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    FOIA Tag

    On August 10, 2015, I asked Did Hillary just walk into a perjury trap over her emails?. The document in question was a very curiously worded Declaration under oath signed by Hillary in a Judicial Watch FOIA lawsuit:
    "1) While I do not know what information may be "responsive" for purposes of this law suit, 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 and belief, this has been done...."

    The Ithaca Journal has an article today about my court victory against the Ithaca City School District (ICSD) seeking records under the NY Freedom of Information Law regarding the anti-Israel 3rd Grade event. The Ithaca Journal article, discussed below, reveals that ICSD spent over $20,000 in its fight to avoid having to disclose video and documents regarding the event. I laid out the history and the court ruling in my post, Another Legal Insurrection victory: Ct orders video released of anti-Israel 3rd Grade event. The short version is that for the second time, the court granted virtually all my requests, including forcing ICSD to release a video of the event. Before the litigation began I suggested the video be redacted by ICSD to protect student privacy, but ICSD refused to release ANY portion of the video or audio, even the portions that didn't contain student images or voices.  Instead, ICSD produced a partial transcript with obvious gaps.

    Last week, GOP presidential candidate Donald Trump said he would battle the "regulatory industry" that has prospered under President Obama. The Environmental Protection Agency has been the tycoon of this industry. Now, in what is hopefully a sign of turnaround, a court has ruled in favor of American farmers who have been pitted against the agency in a Freedom of Information Act lawsuit.
    A federal appeals court recently overruled a lower court decision to throw out a lawsuit brought by the National Pork Producers Council and the American Farm Bureau Federation against the U.S. Environmental Protection Agency over its release to environmental groups of personal information on tens of thousands of farmers. In late 2015, a U.S. district court dismissed the NPPC-Farm Bureau suit for lack of standing. But the U.S. Court of Appeals for the 8th Circuit in St. Louis ruled that “the associations have established a concrete and particularized injury in fact traceable to the EPA’s action and redressable by judicial relief.”

    Judicial Watch has been fighting a years-long battle to obtain records under the Freedom of Information Act (FOIA) regarding Huma Abedin's non-State Department employment arrangement. In the course of that fight, issues regarding Hillary Clinton's handling of email and her email server have become central. Judicial Watch has won many key procedural fights, the latest of which was the Court ruling that Judicial Watch could take discovery as to State Department practices with regard to obtaining Hillary's emails. The two sides have submitted their positions to the Court, but the Court may not need to rule because an agreement was just reached (full embed at bottom of post). The agreement, in the form of a Joint Proposed Order, gives Judicial Watch what it was seeking, but puts off limits discovery regarding Hillary's handling of classified information and the FBI investigation, which Judicial Watch was not seeking in any event. Here is the key paragraph:

    In late February we reported that the court in the FOIA case seeking State Department records as to Huma Abedin granted Judicial Watch's motion for discovery, and required Judicial Watch to submit a discovery plan:
    In a ruling sure to keep the Hillary Clinton email scandal alive through the summer, if not longer,  a federal just has granted Judicial Watch the right to take discovery as to whether Hillary’s home server was part of an effort to evade the Freedom of Information (FOIA) law by shifting federal records off-site and into the sole control of Hillary, her attorney’s and consultants.... Given the difficulty of obtaining records, particularly in light of the destruction of at least some records maintained on Hillary’s home server, led Judicial Watch to seek discovery, including depositions of key officials. Such discovery is not routine in FOIA cases, and good cause needs to be shown to obtain discovery.... The Court granted the motion today, via two Minute Orders (meaning orders reflected on the court docket sheet, not separate documents:

