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

Case 1:12-cv-02034-RBW Document 28 Filed 09/09/15 Page 1 of 10
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.
DEFENDANTS OBJECTIONS TO PLAINTIFFS

PROPOSED PRESERVATION ORDER
Pursuant to the Courts Order dated September 3, 2015, Defendant Department of
State (Department) hereby responds to Plaintiffs 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).
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.
In support of its objections to Plaintiffs 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.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, but are not limited to: the 31,380 reportedly
withheld hdr22@clintonemail.com records; any emails associated
with Huma Abedins clintonemail.com account; and any other emails or
documents of any other current or former government employee or official
during the relevant time period.
Plaintiffs proposed preservation order is overbroad and unnecessary, and, as written, the
Court lacks jurisdiction to enter it.
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 Plaintiffs 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 hdr22@clintonemail.com
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 Departments possession,
custody or control to be subject to the FOIA. Kissinger, 445 U.S. at 150-51, 155; see also
Natl Sec. Archive v. Archivist of the U.S., 909 F.2d 541, 545 (D.C. Cir. 1990)([T]he
The State Department does not know the exact number of withheld documents, and Plaintiff has
provided no evidentiary support for this number.
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 employees 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
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, Plaintiffs
3
http://www.archives.gov/records-mgmt/bulletins/2014/2014-06.html
In October, 2104, the Department further clarified this guidance. (attached as Ex. 2).
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 Secretarys production was over-inclusive, not
under-inclusive. The Departments 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, Plaintiffs 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
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 Departments
recordkeeping system. (attached as Ex. 5).
b. In December 2014, former Secretary Clintons 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
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. 13cv-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 plaintiffs 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
8
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 Departments possession.
d. Third paragraph, first sentence: the Defendants shall take all reasonable
steps to determine whether copies of clintonemail.com documents and data from 20092013 (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
9
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 Watchs proposed preservation order in its entirety. To the extent the
Court wants specific assurances regarding the preservation of federal records in the
Departments 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 Edney
Marsha 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
Marsha.edney@usdoj.gov
Counsel for Defendant
10
Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 1 of 64
Exhibit 1

UNCLASSIFIED (U)
U.S. Department of State Foreign Affairs Manual Volume 5
Information Management
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 some
text in this section. This subchapter will be revised to reflect the new guidance Refer
to 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 records
systems that produce, use, or store data files, shall incorporate disposition
instructions 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 store
data 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 the
equivalent 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 housekeeping
functions and contain information derived from hard copy records
authorized for disposal may be deleted if the hard copy records are
maintained in official files.
(4) Data in electronic form that is not preserved in official hard copy files or
UNCLASSIFIED (U)
5 FAM 440 Page 1 of 8

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 through
authorities 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 to
retrieve, 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 documents
shall 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 the
official 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 longer
needed 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 deleted
in 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 courts
must believe that records admitted before it are trustworthy that is, they
must clearly and accurately relate the facts as originally presented or in
summary form.
e. Administrators of electronic records systems shall ensure that only authorized
personnel have access to electronic records.
UNCLASSIFIED (U)

UNCLASSIFIED (U)
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. These
requirements 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 documentation
and 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 records
disposition 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 national
security information. Magnetic recording media are not to be reused if the
previously recorded information can be compromised in any way. Refer to
12 FAM for requirements regarding the security of magnetic media.
j. All automated information systems (AIS) or facsimile machines used to process
or 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 the
same 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 properly
documenting 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
UNCLASSIFIED (U)

UNCLASSIFIED (U)
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 facsimile

transmission 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 of
facsimiles 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 DS1890-A, Classified Facsimile Transmittal Cover Sheet, are Department forms
that are available for use in transmitting documents. Their use is not
mandatory. These forms are available on the INFOFORMS disk, which is part of
the Departments 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 & fax
telephone 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 with
related 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
UNCLASSIFIED (U)

UNCLASSIFIED (U)
preserve records containing adequate and proper documentation of the

organization, functions, policies, decisions, procedures, and essential
transactions 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 Departments information modernization program goes forward, new
forms of electronic communications have become increasingly available within
the Department and between the Department and overseas posts. One
example of the improvements that modernization has brought is the automatic
electronic preservation of departmental telegrams. Employees are reminded
that under current policy departmental telegrams should be used to convey
policy 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. Employees
are 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-mail
messages must be preserved as Federal records and which may be deleted
without 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 the
Federal 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 connection
with public business; and
are preserved or are appropriate for preservation as evidence of the
organization, 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 for
preservation In making these decisions, all personnel should exercise the
same judgment they use when determining whether to retain and file paper
UNCLASSIFIED (U)

