Department of State Electronic Email Preservation Rate Hovers under 0.0061%, and Much More: FRINFORMSUM 3/11/2015

By Lauren Harper and Nate Jones

The most important claim made by Hillary Clinton about her use of a private email address and storing the emails on a private server while Secretary of State was that because she sent her official emails to “government officials on their State or other .gov accounts [] that the emails were immediately captured and preserved,” and that therefore she had complied with the Federal Records Act, Federal Regulations (36 CFR 1263.22), and US National Archives guidance (NARA Bulletin 2011-03) on preserving email.

A Department of State Office of Inspector General report –released today with little fanfare– casts much doubt that the former secretary’s emails were actually “captured and preserved” as she claimed.

The report found that State Department “employees have not received adequate training or guidance on their responsibilities for using those systems to preserve ‘record emails.’ In 2011, employees created 61,156 record emails out of more than a billion emails sent.” In other words, roughly .006% of DOS emails were captured electronically. And in 2013 a paltry 7 emails were preserved from the Office of the Secretary, compared to the 4,922 preserved by the Lagos Consulate in Nigeria. The odds that the account holders of .gov email addresses that the former secretary relied upon to save her emails actually did so are incredibly slim.

Even though the report notes that its assessments “do not apply to the system used by the Department’s high-level principals, the Secretary, the Deputy Secretaries, the Under Secretaries, and their immediate staffs, which maintain separate systems,” the State Department has not provided any estimation of the number of Clinton’s emails that were preserved by recipients through the Department’s –ahem– “print and file” system for preserving digital documents, or any other system.

As the Archive reported earlier, though Clinton was likely in breach of record keeping laws and best practices, a sad silver lining may be that her personal email system preserved emails that the State Department system could not.

Other purportedly personal emails (some 32,000 emails as deemed by Clinton’s team – not FOIA processors) were not preserved. It remains to be seen whether or not it is possible to retrieve the deleted emails from Clinton’s hard drive. As Douglas Cox has argued, the “solution should have been an independent National Archives review of all of Clinton’s emails to determine which were properly considered federal records” as occurred with the federal records that former secretary of state Kissinger incorrectly contended were his personal files.

Former secretary Clinton also avoided directly addressing whether or not her personal email usage impeded the State Department from accurately responding to FOIA requests. In a fact sheet provided by her office, the answer to the question about FOIA (question 9) addressed completely different topics: hacked email and emails requested by Congress. Dan Metcalfe, the founding director of the Department of Justice’s Office of Information Policy (OIP) – responsible for ensuring federal compliance with the FOIA – was less circumspect. He called Clinton’s use of private email a “blatant circumvention of the FOIA [in addition to] the Federal Records Act by people on both sides of it who unquestionably knew better.”

Moving forward, the biggest question about Clinton’s remaining emails, now possessed by the Department of State –in *shudder* paper, not digital format– is how redacted they will be when they are made public.

The State Department recently released the first email associated with Mrs. Clinton’s private email address in connection to a FOIA lawsuit brought by journalist Alexa O’Brien, who in turn shared the email with VICE news. The December 24, 2010, email found in former State Department Spokesman P.J. Crowley’s records, is entitled “WikiLeaks Update,” and is nearly entirely redacted pursuant to the b(5) “withhold it because you want to” exemption.

Mrs. Clinton has said she wants “the public to see” her email and has asked the State Department to review them for release, but the only way the public will see any meaningful documentation is if State Department reviewers embrace a presumption of openness and refuse to use this discretionary exemption to redact any “inter-agency communications” –that is, to blank out entire documents.

UPDATE: On Marcy 13, 2015 Department of State Spokesperson Jen Psaki confirmed that emails at the State Department, including emails that Clinton claimed were “captured in real time” by other state.gov email accounts, were in fact not automatically or routinely archived.

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FRINFORMSUM (FReedom of INFORMation SUMmary) continues:

“Emailgate” has called attention to NARA’s reluctance to ask the Department of Justice to prosecute government officials who unlawfully destroy official records. One instance in which NARA did open an inquiry involved Jose Rodriguez, the former CIA official in charge of the agency’s defunct torture program that ordered the destruction of key videos documenting it in 2005, claiming that “the heat from destroying [the torture videos] is nothing compared to what it would be if the tapes ever got into the public domain.” While NARA did initiate an inquiry, the National Security Archive and Docexblog –which has followed the story better than anyone— still have not seen any indication of the inquiry’s completion or findings. The Department of Justice decided not to file criminal charges against Rodriguez in 2010.