    In a ruling sure to keep the Hillary Clinton email scandal alive through the summer, if not longer,  a federal just has granted Judicial Watch the right to take discovery as to whether Hillary's home server was part of an effort to evade the Freedom of Information (FOIA) law by shifting federal records off-site and into the sole control of Hillary, her attorney's and consultants. We have been following Judicial Watch's federal lawsuit seeking State Department records regarding Huma Abedin's outside employment. The FOIA request giving rise to the suit also has given rise to much obfuscation by State, which even resulted in the Court ordering Hillary Clinton to provide a declaration under oath as to records. Given the difficulty of obtaining records, particularly in light of the destruction of at least some records maintained on Hillary's home server, let Judicial Watch to seek discovery, including depositions of key officials. Such discovery is not routine in FOIA cases, and good cause needs to be shown to obtain discovery. In a Motion for Discovery (full embed at bottom of post), Judicial Watch laid out the case how Hillary may have conspired to evade FOIA:

    For the second time in a month, a Washington, D.C., court has rejected DOJ's arguments for withholding documents related to the Fast and Furious scandal. Last month, Judge Amy Berman Jackson of the United States District Court for the District of Columbia, presiding in Committee On Oversight And Government Reform, United States House of Representatives v. Lynch (the "House Suit"), rejected the Justice Department's assertion of the "deliberative process privilege" to withhold around 10,000 Fast and Furious documents.  Judge Jackson held that DOJ had waived the privilege by previously releasing a substantial amount of information about the same documents it then sought to withhold. I discussed Judge Jackson's decision in more detail, here.

    It's Friday night. So the State Department just released a new batch of Hillary emails. Because weekend. There are 22 emails, however that will not be released:
    The State Department has concluded there is "top secret" material in Hillary Clinton's email correspondence from the time she was secretary of state, indicating that some of her emails will never be released, even in heavily redacted form, because they are too sensitive for the public to view. State Department spokesman John Kirby said the material crosses seven email chains, amounting to 37 pages worth of material.
    Hillary wants the 22 Top Secret emails released to the public:

    For those of you who put money on there being more to this Clinton email scandal than what was contained in the already-released files, step forward and collect your prize---this thing isn't over yet. Today, advocacy group Judicial Watch released documentation showing an almost five-month gap in the timeline of emails Secretary of State Hillary Clinton chose to return to the State Department last year. The details, from Judicial Watch:
    The documents were produced under court order in a Freedom of Information Act (FOIA) lawsuit Judicial Watch filed on May 6, 2013 (Judicial Watch, Inc. v. U.S. Department of State (No. 1:15-cv-00687)). The lawsuit was filed after the Obama State Department violated federal law and failed to respond to two separate FOIA requests, including a request for records about the actual production of the emails records by Clinton to the State Department. The first batch of documents obtained by Judicial Watch contains a heavily redacted email from State Department official Eric F. Stein to Margaret P. Grafeld, dated April 21, 2015, with the subject “HRC Emails.” Stein is deputy director of global information systems at the State Department and Grafeld is deputy assistant secretary of global information systems. Stein reports to Grafeld that the “gaps” in Clinton’s emails include:

    We previously wrote how the State Department filed a motion to stay the Freedom of Information Act (FOIA) case filed by Judicial Watch seeking records with regard to Huma Abedin's outside employment while serving as Hillary Clinton's State Department aide. In this case, Judge Emmet Sullivan forcefully had required the State Department to search for records, including requiring outreach to the FBI as to searches of Hillary's server. Judge Sullivan has harshly criticized State Department behavior as well as what he termed Hillary’s failure to follow policy:
    THE COURT: Right. But assuming, though, in that scenario there wasn’t a violation of government policy either, correct? We’re not talking about a search of anyone’s random e-mail accounts. We’re talking about a search of devices that may have contained official government documents, that’s what we’re talking about. We wouldn’t be here today had the employee followed government policy, right? [transcript at 16]
    The motion for a stay was in conjunction with a request for appointment of a coordinating judge to handle numerous FOIA cases involving Hillary's emails. While purportedly filed to increase court efficiency, it looked like a naked attempt to take the case away from Judge Sullivan. In a ruling that was just posted, Judge Sullivan denied the motion for a stay, and asserted his right to control his own docket:

    Will Hillary Clinton be subject to a deposition under oath as to her use of various electronic devices and servers as part of the Judicial Watch FOIA federal lawsuit seeking records as to Huma Abedin's outside employment? That is a distinct possibility in light of the State Department's apparent failure to comply with a Court order as to its efforts to search Hillary's original server for records. The Court, at the request of Judicial Watch, has expedited a status conference originally scheduled for September 10, to August 19:
    MINUTE ORDER. In light of the State Department's August 14, 2015 Status Report and Judicial Watch's August 17, 2015 reply thereto, a status hearing will be held on Thursday, August 20, 2015 at 12:00 p.m. in Courtroom 24A. The State Department shall file a reply to Judicial Watch's August 17, 2015 response no later than 12:00 p.m. on August 19, 2015. Signed by Judge Emmet G. Sullivan on August 17, 2015. (lcegs4) (Entered: 08/17/2015)
    In its papers , Judicial Watch says it intends to seek discovery, which normally does not take place in FOIA cases, because of the State Department's non-compliance. (Full embed of Judicial Watch request at bottom of post.) While Judicial Watch has not specified what discovery it seeks to take, "discovery" can include depositions, which are sworn testimony on the record. Other forms of discovery would appear inadequate given the history of the case. Given the players involved, discovery logically would include Hillary, Abedin, and Cheryl Mills, not to mention Hillary's attorney David Kendall as custodian of at least some records. Judicial Watch provided the following statement in response to our inquiry:
    “We believe that discovery is now the only way to receive the necessary information, wherever that may lead.”

    Background - How We Got Here

    On Friday,  August 14, 2015, we covered the State Department's Court-ordered Status Report in That court order came after the Court ordered Hillary, Abedin and Cheryl Mills not to destroy records, and other court proceedings as to whether all electronic devices had been searched for records.

    In 2012, Mark Levin's Landmark Legal Foundation filed a FOIA request with the EPA in an attempt to discover if senior agency officials were postponing the implementation of key (read: controversial and politically-damaging) regulations until after the 2012 presidential elections. As soon as that FOIA request was received by the EPA, the agency was bound to preserve any and all documentation covered by the request. What happened next was predictable, and not at all out of character for an Obama agency. After months of hoop-jumping that extended beyond Election Day 2012, Landmark finally went to court and asked a judge to levy sanctions against the EPA for failing to comply with the request. Now, more than thirty months after Landmark's initial request was submitted, a court has thrown the hammer down on the EPA's lazy and borderline unethical FOIA fulfillment standards. Judge Royce C. Lamberth didn't grant Landmark the sanctions it asked for in its lawsuit against the EPA, but she did bestow 25 pages worth of condemnation upon the heads of current and former EPA officials. From the ruling:
    Two possible explanations exist for EPA's conduct following Landmark Legal Foundations' filing of a Freedom of Information Act ("FOIA") request in August 2012. Either EPA intentionally sought to evade Landmark's lawful FOIA request so the agency could destroy responsive documents, or EPA demonstrated apathy and carelessness toward Landmark's request. Either scenario reflects poorly upon EPA and surely serves to diminish the public's trust in the agency.

    For those of you who are new to the blog, or who have not been paying attention, Legal Insurrection filed a FOIA suit against the District of Columbia seeking records related to the non-prosecution of David Gregory and NBC News despite their clear violation of D.C.'s gun law by possessing a 30-round ammunition magazine. We are represented by Judicial Watch, which has done a wonderful job. It's a real credit to them that they work hard to dig out the truth not only on big issues like IRS targeting, but also smaller issues like how draconian D.C. gun laws are not enforced against the famous and connected D.C. elites. In the Gregory case, NBC News was warned by the D.C. Metropolitan Police Department that possession of the magazine was illegal, and that NBC News should use a photo not the real thing, but NBC News ignored the warning and used it on Meet the Press. Gregory OAG Email Dec 21 2012 NBC to MPD4 Legal Insurrection was one of the first to note the violation of law, and we pursued the story in a long series of posts. Despite the clear violation of law, the D.C. Attorney General, Irvin Nathan, decided not to prosecute Gregory or any NBC News personnel.
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