulletins/2014/2014-06.html


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preservation argument reduces to an unsupported allegation that former Secretary Clinton

might have mistakenly or intentionally deleted responsive agency records rather than

personal records. But Plaintiff offers no support for such a theory, and government agencies

are not required to take steps to recover deleted material based on unfounded speculation that

responsive information had been deleted. Indeed, in the absence of information to believe

that information was in deleted in bad faith after a FOIA request was received, an agency is

under no requirement to take steps to recover removed or deleted information. McGehee v.

CIA, 697 F.2d 1095, 1103 n. 33 (D.C.Cir.1983); accord Chambers, supra.

Here, there is no reasonable basis to believe that any agency records responsive to

this request were deleted, let alone in bad faith, and Plaintiff has cited none. The evidence,

if anything, demonstrates that the former Secretary’s production was over-inclusive, not

under-inclusive. The Department’s review, of the approximately 55,000 pages of

documents provided to the Department determined that at least 1246 of the emails

provided were not federal records. See Letters dated August 12, 2015 and August 21,

2015 from David Kendall, Esq. to Under Secretary Kennedy (attached as Exs. 3 and 4).

Additionally, the records requested pursuant to this FOIA request involve an officially

sanctioned State Department public service advertisement produced for audiences in

Pakistan. Plaintiff has not offered any reason why former Secretary Clinton would have

deleted records related to a public service advertisement in Pakistan, a subject on which the

Department has already produced 700 documents.

5. Third, Plaintiff’s proposed preservation order is completely unnecessary because of

the numerous steps the government has taken to date to make sure that all federal records –

the only legitimate subject of inquiry under FOIA -- are being preserved. As the attached

documents demonstrate, former Secretary Clinton directed her attorneys to identify all


https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=350&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2019117931&serialnum=1983102133&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=D62FCBCB&referenceposition=1103&rs=WLW15.07https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=350&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2019117931&serialnum=1983102133&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=D62FCBCB&referenceposition=1103&rs=WLW15.07https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=350&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2019117931&serialnum=1983102133&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=D62FCBCB&referenceposition=1103&rs=WLW15.07https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=350&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2019117931&serialnum=1983102133&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=D62FCBCB&referenceposition=1103&rs=WLW15.07https://web2.westlaw.com/find/default.wl?mt=Westlaw&db=350&tc=-1&rp=%2ffind%2fdefault.wl&findtype=Y&ordoc=2019117931&serialnum=1983102133&vr=2.0&fn=_top&sv=Split&tf=-1&referencepositiontype=S&pbc=D62FCBCB&referenceposition=1103&rs=WLW15.07


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documents that were work-related and potentially work-related and to provide those

documents to the Department. The Department has received approximately 55,000 pages of

emails from former Secretary Clinton, and has also received federal records from several

other former employees who at times used non-state.gov accounts. To date the following

actions and/or steps have been taken to preserve all of these documents:

a. In November 2014, the Department sent a letter to former secretaries of

state, including former Secretary Clinton, requesting that if former Secretaries or their

representatives were “aware or [were to] become aware in the future of a federal record,

such as an email sent or received on a personal email account while serving as Secretary

of State, that a copy of this record be made available to the Department. . . if there is

reason to believe that it may not otherwise be preserved in the Department’s

recordkeeping system.” (attached as Ex. 5).

b. In December 2014, former Secretary Clinton’s representative responded to

the above-referenced letter and provided to the Department paper copies of

approximately 30,000 e-mails, comprising approximately 55,000 pages. (attached as Ex.

6).

c. In Judicial Watch v. State, Civ. Action No. 15-688 (RC), Counsel for the

Department of Justice, referring to the documents provided to the Department by former

Secretary Clinton stated on the record that “the government will preserve every record in

its possession that relates to this and all other requests.” Transcript of July 9, 2015 Status

Conference at 15-16 (attached as Ex. 7).

d. On August 8, 2015, former Secretary Clinton declared under penalty of

perjury, “I have directed that all my e-mails on clintonemail.com in my custody that were or

potentially were federal records be provided to the Department of State, and on information



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and belief, this has been done.” See Declaration of Hillary Rodham Clinton dated August 8,

2015. (attached as Ex. 8).

e. On August 10, 2015, pursuant to Court order in Judicial Watch v. State,

Civil Action No. 13-cv-1363 (EGS), the Department sent another letter to former

Secretary Clinton, through her attorney, specifically requesting that she not delete any

federal records, electronic or otherwise, in her possession or control, and provide

appropriate assurances to the Government that she will not delete any such documents.

(attached as Ex. 9).

f. On August 14, 2015, also in Judicial Watch v. State, Civil Action No. 13-

cv-1363 (EGS), Mr. John Hackett, Director of the Office of Information Programs and

Services submitted a declaration stating “the Department is not currently aware of any

personal computing devices issued by the Department to former Secretary Clinton, Ms.

Abedin, or Ms. Mills that may contain responsive records” to the FOIA requests at issue

in that case. See Hackett Decl. at ¶8 (attached as Ex. 10).

6. Fourth, the Department objects to specific statements in plaintiff’s proposed

order as follows:

a. First paragraph, first sentence: “certain contents of the clintonemail.com

server (the “Server”) from the years 2009-2013 have apparently not been provided to the

Defendant.” Objection: No basis exists to believe that documents responsive to this

FOIA request have not been provided to the Department, and Plaintiff has provided

none.

b. First paragraph, second sentence: “The Defendant has not confirmed to

Plaintiff or the Court whether copies of these records still exist and will be preserved

throughout the pendency of this litigation.” Objection: The Department has confirmed



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on numerous occasions that all agency records returned to the Department will be

preserved. In addition, the Department has issued instructions to former Secretary

Clinton and other former officials not to delete federal records. An order requiring

preservation of personal emails is not appropriate, for the reasons explained above.

c. Second paragraph: Objection: For all the reasons set forth above, a

preservation order is neither necessary nor appropriate. The “questions of law”

identified by Plaintiff are not at issue in this case, which involves a narrow FOIA request

and a search of federal records in the Department’s possession.

d.

Third paragraph, first sentence: “the Defendants shall take all reasonable

steps to determine whether copies of clintonemail.com documents and data from 2009-

2013 (excluding data already returned to the Defendant) exist anywhere separate and

apart from the clintonemail.com Server, and if they exist, to ensure they are preserved.