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 policies
and 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 Governments
actions.
d. For example, just like paper records, E-mail messages that may constitute
Federal records include:
(1) E-mail providing key substantive comments on a draft action
memorandum, if the E-mail message adds to a proper understanding of
the formulation or execution of Department action;
(2) E-mail providing documentation of significant Department decisions and
commitments 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 response
to 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-mail
message, 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 users
consider it necessary for adequately documenting Department activities. If
transmission 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 warranting
preservation as records (for periods longer than current E-mail systems routinely
maintain them) must be printed out and filed with related records. Instructions for
UNCLASSIFIED (U)

UNCLASSIFIED (U)
printing and handling of Federal records for most of the Departments existing Email systems have been prepared and will be available through bureau Executive
Offices
5 FAM 443.4 Records Management Reviews

(TL:IM-19;
10-30-1995)
The Departments Records Management Office (OIS/RA/RD) conducts periodic

reviews of the records management practices both at headquarters and at
overseas posts. These reviews ensure proper records creation, maintenance, and
disposition by the Department. These periodic reviews now will include monitoring
of the implementation of the Departments 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 of
privacy 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 printed
copy.
File the printed messages and essential transmission and receipt data with
related 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, the
Privacy 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 the
proper classification identified on each document.
When E-mail is retained as a record, the periods of its retention is governed by
records 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
UNCLASSIFIED (U)

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 National
Archives and Records Administration.
c. The Department and all posts are requested to bring these regulations to the
attention of all Department employees and contractors and to begin its
implementation immediately.
5 FAM 444 THROUGH 449 UNASSIGNED
UNCLASSIFIED (U)
Exhibit 2

CLASSIFICATION: UNCLASSIFIED
Page 1 of 5
UNCLASSIFIED
MRN:
Date/DTG:
From:
Action:
E.O.:
TAGS:
Subject:
14 STATE 111506
Sep 15, 2014 / 152109Z SEP 14
SECSTATE WASHDC
ALL DIPLOMATIC AND CONSULAR POSTS COLLECTIVE IMMEDIATE
13526
AINF
MESSAGE FROM UNDER SECRETARY KENNEDY TO CHIEFS OF MISSION
1. Chiefs of Mission (COMs) are responsible for creating records necessary to

document their activities and for the proper management and preservation of their
records. These responsibilities are applicable to all records made or received in
the conduct of agency business regardless of physical format or media. While all
Department employees are to preserve records meeting the definition of a record
under 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 documents
archived at the National Archives and Records Administration (NARA). Proper
records management ensures statutory and regulatory compliance, preserves the
rights of the government and citizens, supports better decision making,
safeguards vital records, preserves organizational memory, minimizes litigation
risk (ensuring systematic, documented, and routine disposal of records), and
reduces operating costs through control over the lifecycle of the records.
2. Specifically, COMs must create records necessary to document their activities
and actions taken on behalf of the Department. A records custodian must be
identified who can manage a particular COMs records in support of proper records
lifecycle management, including appropriate access. Departing or transferring
COMs must identify their records prior to departure or transfer. Departing COMs
are reminded they may take with them only personal papers and non-record
materials, subject to review by records officers to ensure compliance with
federal records laws and regulations. All records generated by senior officials
belong to the Department of State.
3. Defining and Managing Records - Records may exist in many formats, including
Instant Messages (IM) and records on mobile devices like BlackBerrys, mobile
phones, and iPads. Typical records created by COMs include not only e-mails,
memos, and similar documents, but also calendars, schedules, and logs of daily
activities. Additionally, senior official records should include the following:
Records pertaining to various committees, including Federal Advisory

Boards, councils, and inter-agency and external committees in which
Page 1 of 5

Page 2 of 5
the senior official participated.

Materials relating to internal and external meetings, including
briefing documents, minutes, and meeting notes.
Records documenting the development of Department policies and
programs, including correspondence, briefing and issue papers, and
reports 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, at

minimum, take the following steps:
Designate a records manager responsible for their records.

