Court Victory: Federal Judge Orders Homeland Security Secretary Jeh Johnson, Other Top DHS Officials, to Preserve Email Records Sought by Judicial Watch

‘Specifically, the Court will order the individuals to copy any emails from the relevant time period in any private email accounts that might contain responsive materials onto portable thumb drives, to be kept in the individuals’ personal possessions.’ – U.S. District Court Judge Randolph Moss

(Washington, DC) – Judicial Watch announced today that U.S. District Court Judge Randolph D. Moss has ordered Department of Homeland Security (DHS) Jeh Johnson and three other top DHS officials to preserve “all emails regarding, concerning, or related to official United States Government business” they sent through non-“gov” emails from December 23, 2013, and December 29, 2015.” The court order came in a Judicial Watch Freedom of Information (FOIA) lawsuit seeking agency records in the personal email accounts used by the four top Homeland Security officials (Judicial Watch v U.S. Department of Homeland Security (No. 1:16-cv-00967).

Ruling “out of an abundance of caution,” Judge Moss ordered the preservation of records “to minimize the risk of any inadvertent loss of potentially responsive emails.” The court ruling covers Johnson, Deputy Secretary Alejandro Mayorkas, Chief of Staff Christian Marrone, and General Counsel Stevan Bunnell:

ORDERED that Secretary Johnson preserve all emails sent or received between December 23, 2013, and December 29, 2015, that are stored in any of his private email accounts that may contain responsive records, including any emails in archived or deleted folders, on a portable thumb drive or hard drive to be kept in his possession until this Court determines that the emails must be provided to the Department for processing or that they may be deleted; FURTHER ORDERED that Deputy Secretary Mayorkas, former Chief of Staff Marrone, and former General Counsel Bunnell do the same with respect to their own private email accounts that may contain responsive records…

On December 22, 2016, Judicial Watch filed a Motion for Preservation Order in which it asked the court to issue a “preservation order” for the non-.gov emails of Johnson, Mayorkas and Bunnell because their departure from government service was anticipated upon the installation of the new administration, at which point, Homeland Security would no longer have any control over the former officials:

With the upcoming change in administrations on January 20, 2017, it is likely that the three officials currently in office (Secretary Jeh Johnson, Deputy Secretary Alejandro Mayorkas, and General Counsel Stevan Bunnell) will leave government service. Counsel for DHS has informed [Judicial Watch’s] counsel that DHS has “asked” these officials to preserve the agency records in their possession. DHS’ counsel declined to provide any evidence supporting this assertion. Because [Judicial Watch] does not know specifically what DHS asked its employees to do and what, if any, other steps DHS has taken to ensure preservation, Plaintiff is concerned DHS’s mere requests to its employees are insufficient. This will be particularly concerning once the officials possessing the emails leave government employment, as the agency will have no control over the actions of these officials… A court order requiring preservation of these emails is particularly necessary now as DHS has suggested that these officials may have been acting without authorization by sending emails from these accounts…. As such, there is no assurance that these officials will abide by a “request” by the agency to preserve these emails, particularly after their employment ends…

At a hearing on January 5, Obama Justice Department lawyers confirmed that they had done nothing done to retrieve government records from Jeh Johnson or the other officials’ accounts. On January 10, Judge Moss ordered DHS to produce any “preservation requests” for emails sent to Johnson, Mayorkas, Marrone, and Bunnell. In today’s court ruling, Judge Moss specifically ordered the DHS officials to preserve all of the contested emails.

“This is a definitive victory for the American people,” said Judicial Watch President Tom Fitton. “We have every reason to believe that there are government records on Jeh Johnson’s and other top DHS officials’ personal email accounts. The fact that the Obama administration has stonewalled their production is yet another example of the lack of transparency that has permeated this administration. Once again, it took persistent legal action from Judicial Watch to preserve the public’s right to know.”

In June, Judicial Watch in a related case obtained 693 pages of Homeland Security records revealing that Secretary Jeh Johnson and 28 other agency officials used government computers to access personal web-based email accounts despite an agency-wide ban due to heightened security concerns. The documents also reveal that Homeland Security officials misled Rep. Scott Perry (R-PA) when Perry specifically asked whether personal accounts were being used for official government business.

The waivers were granted to Johnson and other senior staffers after Homeland Security’s Sensitive Systems Policy Directive 4300A was promulgated on April 30, 2014. The Directive was issued after hackers breached the Office of Personnel Management computer system. Directive 4300A states, “The use of Internet Webmail (Gmail, Yahoo, AOL) or other personal email accounts is not authorized over DHS furnished equipment or network connections.”

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