These contents include . . . any other emails or documents of any other current or former

government employee or official during the relevant time period.” Objection: This

language is overbroad, as it purports to include personal, non-agency records as well as

the emails of family members who did not work at the Department of State and whose

records are not subject to this FOIA request.

e. Fourth paragraph: Objection: this paragraph is improper, as the Court

lacks jurisdiction over non-agency records, and former Secretary Clinton and her lawyer

have already responded to requests for information regarding the return of agency

records.

* * *

In sum, the Department has taken all reasonable and required steps to ensure that

the federal records of former Secretary Clinton and other former employees have been



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returned to the government and are being preserved. Plaintiff has provided no evidence

that the records that former Secretary Clinton and her counsel “withheld” as personal

were in fact, federal records. Nor is there any reason to believe that any of these records

are responsive to the narrow FOIA request at issue here.

Accordingly, no preservation order is necessary and the Court should reject

Plaintiff Judicial Watch’s proposed preservation order in its entirety. To the extent the

Court wants specific assurances regarding the preservation of federal records in the

Department’s possession that may be responsive to the specific FOIA request in this case,

the Department attaches a Proposed Order at Ex. 11.

Date: September 9, 2015 Respectfully submitted,

BENJAMIN C. MIZER

Principal Deputy Assistant Attorney

General

ELIZABETH SHAPRIO

Deputy Branch Director

/s/ Marsha Stelson EdneyMarsha Stelson Edney(D.C. Bar No. 41427)United States Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave., N.W.Washington, DC 20530

Tel: (202) 514-4520

[email protected]

Counsel for Defendant



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Exhibit 1

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 1 of 64


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UNCLASSIFIED (U)U.S. Department of State Foreign Affairs Manual Volume 5

Information Management

5 FAM 440 Page 1 of 8

UNCLASSIFIED (U)

5 FAM 440

ELECTRONIC RECORDS, FACSIMILE

RECORDS, AND ELECTRONIC MAIL RECORDS(CT:IM-158; 12-29-2014)

(Office of Origin: A/GIS/IPS)

NOTE: In October, 2014, the Department issued an interim directive superseding sometext in this section. This subchapter will be revised to reflect the new guidance – Referto Department Notice 2014_10_115 for more information.

5 FAM 441 ELECTRONIC RECORDS MANAGEMENT

(TL:IM-19; 10-30-1995)These requirements apply to all electronic records systems: microcomputers;minicomputers; and mainframe computers in networks or stand-alone

configurations, regardless of storage media.

a. Electronic Data files.

(1) Those employees who are responsible for designing electronic recordssystems that produce, use, or store data files, shall incorporate dispositioninstructions for the data into the design plan.

(2) System Administrators must maintain adequate and current technical

documentation for electronic records systems that produce, use, or storedata files. At a minimum, include:

(a) a narrative description of the system (overview);

(b) a records layout that describes each field, its name, size, starting or

relative position;

(c) a description of the form of the data (e.g., alphabetic, zoned decimal,

packed decimal or numeric) or a data dictionary. Include theequivalent information and a description of the relationship between

data elements in the data bases when associated with a data base

management system; and(d) any other technical information needed to read or process the records.

(3) Electronic data bases that support administrative or housekeepingfunctions and contain information derived from hard copy records

authorized for disposal may be deleted if the hard copy records aremaintained in official files.

(4) Data in electronic form that is not preserved in official hard copy files or



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UNCLASSIFIED (U)

supports the primary program or mission of an office, even if preserved in

official hard copy files, may not be deleted or destroyed except throughauthorities granted as prescribed in sections h. and i. below.

b. Documents.

(1) Electronic records systems that maintain the official file copies of

documents shall provide a capability for the disposition of the documents.This includes the requirements for transferring permanent records to the

National Archives, when necessary.

(2) Electronic records systems that maintain the official file copy of documents

shall identify each document sufficiently to enable authorized personnel toretrieve, protect, and carry out the disposition of documents in the system.

Appropriate identifying information may include: office of origin,TAGS/Terms, subject line, addressee (if any), signatory, author, date,

security classification, and authorized disposition.

(3) Electronic records systems that maintain the official file copy of documentsshall provide sufficient security to ensure document integrity.

(4) Documents such as letters, messages, memorandums, reports, handbooks,directives, and manuals recorded on electronic media may be deleted if the

hard copy record is maintained in official files.

(5) Documents such as letters, messages, memorandums, reports, handbooks,directives, and manuals recorded and preserved on electronic media as theofficial file copy shall be deleted in accordance with authorized disposition

authorities for the equivalent hard copy. If the authority does not exist,the documents in electronic form may not be deleted or destroyed except

through authorities granted as prescribed in sections h. and j. below.c. Spreadsheets.

(1) Spreadsheets recorded on electronic media may be deleted when no longerneeded to update or produce hard copy if the hard copy record is

maintained in official files.

(2) Spreadsheets recorded and preserved on electronic media shall be deletedin accordance with authorized disposition authorities for the equivalent

hard copy.

d. Electronic records are acceptable as evidence in federal courts. Rule 803 (6),

Federal Rules of Evidence, has been interpreted to include computer records.Further under Rule 1006, summary electronic records may be provided to limit

the quantity of information considered during judicial proceedings. The courtsmust believe that records admitted before it are “trustworthy” that is, they

must clearly and accurately relate the facts as originally presented or insummary form.

e. Administrators of electronic records systems shall ensure that only authorizedpersonnel have access to electronic records.



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f. Administrators of electronic records systems shall provide for the backup and

recovery of records.

g. Administrators of electronic records systems shall make certain that storage

media meet applicable requirements prescribed in 36 CFR 1234.28. Theserequirements are also contained in FIRMR Bulletin B-1 and are discussed in the

RMH, 5 FAH-4 H-219 .h. Retention of electronic records.

(1) The information in electronic records systems and related documentationand indexes must be scheduled for disposition no later than one year after

the implementation of the system.

(2) Procedures must be established for systematically backing up, copying,

reformatting, and providing other necessary maintenance for the retention

and usability of electronic records throughout their prescribed life cycles.

i. Destruction of electronic records.

(1) Electronic records may be destroyed only in accordance with a recordsdisposition authority approved by the Archivist of the United States. This

authority is obtained through the Records Management Branch(OIS/RA/RD).

(2) This process is exclusive, and records of the United States Government,including electronic records, may not be alienated or destroyed except

through this process.

(3) Electronic records scheduled for destruction must be disposed of in a

manner that ensures protection of any sensitive, proprietary or nationalsecurity information. Magnetic recording media are not to be reused if the

previously recorded information can be compromised in any way. Refer to12 FAM for requirements regarding the security of magnetic media.

j. All automated information systems (AIS) or facsimile machines used to processor store electronic records must comply with the security regulations contained

in 12 FAM.