Follow established records disposition schedules, which set out the
applicable records retention and disposition requirements.
Establish a plan for maintaining and managing their records.
Collect, organize, and categorize their records in order to facilitate their

preservation, retrieval, use, and disposition.
4. Specific Email Requirements and Procedures - E-mail is the most widely-used
tool within the Department for the conduct of official business. The Department
generates millions of e-mail communications each year, many of which document
significant foreign policy and Department business decisions. The standard for
determining whether an e-mail message meets the definition of a record under
the Federal Records Act is the same standard that applies to all other types of
Department records (5 FAM 443.2). As a supplement to existing policy, and
consistent with the policy in place since 2009, it is important to capture
electronically the e-mail accounts of COMs as they depart their
positions. Instructions for senior officials are provided at the end of this
message.
At no time during designated COMs tenure will their e-mail accounts

be cleared, deleted, or wiped for any reason.
While COMs may delete personal e-mails, they should be aware that the
definition of a personal e-mail is very narrow. The only e-mails that
are personal are those that do not relate to or affect the
transaction 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 email account for the conduct of official business, she or he must
ensure that records pertaining to official business that are sent
from or received on such e-mail account are captured and
maintained. The best way to ensure this is to forward incoming emails received on a private account to the COMs State account and
copy outgoing messages to their State account.
Page 2 of 5

Page 3 of 5
5. Visit the Departments 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 the
departure of designated Senior Officials and direct the system
administrators to replicate the Officials remaining email onto CDs
according to the following directions. If possible ask departing
Officials to delete truly personal emails (to/from family, friends, and
other non-work related emails) from their inbox, sent mail and PST.
folders.
b. Note, preceding the Senior Officials departure, at no time during their

tenure in a position will their email account be deleted, cleared, or
wiped for any reason. If, for instance, they reach their maximum allotted
space in their mailbox, the Executive Director, Post Management Officer,
and the system administrator will work constructively with the Senior
Official to move older emails into stable and secure storage until the
check-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 PACE
email accounts of departing Officials.
e. System administrators DO hide (but not remove) names of departing Officials

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

g. Executive Directors, Office Directors or equivalent (Domestic Offices) or
Management Counselors/Officers (Posts) must provide A/GIS/IPS/RA (by
OpenNet mail to Records-DL@state.gov) with (a) the name of departed
officials, (b) the designated Bureau/Post Records Management Coordinator,
and (c) the Bureau/Post System Administrator. After the information is
copied 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, POEMS
and PACE email account of departed Officials. One set must be created for
retirement, using the form DS-693, to A/GIS/IPS/RA for records
preservation; the other is for Bureau/Post use, if required. See the How
to Retire Records page of the DOS Records Management intranet site for
further 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:

Page 3 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 the
capacity of one CD, use: Smith_ John H_MB1 for the first .PST
created by the system administrator and Smith_ John H_MB2 for
the second .PST created by the system administrator,
etc. (System administrators can decide where/how to split the
content among multiple CDs.)
iii. For existing (user created) .PSTs, aka personal
folders, (this is a misnomer used by Microsoft since the
content is official, not personal), use the user name
followed by _PF i.e. Smith, John H_PF . If the existing
PSTs exceed the capacity of one CD, or there are multiple
.PSTs, use Smith, John H_PF1 for the first .PST, Smith, John
H_PF2 for the second .PST, etc. (System administrators can
decide 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 accordance
with 12 FAM 5400). CDs from ClassNet must be market "Secret"
(12 FAM 632.1-6).
ii. CDs must be marked with the users name and office
symbol or Post (example: John H. Doe, IRM/OPS/MSO).
iii. CDs must be marked with the users SMTP address (example
jdoe@state.gov or jdoe@state.sgov.gov).
iv. In the event .PST exceeds one CD, the CDs must include
X of Y (example, 1 of 3.)
k. Distributed System Administrator roles:

i. IRM will handle CD production for email accounts of
users under IT Desktop Consolidation.
ii. Bureau/Office system administrators will handle CD
production for email accounts that are NOT managed under IT
Desktop Consolidation.
iii. Post system administrators should handle CD production
for their email accounts.
iv. IRMs IT Service Center ( IT Service Center@State.gov
or (202) 647-2000) will be available to assist Post and Bureau
system administrators with technical support for the .PST and
CD creation process.
l. System administrators must NOT delete the source mailbox or .PST files
until after receipt of an email confirmation from A/GIS/IPS/RA and
authorization to delete.
m.
Technical questions relating to the CD creation can be sent to the IT