U.S. District Court Judge Gladys Kessler recently ruled that a FOIA requester could not use the FOIA to “gain access to the private email of a government official.” The case concerns the Competitive Enterprise Institute’s request for Office of Science and Technology Policy Director John Holdren’s emails. Kessler indicated she made the ruling in part “because Holdren issued a memo to his agency in 2010 that required that work-related emails exchanged on private accounts be ‘promptly copied’ to the agency.”

CIA director John Brennan announced the agency will undergo an extensive restructuring intended to eliminate “seams” in coverage. “The overhaul is designed to foster deeper collaboration and an intensified focus on a range of security issues and threats, replacing long-standing divisions that cover the Middle East, Africa and other regions with hybrid ‘mission centers’ modeled on the CIA’s Counterterrorism Center.”

The CIA began helping the U.S. Marshals, a Department of Justice (DOJ) component, build the technology the Marshals use for their “stingrays” – small planes “mounted with controversial cell-phone tracking systems” – over a decade ago. The Wall Street Journal revealed last year that the Marshals were collecting “large amounts of data from Americans’ cell phones through devices mounted on airplanes in an effort to locate fugitives” as part of a program that is run out of five unidentified large metropolitan areas. Both the CIA and the Justice Department have denied that the CIA, which is largely barred from conducting domestic operations, violated any rules helping the Marshals build its surveillance capabilities.

The Intercept recently published an in-depth analysis, based on documents provided by former National Security Agency (NSA) contractor Edward Snowden, of the CIA’s multi-year campaign to degrade Apple’s encryption for its iPhones and iPads. The Intercept reported hacking strategies were discussed at a secret annual CIA event called the Trusted Computing Base Jamboree, and focused on “targeting essential security keys used to encrypt data stored on Apple’s devices” used internationally by hundreds of millions of Apple customers. The revelations come shortly after Kaspersky Lab, a Russian cybersecurity firm, reported details of a sophisticated hacking group with intricate ties to the NSA that found ways to permanently embed surveillance tools that are so sophisticated they infect a computer’s “firmware” (the embedded software that prepares a computer’s hardware before the operating system starts).

Wikipedia and eight other groups filed a lawsuit this week (Wikimedia Foundation, et al, v. National Security Agency, et al, U.S. District Court for the District of Maryland, No. 15-662) challenging the NSA’s dragnet surveillance practices. The suit argues that the NSA’s practices violate both the First and Fourth Amendments, and “‘reduces the likelihood’ that journalists, foreign government officials, victims of human rights abuses and other individuals will share sensitive information.”

A recent Defense One editorial argued that whistleblower protection rules serve “more as a trap for would-be whistleblowers rather than a shield against retaliation.” The editorial was bolstered by a recent Government Accountability Office (GAO) report that examined “five dozen FBI whistleblower claims, and found only three that resulted in some form of corrective action.” The GAO found that DOJ regulations only protect “disclosures made to a handful of high-ranking officials and not those made to direct supervisors in the employees’ chain-of-command,” and as a result the DOJ ignores “a significant portion” of whistleblower claims.

A leak investigation involving former vice chairman of the Joint Chiefs of Staff, Marine Gen. James E. “Hoss” Cartwright, has been stalled by concerns it could force confirmation of joint U.S.-Israeli efforts to sabotage Iranian nuclear efforts. Cartwright is accused of leaking information regarding “a highly classified operation to hobble Iran’s nuclear enrichment capability through cyber-sabotage” to a New York Times reporter. The information, including the project’s code name – Olympic Games – was included in several of Times’ reporter David E. Sanger’s June 2012 publications, and corroborated earlier reports that the Stuxnet virus, which attacked Iranian nuclear centrifuges, was the result of U.S.-Israeli collaboration.

The news of the stalled investigation comes shortly after the announcement that former CIA director and retired four star general David Petraeus reached a plea deal with the DOJ after admitting to sharing classified information with Paula Broadwell and lying to the FBI about it. Under the plea deal Petraeus will plead guilty to one misdemeanor and serve no jail time, underscoring the double-standard of high ranking officials receiving little-to-no punishment for security breaches, while lower ranking officers are regularly threatened with jail time and heavy fines.

Happy FOIA-ing!