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Judge faults State Department for 'lax' response to Clinton-linked FOIA surge

A federal judge is faulting the State Department for slacking off in its effort to process Freedom of Information Act requests after the diplomatic agency finished cranking out about 30,000 of Hillary Clinton's emails earlier this year.

In an order Monday, U.S. District Court Judge Rudolph Contreras largely rejected a State Department request for a 27-month extension to respond to conservative group Citizens United's demands for emails among four former State officials and individuals at the Clinton Foundation and a consulting firm close to the Clintons, Teneo.

The judge said State's own data showed a "marked drop" in resources devoted to FOIA processing at the agency in February, around the time the last batch of emails Clinton turned over to State were publicly released.

"As clearly shown in Defendant’s graph, Defendant has, since February 2016, reduced the amount of resources it is devoting to FOIA processing ... this reduction occurred even though Defendant’s number of FOIA cases in litigation and Defendant’s number of open FOIA requests have not experienced a similar decrease," Contreras wrote. "Because these facts imply that Defendant has been 'lax ... in meeting its [FOIA] obligations...with all available resources. ...,' the Court does not find a twenty-seven month extension of time appropriate."

Instead, the appointee of President Barack Obama gave State four months to finish processing about 12,000 pages of emails on a staggered schedule that will get about 10,000 pages of that to Citizens United before the November election in which Clinton will be the Democratic presidential nominee.

Contreras pointed to a 1976 D.C. Circuit case which he said explained "that 'Congress wished to reserve the role of the courts' precisely for situations in which an agency has not shown due diligence when processing a FOIA request."

Spokespeople for the State Department and for the Justice Department, which represents State in court, declined to comment on the judge's order or his criticism of the agency.

However, in other cases, State officials have said the drop-off in people devoted to processing resources last February was a natural result of many of those involved in the massive task of processing the more than 50,000 pages of Clinton emails taking a break. (State is now in the process of receiving several thousand more Clinton emails that she did not turn over but were recovered by the FBI during its recently closed criminal investigation.)

State generally depends on retired foreign service officers for much of the work in analyzing FOIA requests for possible exemptions. Many of those people are limited by law to working no more than about 1,000 hours per year. After working on the Clinton emails for months, some were required to take time off and others simply chose to.

At a hearing last week on a Clinton-related FOIA suit brought by the Republican National Committee, Justice Department lawyer Elizabeth Shapiro called the apparent staffing drop "a little misleading." She said detailees brought on for the Clinton email project had to return to their regular duties elsewhere at State and about 44 people hired for permanent posts as part of a FOIA surge ordered by Secretary of State John Kerry were still getting training and security clearances.

"There are enormous efforts being made," Shapiro insisted.

"We've been hiring a lot of people," State FOIA official Eric Stein declared.

While Contreras was clearly not satisfied with State's overall level of effort, he said in his order Monday that the Citizens United FOIA requests at issue arrived "relatively late." State got a wave of such requests soon after The New York Times revealed in March 2015 that Clinton had relied solely on private servers for her email traffic during her tenure as secretary of state, but the conservative group's demands involved in the case ruled on Monday were filed last October or November.

"Defendant’s processing of Plaintiff’s requests should not necessarily supersede its processing of requests filed before Plaintiff’s," Contreras wrote as he gave State until Nov. 21 to wrap up processing of the emails involved.

CORRECTION (Tuesday, 7:24 P.M.): The initial version of this post incorrectly identified the president who appointed Contreras.