Service Center on OpenNet at ITServiceCenter@state.gov or on ClassNet to
Page 4 of 5

Page 5 of 5
ITServiceCenter@state.sgov.gov or by calling 202-647-2000. Other
questions can be sent to A/GIS/IPS/RA on OpenNet at records-dl@state.gov
or on ClassNet at records-dl@state.sgov.gov .
n. NOTE: Transferring records through Direct Network Transfer is also an

available option for the emails of Senior Officials.
please contact records@state.gov.
For assistance,
7. Minimize considered.
Signature:
Kerry
Drafted By:
Cleared By:
Approved By:
Released By:
Info:
M/PRI::KIRKPATRICKKG
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
M: PKENNEDY
IRM_OPS_MSO:Kerns, Venod V
MINSK, AMEMBASSY IMMEDIATE
Dissemination Rule:
Archive Copy
UNCLASSIFIED
Page 5 of 5
Exhibit 3
Case
Case 1:12-cv-02034-RBW
1:13-cv-01363-EGS Document
Document 24-1
28-1 Filed
Filed 08/12/15
09/09/15 Page
Page 14
17 of
of 17
64
Case
Document 24-1
28-1 Filed
Filed 08/12/15
09/09/15 Page
Page 15
18 of
of 17
64
Exhibit 4
Case
Document 30-1
28-1 Filed
Filed 08/25/15
09/09/15 Page
Page 55
20 of
of 57
64
125 TWELFTH STREET, N.W.

DAVII> E. Kl:lAlL
WA5HINCTOlt D.
(202) 4345~4!)
di;~n<WlOW"eolU
c.
200055901
____ 1tD Ml'INlTT'
W(U.'AM~
PAVL "- GIONNQU...Y
(1030.10
(1B1~a-I.1'&)
(202) 434.-5000
fAX (202) .434-5029
August 21,2015
BY ELI!~CTRONIC MAn~
The Honorable Patrick F. Kennedy

Under Secretary of State for Management
U.S. Department of State
2201 C Street NW
Dear Under Secretary Kennedy:
I write as personal counsel to former Secretary Clinton in regard to Judicial
Watch, Inc. v. U.S. Department ofSlate, 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
Clintont 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 ~mails 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, S~(J 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 that provision, referring
to e-mail messages on "8 system not operated by the agency" (instead of"extemal
electronic email systems"), the policy remain~ the same: when "[a1genoies .. allow
employees to send and receive official electronic mail messagc5 using a system not
opcmted by the agency," such agency <'must ensure that Federal records sent or received
on such systems are preserved in the appropriate agency recordkeeping system.' 36
C.F.R. t236.22(b) (2010).
Case
Document 30-1
28-1 Filed
Filed 08/25/15
09/09/15 Page
Page 56
21 of
of 57
64
- - - _.._.-.-.,
WILliAMS
CONNOLLY LLP

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~ority of Secretary Clinton's work-related e-mails), contemporaneously
forwarding e-mails from non-government parties to Department officials on their
state.gov ~-mail 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 emails when supplementation ofthe Department's recorth was requested. I Through these
practices, she preserved ber work related e-mails in the Department's c-mail systems so
that they were available to the Department of State.
w
Indeed~ in October 2014~ 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 workrelated 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 those 30~490 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, we anticipate that many
ofthosc personal e-mails fall within the category orthe approximately 10% of the set
provided to State that was not contemporaneously on the state.gov system (and had no
r~son 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. As NARA has recently recognized
with regard to the role offederal employees in e~mail 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 is now 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 the officer or employee in the
original creation or transmission of the 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."
Case
Document 30-1
28-1 Filed
Filed 08/25/15
09/09/15 Page
Page 57
22 of
of 57
64
WILUAMS &; CONNOllY LLP

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 preserv~tion" 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, S 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 those 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 clear~ 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. In glving assistance to the
Department to ensure its records were complete~ Secretary Clinton took an inclusive
approach, providing all e-mails that were workrelated 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 ~mai1s.
We hope that this letter will be of assistanc~ to the Department in connection with
the Judicial Watch lawsuit and other, similar lawsuits.
ly,
//
/J /?/
f~
Exhibit 5
Case
Case1:12-cv-02034-RBW
Document 28-1
18-1 Filed
Filed 09/09/15
08/06/15 Page
Page 24
1 ofof20
64
UN DER S E CRETARY OF STATE