5 FAM 442 FACSIMILE RECORDS(TL:IM-19; 10-30-1995)

The use of facsimile (FAX) equipment in appropriate and cost-effective

circumstances is encouraged in the Department. Facsimile transmissions have thesame potential to be Federal records as any other documentary materials received

in Federal offices. The method of transmitting a document does not relieve

sending or receiving offices of the responsibility for adequately and properlydocumenting official actions and activities and for ensuring the integrity of records.

See the RMH, 5 FAH-4 , for more guidance on facsimile records. See 5 FAM 561



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for policies on FAX transmissions, including use of secure FAX equipment and

using FAX equipment to send correspondence to members of Congress.

5 FAM 442.1 Facsimile Label

(TL:IM-19; 10-30-1995)

The Records Management Branch (OIS/RA/RD) has designed a facsimiletransmission label (Form DS-1905), to be affixed to facsimile equipment. The

label serves as a reminder to users of the responsibility to file record copies offacsimiles and to photocopy record copies of thermal paper facsimiles onto plain

paper for filing. The labels are available from OIS/RA/RD.

5 FAM 442.2 FAX Transmittal Forms

(TL:IM-19; 10-30-1995)

a. Form DS-1890, Unclassified Facsimile Transmittal Cover Sheet, and Form DS-

1890-A, Classified Facsimile Transmittal Cover Sheet, are Department formsthat are available for use in transmitting documents. Their use is not

mandatory. These forms are available on the INFOFORMS disk, which is part ofthe Department’s INFOEXPRESS application. At a minimum, the transmittal

form which is used by an office, should contain the following information:

—date of transmittal

—sending and receiving office information (symbol, name, voice & faxtelephone numbers)

—subject information, including TAGS/Terms to help properly file the

documents

—any comments regarding the transmission

—appropriate security classification, when using a secure fax machine.

b. Transmittal cover sheets containing substantive comments are to be filed withrelated record material. Those containing informal messages can be destroyed

upon receipt or when no longer needed.

5 FAM 443 ELECTRONIC MAIL (E-MAIL)

RECORDS

5 FAM 443.1 Principles Governing E-Mail

Communications

(TL:IM-19; 10-30-1995)

a. All Government employees and contractors are required by law to make and



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UNCLASSIFIED (U)

preserve records containing adequate and proper documentation of the

organization, functions, policies, decisions, procedures, and essentialtransactions of the agency (Federal Records Act, or “FRA,” 44 U.S.C. 3101 et

seq). In addition, Federal regulations govern the life cycle of these records:they must be properly stored and preserved, available for retrieval, and subject

to appropriate approved disposition schedules.

b. As the Department’s information modernization program goes forward, new

forms of electronic communications have become increasingly available withinthe Department and between the Department and overseas posts. One

example of the improvements that modernization has brought is the automaticelectronic preservation of departmental telegrams. Employees are reminded

that under current policy departmental telegrams should be used to conveypolicy decisions or instructions to or from posts, to commit or request the

commitment of resources to or from posts, or for official reporting by posts.

c. Another important modern improvement is the ease of communication now

afforded to the Department world-wide through the use of E-mail. Employeesare encouraged to use E-mail because it is a cost-efficient communications tool.All employees must be aware that some of the variety of the messages being

exchanged on E-mail are important to the Department and must be preserved;such messages are considered Federal records under the law. The following

guidance is designed to help employees determine which of their E-mailmessages must be preserved as Federal records and which may be deletedwithout further authorization because they are not Federal record materials.

5 FAM 443.2 Which E-Mail Messages are Records

(TL:IM-19; 10-30-1995)

a. E-mail messages are records when they meet the definition of records in theFederal Records Act. The definition states that documentary materials are

Federal records when they:

—are made or received by an agency under Federal law or in connectionwith public business; and

—are preserved or are appropriate for preservation as evidence of theorganization, functions, policies, decisions, procedures, operations, or

other activities of the Government, or because of the informational

value of the data in them.b. The intention of this guidance is not to require the preservation of every E-mail

message. Its purpose is to direct the preservation of those messages that

contain information that is necessary to ensure that departmental policies,programs, and activities are adequately documented. E-mail message creators

and recipients must decide whether a particular message is appropriate forpreservation In making these decisions, all personnel should exercise the

same judgment they use when determining whether to retain and file paper



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UNCLASSIFIED (U)

records.

c. Under FRA regulations (36 CFR 1222.38), principal categories of materials,including E-mail, that are to be preserved are:

—records that document the formulation and execution of basic policiesand decisions and the taking of necessary actions;

—records that document important meetings;

—records that facilitate action by agency officials and their successors in

office;

—records that make possible a proper scrutiny by the Congress or other

duly authorized agencies of the Government; and

—records that protect the financial, legal, and other rights of the

Government and of persons directly affected by the Government’sactions.

d. For example, just like paper records, E-mail messages that may constituteFederal records include:

(1) E-mail providing key substantive comments on a draft action

memorandum, if the E-mail message adds to a proper understanding ofthe formulation or execution of Department action;

(2) E-mail providing documentation of significant Department decisions andcommitments reached orally (person to person, by telecommunications, or

in conference) and not otherwise documented in Department files;

(3) E-mail conveying information of value on important Department activities,

e.g. data on significant programs specially compiled by posts in responseto a Department solicitation, if the E-mail message adds to a proper

understanding of Department operations and responsibilities.

5 FAM 443.3 How to Preserve E-Mail Records

(TL:IM-19; 10-30-1995)

For those E-mail messages and attachments that meet the statutory definition of

records, it is essential to ensure that the record documentation include the E-mailmessage, any attachments, and essential transmission data (i.e. who sent the

message, the addressees and any other recipients, and when it was sent). In

addition, information about the receipt of messages should be retained if usersconsider it necessary for adequately documenting Department activities. Iftransmission and necessary receipt data is not printed by the particular E-mail

system, the paper copies must be annotated as necessary to include such data.Until technology allowing archival capabilities for long-term electronic storage and

retrieval of E-mail messages is available and installed, those messages warrantingpreservation as records (for periods longer than current E-mail systems routinely

maintain them) must be printed out and filed with related records. Instructions for



18/76




UNCLASSIFIED (U)

printing and handling of Federal records for most of the Department’s existing E -

mail systems have been prepared and will be available through bureau ExecutiveOffices

5 FAM 443.4 Records Management Reviews

(TL:IM-19; 10-30-1995)

The Department’s Records Management Office (OIS/RA/RD) conducts periodic

reviews of the records management practices both at headquarters and atoverseas posts. These reviews ensure proper records creation, maintenance, and

disposition by the Department. These periodic reviews now will include monitoringof the implementation of the Department’s E-mail policy.

5 FAM 443.5 Points to Remember About E-Mail

(TL:IM-19; 10-30-1995)

—Department E-mail systems are for official use only by authorized personnel.

—The information in the systems is Departmental, not personal. No expectation ofprivacy or confidentiality applies.

—Before deleting any E-mail message, apply these guidelines to determine

whether it meets the legal definition of a records and if so, print it.

—Be certain the printed message kept as a record contains the essential

transmission and receipt data; if not, print the data or annotate the printedcopy.

—File the printed messages and essential transmission and receipt data withrelated files of the office.

—Messages that are not records may be deleted when no longer needed.

—Certain E-mail messages that are not Federal records may still be subject to

pending requests and demands under the Freedom of Information Act, thePrivacy Act, and litigation and court orders, and should be preserved until no

longer needed for such purposes.

—Classified information must be sent via classified E-mail channels only, with theproper classification identified on each document.

—When E-mail is retained as a record, the periods of its retention is governed byrecords retention schedules. Under those schedules, records are kept for

defined periods of time pending destruction or transfer to the National Archives.

5 FAM 443.6 Future Technology

(TL:IM-19; 10-30-1995)

a. The Department is actively working to develop systems that will enable those



19/76




UNCLASSIFIED (U)

E-mail messages that are official records to be preserved electronically.

b. These regulations are in compliance with those set forth by the NationalArchives and Records Administration.

c. The Department and all posts are requested to bring these regulations to theattention of all Department employees and contractors and to begin its

implementation immediately.

5 FAM 444 THROUGH 449 UNASSIGNED



20/76

Exhibit 2



21/76

CLASSIFICATION: UNCLASSIFIED

Page 1 of 5


Page 1 of 5

UNCLASSIFIED

MRN: 14 STATE 111506

Date/DTG: Sep 15, 2014 / 152109Z SEP 14

From: SECSTATE WASHDC

Action: ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE IMMEDIATE

E.O.: 13526

TAGS: AINF

Subject: MESSAGE FROM UNDER SECRETARY KENNEDY TO CHIEFS OF MISSION

1. Chiefs of Mission (COMs) are responsible for creating records necessary todocument their activities and for the proper management and preservation of theirrecords. These responsibilities are applicable to all records made or received inthe conduct of agency business regardless of physical format or media. While allDepartment employees are to preserve records meeting the definition of a recordunder the Federal Records Act, see 3 FAM 414.8, COMs’ records are among the most

important documents created at post and are some of the most valued documentsarchived at the National Archives and Records Administration (NARA). Properrecords management ensures statutory and regulatory compliance, preserves therights of the government and citizens, supports better decision making,safeguards vital records, preserves organizational memory, minimizes litigationrisk (ensuring systematic, documented, and routine disposal of records), andreduces operating costs through control over the lifecycle of the records.

2. Specifically, COMs must create records necessary to document their activitiesand actions taken on behalf of the Department. A records custodian must beidentified who can manage a particular COM’s records in support of proper records

lifecycle management, including appropriate access. Departing or transferringCOMs must identify their records prior to departure or transfer. Departing COMsare reminded they may take with them only personal papers and non-recordmaterials, subject to review by records officers to ensure compliance withfederal records laws and regulations. All records generated by senior officialsbelong to the Department of State.

3. Defining and Managing Records - Records may exist in many formats, includingInstant Messages (IM) and records on mobile devices like BlackBerrys, mobilephones, and iPads. Typical records created by COMs include not only e-mails,memos, and similar documents, but also calendars, schedules, and logs of dailyactivities. Additionally, senior official records should include the following:

Records pertaining to various committees, including Federal AdvisoryBoards, councils, and inter-agency and external committees in which



22/76


Page 2 of 5


Page 2 of 5

the senior official participated.

Materials relating to internal and external meetings, includingbriefing documents, minutes, and meeting notes.

Records documenting the development of Department policies andprograms, including correspondence, briefing and issue papers, andreports about policy, strategy, research and legislative priorities,program evaluation and planning, and similar topics.

Reports to Congress and/or the President.

To establish a sound records management program, senior officials should, atminimum, take the following steps:

Designate a records manager responsible for their records.

Follow established records disposition schedules, which set out theapplicable records retention and disposition requirements.

Establish a plan for maintaining and managing their records.

Collect, organize, and categorize their records in order to facilitate theirpreservation, retrieval, use, and disposition.

4. Specific Email Requirements and Procedures - E-mail is the most widely-usedtool within the Department for the conduct of official business. The Departmentgenerates millions of e-mail communications each year, many of which documentsignificant foreign policy and Department business decisions. The standard fordetermining whether an e-mail message meets the definition of a “record” underthe Federal Records Act is the same standard that applies to all other types ofDepartment records (5 FAM 443.2). As a supplement to existing policy, andconsistent with the policy in place since 2009, it is important to capture

electronically the e-mail accounts of COMs as they depart theirpositions. Instructions for senior officials are provided at the end of thismessage.

At no time during designated COMs tenure will their e-mail accountsbe cleared, deleted, or wiped for any reason.

While COMs may delete personal e-mails, they should be aware that thedefinition of a personal e-mail is very narrow. The only e-mails thatare personal are those that do not relate to or affect thetransaction of Government business.

As a general matter, to ensure a complete record of their activities,COMs should not use their private e-mail accounts (e.g., Gmail) for

official business. If a Senior Official uses his or her private e-mail account for the conduct of official business, she or he mustensure that records pertaining to official business that are sentfrom or received on such e-mail account are captured andmaintained. The best way to ensure this is to forward incoming e-mails received on a private account to the COM’s State account andcopy outgoing messages to their State account.