FOR MANAGEMENT
W A S HINGTON
tiOV 1 2
2014
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 other 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, 31
and 33, seeks to ensure the preservation of an authoritative record of official
correspondence, communications, and documentation. Last year, in Bulletin 201303, the National Arch ives and Records Admi nistration (NARA) clarified records
management responsibilities regarding the use of personal email accounts for
official government business. NARA recommended that agencies refer to its
guidance when advising incoming 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 t ime has passed since your principal
served as Secretary of State and that the NARA guidance post-dates that service.
Nevertheless, we bring 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 available 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,
Case
Document 28-1
18-1 Filed
Filed 09/09/15
08/06/15 Page
Page 25
2 ofof20
64
-2-
Secretary of State records retained permanently. We ask 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,
~~nnedy
Exhibit 6
Case
Document 28-1
18-1 Filed
Filed 09/09/15
08/06/15 Page
Page 27
3 ofof20
64
cdmiUsGroup
endeavors that moffer
VIA HAND DELI VERY

Under Secretary of State for Management
U.S. Department of State
2201 C Street, N.W.
December 5, 2014
Dear Under Secretary Kennedy:
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
practic~ to use the officials' government electronic mail accounts.
Accordingly, to the extent the Department retains records of government
electronic mail accounts, it already has records of her electronic mail
during 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 materials inevitably
include electronic mail that are not federal, and in some cases are
personal, records which we request be handled accordingly.
Sincerely,
Cheryl Mills
Exhibit 7

1
2
3
4
5
6
7
8
9
10
11
12
13
IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
) Civil Action
) No. 15-688 (RC)
Plaintiff,
)
) STATUS CONFERENCE
vs.
)
) Washington, DC
) Date: July 9, 2015
) Time: 10:01 a.m.
Defendant.
)
___________________________________________________________
TRANSCRIPT OF STATUS CONFERENCE
HELD BEFORE
THE HONORABLE JUDGE RUDOLPH CONTRERAS
UNITED STATES DISTRICT JUDGE
____________________________________________________________
A P P E A R A N C E S
For the Plaintiff:
Chris Fedeli, Esq.

Judicial Watch
425 Third Street, SW, Suite 800
202-646-5172
For the Defendant:
Daniel Riess, Esq.

Elizabeth Shapiro, Esq.
US Department of Justice
Civil Division
20 Massachusetts Avenue, NW
202-353-3098
Also Present:
Tom Fitton, Judicial Watch

Paul Orfanedes
14
15
16
17
18
19
20
21
22
23
24
25
Proceedings reported by machine shorthand, transcript

produced by computer-aided transcription.
____________________________________________________________
Court Reporter:
Annette M. Montalvo, CSR, RDR, CRR
Official Court Reporter
United States Courthouse, Room 6722
333 Constitution Avenue, NW
202-354-3111

1
2
(WHEREUPON, commencing at 10:01 a.m., the

following proceedings were had in open court, to wit:)
3
4
THE COURTROOM DEPUTY:
Counsel, please step forward to the podium and

state your appearance for the record.
7
8
Civil Action 15-688.
Judicial Watch Inc. v. US Department of State.
5
6
MR. FEDELI:
Good morning, Your Honor.
Chris
Fedeli for plaintiff Judicial Watch.
THE COURT:
Good morning.
10
MR. RIESS:
Good morning, Your Honor.
11
Daniel
Riess for the defendant.
12
THE COURT:
Good morning.
13
All right.
I got a status report in which the
14
parties took very differing positions, so let's talk about
15
the various issues.
16
17
Who wants to go first?
You want to go first since it is your FOIA