23/76


Page 3 of 5


Page 3 of 5

5. Visit the Department’s Records Management website for more information.

6. Instructions for Preserving Email of Departing Senior Officials

a. As part of the employee check-out process, Executive Directors and Post

Management Officers must notify their system administrators of thedeparture of designated Senior Officials and direct the systemadministrators to replicate the Official’s remaining email onto CDsaccording to the following directions. If possible ask departingOfficials to delete truly personal emails (to/from family, friends, andother non-work related emails) from their inbox, sent mail and PST.folders.

b. Note, preceding the Senior Officials’ departure, at no time during theirtenure in a position will their email account be deleted, cleared, orwiped for any reason. If, for instance, they reach their maximum allottedspace in their mailbox, the Executive Director, Post Management Officer,and the system administrator will work constructively with the SeniorOfficial to move older emails into stable and secure storage until thecheck-out process delineated in Instruction 1 is initiated.

c. System administrators must disable (but NOT delete) the OpenNet, ClassNet,POEMS and PACE Active Directory (AD) accounts of departing Officials.

d. System administrators do NOT delete the OpenNet, ClassNet, POEMS and PACEemail accounts of departing Officials.

e. System administrators DO hide (but not remove) names of departing Officialsfrom GALs.

f. System administrators DO delete the names of departing Officials from DLs.

g. Executive Directors, Office Directors or equivalent (Domestic Offices) orManagement Counselors/Officers (Posts) must provide A/GIS/IPS/RA (byOpenNet mail to [email protected]) with (a) the name of departedofficials, (b) the designated Bureau/Post Records Management Coordinator,and (c) the Bureau/Post System Administrator. After the information iscopied to the CDs, the bureau/post must verify that the CDs are readable before sending.

h. System administrators should create CDs for each OpenNet, ClassNet, POEMSand PACE email account of departed Officials. One set must be created forretirement, using the form DS-693, to A/GIS/IPS/RA for recordspreservation; the other is for Bureau/Post use, if required. See the Howto Retire Records page of the DOS Records Management intranet site forfurther guidance on retiring records using the DS-693:http://a.m.state.sbu/sites/gis/ips/RA/Pages/RetiredRecords.aspx.

i. System administrators must use the following .PST naming conventions:


http://a.m.state.sbu/sites/gis/ips/RA/Pages/Home.aspxmailto:[email protected]://a.m.state.sbu/sites/gis/ips/RA/Pages/RetiredRecords.aspxhttp://a.m.state.sbu/sites/gis/ips/RA/Pages/RetiredRecords.aspxmailto:[email protected]://a.m.state.sbu/sites/gis/ips/RA/Pages/Home.aspx


24/76


Page 4 of 5


Page 4 of 5

i. For “Mailbox” content, use the user name followed by“_MB”.

ii. i.e., Smith_ John H_MB. If the mailbox exceeds thecapacity of one CD, use: Smith_ John H_MB1 for the first .PSTcreated by the system administrator and Smith_ John H_MB2 forthe second .PST created by the system administrator,etc. (System administrators can decide where/how to split thecontent among multiple CDs.)

iii. For existing (user created) .PSTs, aka “personalfolders”, (this is a misnomer used by Microsoft since thecontent is “official”, not “personal”), use the user namefollowed by “_PF” i.e. Smith, John H_PF . If the existingPSTs exceed the capacity of one CD, or there are multiple.PSTs, use Smith, John H_PF1 for the first .PST, Smith, JohnH_PF2 for the second .PST, etc. (System administrators candecide where/how to split the content among multiple CDs.)

j. CD markings:

i. CDs from OpenNet, POEMS and PACE should be marked “SBU”(i.e., content not intended for public disclosure in accordancewith 12 FAM 5400). CDs from ClassNet must be market "Secret"(12 FAM 632.1-6).

ii. CDs must be marked with the user’s name and officesymbol or Post (example: John H. Doe, IRM/OPS/MSO).

iii. CDs must be marked with the users SMTP address ([email protected] or [email protected]).

iv. In the event .PST exceeds one CD, the CDs must includeX of Y (example, 1 of 3.)

k. Distributed System Administrator roles:

i. IRM will handle CD production for email accounts ofusers under IT Desktop Consolidation.

ii. Bureau/Office system administrators will handle CDproduction for email accounts that are NOT managed under ITDesktop Consolidation.

iii. Post system administrators should handle CD productionfor their email accounts.

iv. IRM’s IT Service Center ( IT Service [email protected] or (202) 647-2000) will be available to assist Post and Bureausystem administrators with technical support for the .PST and

CD creation process.

l. System administrators must NOT delete the source mailbox or .PST filesuntil after receipt of an email confirmation from A/GIS/IPS/RA andauthorization to delete.

m. Technical questions relating to the CD creation can be sent to the ITService Center on OpenNet at [email protected] or on ClassNet to


mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


25/76


Page 5 of 5


Page 5 of 5

[email protected] or by calling 202-647-2000. Otherquestions can be sent to A/GIS/IPS/RA on OpenNet at [email protected] or on ClassNet at [email protected] .

n. NOTE: Transferring records through Direct Network Transfer is also an

available option for the emails of Senior Officials. For assistance,please contact [email protected].

7. Minimize considered.

Signature: Kerry

Drafted By: M/PRI::KIRKPATRICKKG

Cleared By: AF/EX: MBREWER EAP/EX: KCSTANTON EUR-IO/EX: SXASHRUF NEA-SCA/EX:LLOHMAN WHA/EX: JHARLAN D(B): JGOLDBERG

D(MR): HHIGGENBOTTOM P: JWANG M: MABISHOP

S/ES-O: MMILLER

WASHDC\KernsVV

Approved By: M: PKENNEDY

Released By: IRM_OPS_MSO:Kerns, Venod V

Info: MINSK, AMEMBASSY IMMEDIATE

Dissemination Rule: Archive Copy

UNCLASSIFIED


mailto:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]:[email protected]


26/76

Exhibit 3



27/76

Case 1:13-cv-01363-EGS Document 24-1 Filed 08/12/15 Page 14 of 17Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 17 of 64


28/76



29/76

Exhibit 4



30/76

DAVII>

E

Kl:l®AlL

202) 3 4 · 5 ~ 4 )

d i ; ~ n < W l O W " e o l U

BY L I ~ C T R O N I C M A n ~

125 TWELFTH

STREET,

N.W.

WA5HINCTOlt D. c. 20005·5901

(202) 434.-5000

fAX

202) .434-5029

August 21,2015

The Honorable Patrick F. Kennedy

Under Secretary

of

State

for

Management

U.S. Department of State

2201 C Street NW

Washington,

DC

20520

Dear Under Secretary

Kennedy:

• ____ 1tD

Ml'INlTT'

W ( U . A M ~

1030.10

PAVL GIONNQU Y ( 1 B 1 ~ a - I . 1 ' & )

I write as personal counsel

to

former Secretary Clinton in regard to Judicial

Watch Inc. v U.S. Department o Slate Case No. 13-cv-01363 (D;D.C.). over which

the

Honorable

Emmet

O.

Sullivan

is

presiding. In light of

the

publicity

following

yesterday's status hearing in that case, we think it is important to reiterate

that Secretary

Clinton s use of personal e-mail was consistent

with

the practice of other Secretaries of

State and was

pennissible under State

Department policy in place during her tenure.

As former

Secretary Colin

PowelJ

VvTote in his memoir, It Worked for Me:

In

Life

and

Leadership

(Harper 20]2). in connection with his

work

as

Secretary,

he Ctjnstalled a

personallnptop on a private line. from which he accessed his personal

email

account,

which

he

used

to send ~ m a i l s to

his

uprincipal

assistants, to

individual

ambassadors,

and

increasingly

to

[his)

foreign-minister colleagues

_

(p.

109).

Likewise,

Secretary

Clinton used apersonal e-mail account for communicating during her tenure as Secretary.

Since 1995

J

the

federal

regulations

issued

by

the National Archives

and

Records

Administration ( NARA ) to implement the Federal Records Act

(the

'IPRN'), 44 U.S.C.

§3101 ef seq. have addressed

the use of external electronic

email systems by agency

personnel, 36 C.F.R. § 1234.24(8)(4)

(1996).1hereby

recognizing that

there

are

appropriate and

Jegal

circumstances in which outside e-mai( accounts may be used.

In

2009, while NARA made minor modifications

to

the wording of hat provision, referring

to e-mail

messages on

8 system not operated by the agency (instead of extemal

electronic email systems ), the

policy

e m i n ~ the same: when [a1genoies .•. allow

employees to send

and

receive official electronic

mail

messagc5

using

a system not

opcmted

by

the

agency,

such

agency


31/76

WILli MS CONNOLLY LLP

The

Honorable Patrick

F.

Kennedy

August 21.2015

Page 2

_ _. - . - .

Secretary Clinton followed that regulation through her practice of

communicating

with other Department officials

on

their state.gov e-mail accounts (which constituted the

va.'lt m ~ o r t y of Secretary Clinton's work-related e-mails), contemporaneously

forwarding e-mails

from

non-government parties to Department officials on their

state.gov m a i l

accounts,

copying Department officials

on

their state.gov accounts in the

case of c-malls

she

sent to non-government panies,

and

providing her work-related e

mails when

supplementation ofthe Department's recorth was

requested. I Through these

practices, she preserved ber work

w

related e-mails in the Department's c-mail systems so

that

they

were

available

to

the

Department

of

State.

I n d e e d ~

in

October 2 0 1 4 ~ when the State Department requested assistance from

the

four most

recent Secretaries of State to ensure that

its

records were as complete as

possible, Secretary Clinton directed her attorneys to identify

her

copies of her

work

related and potentially work-related e-mllils,

and

provided

tbose

30,490 e-mails in

hardcopy

(as set forth

in

5 FAM

443.3) on

December S 2014. Further. her attorneys

preserved the electronic version of

hose

0 ~ 4 9 0 e-mails. Almost all of

those

e-mails

(approximately 90%) already included a state.gov

e-mail address as

a sender or recipient,

or were forwarded to a state.gov e-mail address contemporaneously, such that this

production replicated what already would have been

available

on tbe state.gov

system.

NARA

and

the

Department of State

have

subsequently confirmed that this production

was

over-inclusive, and have indicated already that

at

this stage of State's

FOIA

review,

at least

1,246

of those e-mails were in fact personal. While

the

Department

has

not yet

identified and returned those 1,246

c-maiJs

to Secretary Clinton,

w

anticipate that many

ofthosc personal e-mails

fall within the

category orthe approximately 10%

of he

set

provided to State that was not contemporaneously on the state.gov system (and

had

no

r ~ s o n to be on

such system, given

their

personal

nature).

The

fact that this process was conducted by Secretary

Clinton1s

attorneys, at

her

direction. is also consistent with federal regulations

and

State Department policy.

In

the

ordinary course. it

is

the responsibility

of

individual officers and employees

to

make

judgments about

what

constitutes a federal record. s NARA has recently recognized

with regard

to the

role offederal employees

in

e ~ m a i l

management, U[c]urrently, in many

agencies, employees manage their own

email

accounts

and

apply

their

own

understanding

I

Notably, Secretary Clinton

(who did not have

her own state.gov

account)

followed

practices that are functionally the same as what isnow required

under

the 2014

amendments

to

the

FRA,

enacted after her tenure. Today,

PllISI.1atlt

to

44

U.s;C.

§

2911(a), in instances in which an officer or employee of an exocutive agency creates or

sends a record using a non-official electronic messaging account, the officer or employee

must cop[y] an official electronic

messaging

account of he officer or

employee

in the

original creation or transmission of he record'· or

forwardD

a complete copy ofthe

record

to

an official electronic messaging account of the officer or employee not later

than

20 days after the original creation or transmission of the record.



32/76

WILUAMS ;

CONNOllY

LLP

The Honorable Patrick F. Kennedy

August

21,

2015

Page 3

of:Federal

records

management. This means all

employees

are required to

review each

message, identify

its

value,

and

either delete

it

or move

it

to a recordkecping

system.

NARA Bulletin 2014-06,

14

(Sept. 15,2014). Similarly.

State

Department guidance

in

place during her

tenure

required. that [e

-maiJ message

creators and

recipients must

decide

whether a

particular message

is appropriate for p r e s e r v ~ t i o n and that

[i]n

making these decisions, all personnel should

exen:ise

the same judgment they use for

determining whether t ) retain and file paper records. Department of

State.

Foreign

Affairs

Manual,

FAM 443.2(b).

The Manual

further states that

'l[tJhe

intention of

this

guidance is not to require the preservation of every E-mail message. Its purpose is

to

direct the

preservation of hose messages that contain information that is

necessary

to

ensure that departmental policies programs, and activities

are

adequately

documented.

[d :

see

also

36

C.F.R.

§1222.l6(b)(3)

(''Nonrecord materials should

be

purged

when

no

longer needed for reference.

NARA's

approval is not required 10 destroy

such

materials. ). And as the

federal

regulations

mako

c l e r ~ there is

no

obligation

to

preserve

personal

e-mails.as

(p]crsonal

files

are

excluded from

the definition

of Federal

records

and are not owned by the Government.

36

C.F.R. § 1220.18.

n glving

assistance to the

Department to ensure its records were c o m p l e t e ~ Secretary Clinton took

an

inclusive

approach, providing

all

e-mails

that were

work·related

or

even potentially work-related.