request?
18
MR. FEDELI:
Yes, Your Honor.
19
So what I would like to talk about is three of the
20
four questions I posed to defense counsel were about
21
preservation of records, the fourth being about search
22
terms.
23
Now, ordinarily, in a FOIA case, I never ask
24
opposing counsel if they are preserving records, but there
25
are very unusual facts underlying this FOIA case.
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.
to provide those assurances so I wanted to make the Court
aware that we have concerns about preservations.
they are reasonable concerns, given what's gone on and
what's been reported about how documents were managed by the
State Department.
very likely to include high-level discussions about
Opposing counsel was unwilling
We think
And we feel that the records we seek are
10
conflicts between the Secretary and the Clinton Foundation.
11
They may be the records which have been reported to have
12
been kept off-site and managed in unusual ways.
13
it is reasonable to ask for those assurances and to get
14
assurances the records are being preserved.
15
So we think
And the preservation requirements here we believe
16
are also a little bit unusual.
17
you send out a memo saying, "Please, nobody delete
18
anything."
19
be required for defendant to make assurances that all
20
records are being preserved.
21
outlined in the questions I posed.
22
Ordinarily, preservation is
In this case, I think active steps are going to
THE COURT:
Okay.
And those active steps I've
Now, with respect to whatever
23
areas, if any, the parties may be in agreement on, is there
24
anything about the government's proposal that you think you
25
can live with?

1
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.
filing in another case involving the State Department and
Judicial Watch, another FOIA case, that defendant has taken
We do understand as of two days ago in a
10
the steps of contacting former officials, three former
11
officials --
12
THE COURT:
13
MR. FEDELI:
Which case was that?

I have it right here.
14
before Judge Lamberth.
15
would like me to grab that.
16
THE COURT:
17
MR. FEDELI:
18
It was a case
And I have the case number, if you
I would.
This is Case No. 14-1242.
And in
that filing on July 7 --
19
THE COURT:
20
MR. FEDELI:
21
THE COURT:
22
MR. FEDELI:
Are you the party in that case?

Judicial Watch is the party, yes.
Okay.
And in that filing, the State
23
Department attached a declaration indicating they have
24
already sent letters to former State Department officials,
25
Ms. Mills, Mr. Sullivan, and Ms. Abedin, who were reported
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.
responsive to the FOIA request in that case.
And one of those was
So apparently defendant agrees with me, at least
to an extent, that there are unusual steps necessary here
for preservation.
you would not pick up the phone and start calling former
employees and saying "Can you please bring back those
Ordinarily, when you get a FOIA request,
10
documents."
11
include steps such as those.
12
13
14
Here, we think the duty of preservation would
THE COURT:
government.
Okay.
Let me hear from the
Thank you.
Before you get started, at the beginning of the
15
Leopold case, in which I am on as well and which you cited
16
in the status report, I asked the government whether the
17
government -- because there's a number of these cases out
18
there now, whether the government plans to do anything to
19
consolidate these because it doesn't make a lot of sense for
20
six different judges to be ordering six different things, to
21
a certain extent.
22
Has the government given that any thought?
23
MR. RIESS:
24
25
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
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.
thought.
So give that some
MR. RIESS:
I understand, Your Honor.
We will.
THE COURT:
All right.
MR. RIESS:
Just briefly, with respect to the
10
questions, there are a number of questions -- as Your Honor
11
mentioned, there are about, I believe, 35 cases at last
12
count, mostly against the State Department, that are seeking
13
records related to the former Secretary Clinton's e-mails.
14
At least 8 to 10 of them are brought by Judicial Watch as a
15
plaintiff.
16
are propounding questions.
17
And in each one of those, at least 8 to 10, they
And so the position we have is that we don't want
18
to set a precedent.
19
responsive records and provide them to the requester, not to
20
go beyond that and respond to what is, in effect,
21
interrogatories.
22
THE COURT:
The purpose of FOIA is to search for
Questions about preservation are not
23
interrogatories, are they?
Isn't that the normal meet and
24
confer requirement that every party takes at the beginning
25
of a case?

1
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.
proceed that the requester asks for records, we conduct the
search and process the documents and provide them.
THE COURT:
I have seen it typically
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?
10
11
MR. RIESS:
that, yes, Your Honor.
12
13
I think that it could be construed as
THE COURT:
So there's some duty to preserve, you
have to concede that, don't you?
14
MR. RIESS:
Yes.
I think, though, in this
15
instance, since we are talking about at least in this case a
16
relatively quick turn over, and in the Leopold case we are
17
talking about production on a rolling basis until January
18
29, I don't think there's a realistic expectation that
19
people are going to go out and destroy records between now
20
and then.
21
Clinton e-mails, we've -- my client has said they can
22
perform the search by mid August.
23
just they don't know the number -- the volume of responsive
24
documents, and they have asked for a little bit of leeway,
25
depending on how many documents it turns out not related to
And as to the extent of this that's not seeking
And the only question is