Under the FRA and implementing regulations, she

had

no obligation

to

include

in

that set

her

persona)

e-mails,

or to retain such personal

~ m a i 1 s .

We hope that this letter will be of s s i s t a n c ~

to

the Department in connection with

the udicial Watch

lawsuit

and other,

similar lawsuits.

ly,

J

?

~



33/76

Exhibit 5



34/76

UN

DE

R SECRET RY

OF

ST TE

FOR M N

GE

MENT

W SHINGT

ON

t

V 1

2 14

Dea ills:

The Department of State has a longstanding and continuing commitment to

preserving the history of U.S. diplomacy, established in authorities under the

Federal Records Act of 1950. I am writing to you, the representative of Secretary

of

State Hillary Clinton, as well as

to

representatives

of ot

her former Secretaries

(principals), to request your assistance in further meeting this requ irement.

The Federal Records Act of 1950, as amended, 44 U.S.C. chapters 29, 3

and

33,

seeks to ensure the preservation

of

an authoritati

ve

record

of

official

correspondence, communications, and documentation. Last year, in Bulletin 2013-

03 the National Archives and Records Administ ration NARA) clarified records

management responsibilities regarding the use of personal email accounts for

official govern

ment

business. NARA recommended that agencies refer to its

guidance when advising incomi

ng

and departing agency employees about their

records management responsibilities. This bulletin was followed by additional

NARA guidance on managing email issued on September 15, 2014. See enclosed.

We recognize that some period

of

ime has passed since your principal

served as Secretary

of

State and that the NARA guidance post-dates that service.

Nevertheless,

we br

ing the NARA guidance to your attention in order to ensure

that the Department s records are as complete as possible. Accord ingly, we ask

that should your principal or his or her authorized representative be aware or

become aware in the future

of

a federal record, such as an email sent

or

received on

a personal email account whi le serving as Secretary of State, that a copy of this

record be made availab le to the Department. In this regard, please note that

diverse Depa1tment records are subject

to

various disposition schedules, with most

Enclosures - 3

Ms. Cheryl Mills,



35/76

Secretary of State records retained permanently. We sk that a record be provided

to the Department if there is reason to believe that it may not otherwise be

preserved in the Department s recordkeeping system.

The Department is wiJling to provide assistance to

you

in this effort. In the

meantime,

should

you have any questions regarding this request, please do not

hesitate to contact William Fischer, A/GIS/IPSIRA, Agency Records Officer, at

(202) 261-8369.

\Ve

greatly appreciate your consideration

of and

assistance with

this matter

Sincerely,

~ ~ n n e y



36/76

Exhibit 6



37/76

VI H ND ELIVERY

The Honorable Patrick

F

Kennedy

Under

Secretary of State

for

Management

U.S. Department of State

2201

C Street, N.W.

Washington, DC

20520

December 5,

2014

Dear Under Secretary Kennedy:

cdm iUs roup

ende vors th t moffer

I am writing in response

to

your request for assistance in helping the

Department meet

its requirements

under the

Federal Records

Act

.

Like Secretaries

of

State before her, Secretary Clinton

at

times used

her

own electronic mail account when engaging with

other

officials. On

matters pertaining to the conduct

of

government business, it

was

her

p r c t i c ~ to

use the officials

government

electronic

mail

accounts.

Accordingl

y to

the

extent

the

Department retains records of

government

electronic mail accounts, it already has records of her electronic mail

d

uring

her tenure preserved

within

the Department s recordkeeplng

systems.

Out of

an abundance

of

caution though and

to

assist the

Department

the

Secretary s electronic mail has been reviewed. Please find enclosed those

electronic mails we believe respond to your request. Given the volume

of

electronic mails being provided, please note these

mater

ials inevitably

include electronic mail that are not federal, and in some cases are

personal, records which we request be handled accordingly.

Sincerely,

Cheryl Mills



38/76

Exhibit 7



39/76

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3

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9

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12

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1

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC.,

Plaintiff,

vs.

U.S. DEPARTMENT OF STATE,

Defendant.

)))

))))))

Civil ActionNo. 15-688 (RC)

STATUS CONFERENCE

Washington, DCDate: July 9, 2015Time: 10:01 a.m.

___________________________________________________________

TRANSCRIPT OF STATUS CONFERENCEHELD BEFORE

THE HONORABLE JUDGE RUDOLPH CONTRERASUNITED STATES DISTRICT JUDGE

____________________________________________________________

A P P E A R A N C E S

For the Plaintiff: Chris Fedeli, Esq.Judicial Watch425 Third Street, SW, Suite 800Washington, DC 20024202-646-5172

For the Defendant: Daniel Riess, Esq.

Elizabeth Shapiro, Esq.US Department of JusticeCivil Division20 Massachusetts Avenue, NWWashington, DC 20530202-353-3098

Also Present: Tom Fitton, Judicial WatchPaul Orfanedes

Proceedings reported by machine shorthand, transcriptproduced by computer-aided transcription.

____________________________________________________________Court Reporter: Annette M. Montalvo, CSR, RDR, CRR

Official Court ReporterUnited States Courthouse, Room 6722333 Constitution Avenue, NWWashington, DC 20001202-354-3111



40/76

1

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(WHEREUPON, commencing at 10:01 a.m., the

following proceedings were had in open court, to wit:)

THE COURTROOM DEPUTY: Civil Action 15-688.

Judicial Watch Inc. v. US Department of State.

Counsel, please step forward to the podium and

state your appearance for the record.

MR. FEDELI: Good morning, Your Honor. Chris

Fedeli for plaintiff Judicial Watch.

THE COURT: Good morning.

MR. RIESS: Good morning, Your Honor. Daniel

Riess for the defendant.

THE COURT: Good morning.

All right. I got a status report in which the

parties took very differing positions, so let's talk about

the various issues. Who wants to go first?

You want to go first since it is your FOIA

request?

MR. FEDELI: Yes, Your Honor.

So what I would like to talk about is three of the

four questions I posed to defense counsel were about

preservation of records, the fourth being about search

terms.

Now, ordinarily, in a FOIA case, I never ask

opposing counsel if they are preserving records, but there

are very unusual facts underlying this FOIA case.



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The request was an attempt to narrow the issues

and get assurances so we didn't have to come to the Court

about preservation issues. Opposing counsel was unwilling

to provide those assurances so I wanted to make the Court

aware that we have concerns about preservations. We think

they are reasonable concerns, given what's gone on and

what's been reported about how documents were managed by the

State Department. And we feel that the records we seek are

very likely to include high-level discussions about

conflicts between the Secretary and the Clinton Foundation.