1
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.
to former employees to secure official documents?
In that case, the government reached out
MR. RIESS:
Yes, I believe that's right.
They
filed a summary judgment motion in No. 14-1242 on July 7, I
believe.
stage.
10
So that case was actually at a more advanced
THE COURT:
So the representations about who
11
was -- former employees that were reached out to was in the
12
context of declarations for summary judgment?
13
MR. RIESS:
I believe that's correct, Your Honor.
14
THE COURT:
All right.
15
Have any efforts in this
case been made to reach out to former employees?
16
MR. RIESS:
No.
17
THE COURT:
Okay.
Not in this case, Your Honor.

With respect to the 55,000 or
18
so Clinton e-mails, I gather from in Leopold, those
19
documents were digitized and searchable?
20
correct?
21
22
MR. RIESS:
Your Honor.
Is my recollection
To be honest, I don't know,
I can find out.
23
THE COURT:
Okay.
24
MR. RIESS:
I would assume that since its rolling
25
production and with that larger volume --

1
THE COURT:
MS. SHAPIRO:
Hold on.
Sorry.
I am sorry to jump in,
Your Honor.
THE COURT:
Not at all.
That's why I wish there
would be more coordination.
convenient to refer to other cases, it is done, but when it
is not, it is not done.
answers.
9
10
11
12
13
MS. SHAPIRO:
It seems like when it is
So, you know, I would like to get
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 supervising all of the Clinton
e-mails cases?
MS. SHAPIRO:
Not all of them, but one of two,
14
that would be -- and I think we do have a bird's-eye view of
15
all of them.
16
stages and in various forms, and we have carefully thought
17
about consolidating.
18
they would be consolidated, and since some of them are
19
different claims, there are different parties, there are
20
different stages.
21
to date, but we haven't given up on the idea.
And there are approximately 35 at various
There are difficulties in terms of how
So the mechanics of that have eluded us
22
With respect to the reaching out to the third
23
parties, I think, here, we didn't view Judicial Watch's
24
questions about preservation.
25
the third parties was not done in any specific case.
I think the reaching out to

It was
10
done as a matter of choice that the State Department decided
that it should and did, irrespective of any litigation,
reach out to these people.
They are differently situated than the Hillary
Clinton situation because they all maintain state.gov
e-mails and used those e-mail accounts.
the nature of ordinary government employees that have
government e-mail accounts that are searched.
However, because --
10
11
So they are more in
THE COURT:
To your knowledge, did any of those
individuals use Clinton e-mail servers?
12
MS. SHAPIRO:
13
THE COURT:
Yes.
And because of that --
I am not saying not in sending things
14
to that server, but used it as their platform for sending
15
their own e-mails?
16
17
MS. SHAPIRO:
Separate and apart from
communicating with --
18
THE COURT:
Correct.
19
MS. SHAPIRO:
I am not positive of the answer to
20
that.
21
Hillary Clinton e-mails and in using that server the State
22
Department reached out to them and have received documents
23
back from two of them.
24
25
But because we know that they do appear in the
And those are now in the State Department's

possession, and will be searched like the Hillary Clinton

1
e-mails are being searched.
all the cases, not in any particular case, where
documents -- it would be reasonable to think that documents
would be found among that collection.
THE COURT:
MS. SHAPIRO:
But that will be done across
Uh-huh.
Okay.
And with respect to the summary
judgment motion that was filed, that case related to one of
the Benghazi related requests, and all the searches have
been done for all of the e-mails that are in the possession
10
of the State Department now, including the ones that were
11
recently received from the two additional employees.
12
THE COURT:
11
Okay.
With respect to the 55,000 or
13
so Hillary Clinton e-mails that she provided from her
14
server, is my recollection correct that those were digitized
15
and are searchable?
16
MS. SHAPIRO:
Yes, they were digitized as of
17
approximately mid June, and they are searchable, and are
18
being searched and reviewed in response to your order in the
19
other case that --
20
THE COURT:
Leopold.
21
MS. SHAPIRO:
22
THE COURT:
-- right, that captures all 55,000.
So given that these are separate cases
23
and they are not being consolidated, and given that it is
24
this case, this case here today, is a relatively narrow
25
case, why is the State Department reluctant to make a search