They may be the records which have been reported to have

been kept off-site and managed in unusual ways. So we think

it is reasonable to ask for those assurances and to get

assurances the records are being preserved.

And the preservation requirements here we believe

are also a little bit unusual. Ordinarily, preservation is

you send out a memo saying, "Please, nobody delete

anything." In this case, I think active steps are going to

be required for defendant to make assurances that all

records are being preserved. And those active steps I've

outlined in the questions I posed.

THE COURT: Okay. Now, with respect to whatever

areas, if any, the parties may be in agreement on, is there

anything about the government's proposal that you think you

can live with?



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MR. FEDELI: I thought the proposal regarding the

timing of the, you know, the initial search and the 250

pages is reasonable, assuming, of course, obviously, we want

that search to be as broad as possible and it's going to

include documents that we don't yet know are, you know,

secured and being preserved and have been obtained by the

State Department. We do understand as of two days ago in a

filing in another case involving the State Department and

Judicial Watch, another FOIA case, that defendant has taken

the steps of contacting former officials, three former

officials --

THE COURT: Which case was that?

MR. FEDELI: I have it right here. It was a case

before Judge Lamberth. And I have the case number, if you

would like me to grab that.

THE COURT: I would.

MR. FEDELI: This is Case No. 14-1242. And in

that filing on July 7 --

THE COURT: Are you the party in that case?

MR. FEDELI: Judicial Watch is the party, yes.

THE COURT: Okay.

MR. FEDELI: And in that filing, the State

Department attached a declaration indicating they have

already sent letters to former State Department officials,

Ms. Mills, Mr. Sullivan, and Ms. Abedin, who were reported



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to be using non-state.gov e-mails, and that as of a week ago

two of the three had turned over documents to the State

Department, work related e-mails. And one of those was

responsive to the FOIA request in that case.

So apparently defendant agrees with me, at least

to an extent, that there are unusual steps necessary here

for preservation. Ordinarily, when you get a FOIA request,

you would not pick up the phone and start calling former

employees and saying "Can you please bring back those

documents." Here, we think the duty of preservation would

include steps such as those.

THE COURT: Okay. Let me hear from the

government. Thank you.

Before you get started, at the beginning of the

Leopold case, in which I am on as well and which you cited

in the status report, I asked the government whether the

government -- because there's a number of these cases out

there now, whether the government plans to do anything to

consolidate these because it doesn't make a lot of sense for

six different judges to be ordering six different things, to

a certain extent.

Has the government given that any thought?

MR. RIESS: To my knowledge, Your Honor, there

hasn't been any talk of consolidation of the cases.

THE COURT: Okay. Well, as you know, these are



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very unusual circumstances, and it would not take a wild

imagination to think that there will be some discovery in

these FOIA cases, and if six different judges start ordering

six different forms of discovery, that's going to be

impossible to manage for everybody. So give that some

thought.

MR. RIESS: I understand, Your Honor. We will.

THE COURT: All right.

MR. RIESS: Just briefly, with respect to the

questions, there are a number of questions -- as Your Honor

mentioned, there are about, I believe, 35 cases at last

count, mostly against the State Department, that are seeking

records related to the former Secretary Clinton's e-mails.

At least 8 to 10 of them are brought by Judicial Watch as a

plaintiff. And in each one of those, at least 8 to 10, they

are propounding questions.

And so the position we have is that we don't want

to set a precedent. The purpose of FOIA is to search for

responsive records and provide them to the requester, not to

go beyond that and respond to what is, in effect,

interrogatories.

THE COURT: Questions about preservation are not

interrogatories, are they? Isn't that the normal meet and

confer requirement that every party takes at the beginning

of a case?



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MR. RIESS: In civil litigation, I believe, I

mean, there are litigation holds, but, to my knowledge, in

FOIA cases, I have not seen, let's see, a request that there

be preservation of records. I have seen it typically

proceed that the requester asks for records, we conduct the

search and process the documents and provide them.

THE COURT: All right. If an agency receives a

request for documents, and subsequent to that point the

documents are destroyed, isn't that a violation of FOIA?

MR. RIESS: I think that it could be construed as

that, yes, Your Honor.

THE COURT: So there's some duty to preserve, you

have to concede that, don't you?

MR. RIESS: Yes. I think, though, in this

instance, since we are talking about at least in this case a

relatively quick turn over, and in the Leopold case we are

talking about production on a rolling basis until January

29, I don't think there's a realistic expectation that

people are going to go out and destroy records between now

and then. And as to the extent of this that's not seeking

Clinton e-mails, we've -- my client has said they can

perform the search by mid August. And the only question is

just they don't know the number -- the volume of responsive

documents, and they have asked for a little bit of leeway,

depending on how many documents it turns out not related to



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the e-mails that are responsive.

THE COURT: Okay. Counsel for Judicial Watch

mentioned this case in front of Judge Lamberth, which I am

unfamiliar with. In that case, the government reached out

to former employees to secure official documents?

MR. RIESS: Yes, I believe that's right. They

filed a summary judgment motion in No. 14-1242 on July 7, I

believe. So that case was actually at a more advanced

stage.

THE COURT: So the representations about who

was -- former employees that were reached out to was in the

context of declarations for summary judgment?

MR. RIESS: I believe that's correct, Your Honor.

THE COURT: All right. Have any efforts in this

case been made to reach out to former employees?

MR. RIESS: No. Not in this case, Your Honor.

THE COURT: Okay. With respect to the 55,000 or

so Clinton e-mails, I gather from in Leopold , those

documents were digitized and searchable? Is my recollection

correct?

MR. RIESS: To be honest, I don't know,

Your Honor. I can find out.

THE COURT: Okay.

MR. RIESS: I would assume that since its rolling

production and with that larger volume --



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THE COURT: Hold on.

MS. SHAPIRO: Sorry. I am sorry to jump in,

Your Honor.

THE COURT: Not at all. That's why I wish there

would be more coordination. It seems like when it is

convenient to refer to other cases, it is done, but when it

is not, it is not done. So, you know, I would like to get

answers.

MS. SHAPIRO: Right. And I jumped up because I

think I can give you a little more of a bird's-eye view.

THE COURT: Are you su

Judicial Watch, Inc. v. U.S. Department of State

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Transcript of Judicial Watch, Inc. v. U.S. Department of State