1
for the Foundation conflict documents, which sounds like a
relatively straightforward process?
MS. SHAPIRO:
One, it is not clear that it is a
relatively straightforward process about how to construct a
search that would be likely to capture those records and
then deal with whatever comes back, both in terms of
responsive records and nonresponsive records that are just
caught up in the search.
process.
10
12
So that is a time-consuming
And the resources of the State Department right
11
now are so taxed that any sort of side search for a sort of,
12
you know, even discrete, would take resources away from what
13
is an extremely burdensome but also very taxing process
14
right now to the department.
15
person's time or two people's time in order to process
16
another request, it disrupts the entire chain of the way
17
these e-mails are being moved from station to station in
18
response to Your Honor's other order.
19
as Mr. Riess mentioned, with the number of cases both being
20
brought by Judicial Watch and others where the argument is
21
this a discrete search, you then have 8, 10, 15 discrete
22
searches, and to take each one of those and say that they
23
are discrete in isolation, it becomes no longer discrete and
24
would completely derail, I think, the process that -- where
25
that's really very little room for disruption in order to --
So to the extent that even one
And I just add that,

1
THE COURT:
My order in Leopold was based on
numbers and percentages.
that universe are produced in this case, they qualify for
the numbers in Leopold, don't they?
mutually exclusive from a resource standpoint, are they?
13
MS. SHAPIRO:
To the extent that documents from
So that they're not
No, that's right.
It is just that
the documents in the entire 55,000 collection are being done
systematically and not necessarily with respect to a
specific topic.
So here you would be doing a search for a
10
specific subject, gathering those and then taking the time
11
to process those sort of separately and deal with the
12
responsiveness issue, whereas if we continued to process in
13
order, Judicial Watch will have all of the records, and, you
14
know, not just the ones that may be responsive to these, but
15
also to the 8 to 10 to 12 other requests that they have in
16
litigation right now.
17
18
THE COURT:
Okay.
Are there any other points that
you want to cover?
19
MR. RIESS:
No, Your Honor.
20
THE COURT:
Okay.
21
MS. SHAPIRO:
22
THE COURT:
Thank you.
All right.
With respect to the
23
government's proposal about in Section B, focus on the
24
August 17 date, it sounds like the parties are more or less
25
in agreement on that, so we will go with that.
14

1
With respect to the 55,000 Clinton e-mails from
her server, I want the parties to meet and confer within the
next two weeks and try to agree on search terms, and then
file, to the extent you are in agreement or to the extent
you are not in agreement, file a joint status report at that
point with the court, and then I will decide at that point
what to do with that, but I will say my inclination is to
have a search done of the Clinton e-mail database that's
digitized and searchable for this relatively narrow, in my
10
view, relatively narrow request.
11
Is there any universe that's not covered yet that
12
you want the questions answered?
13
MR. FEDELI:
14
Well, if I may, Your Honor, I
think --
15
THE COURT:
16
MR. FEDELI:
July 23 is two weeks.

As far as the preservation issues, we
17
do think those are important.
Counsel suggested that the
18
Court can't really do anything about that without a motion.
19
We would be happy to file one.
20
THE COURT:
But if everyone files motions, August
21
17 will be here and that just adds more paper to it.
22
think August 17 is close enough that there's no point in a
23
lot of motions work.
24
25
MR. FEDELI:
Your Honor.
Do you agree with that?

Certainly understand that,
The concerns that we have about preservation do

1
remain outstanding for us.
THE COURT:
MR. FEDELI:
I'm sorry?
The concerns we have about
preservation, having not been really fully addressed yet,
remain outstanding for us.
THE COURT:
I understand that, and I am concerned
about that as well.
and August 17, the government will have to answer for that,
and, you know, if they don't want to do anything out of the
If documents are destroyed between now
10
ordinary to preserve between now and then, they can make
11
that choice.
12
they will answer for it, if something happens.
I will allow them to make that choice, but
13
MR. FEDELI:
Thank you, Your Honor.
14
THE COURT:
They are prudent people.
15
MS. SHAPIRO:
16
15
Sorry, just one note to the
preservation point.
17
THE COURT:
Sure.
18
MS. SHAPIRO:
Again, I don't think we construed
19
the questions that were asked as preservation related
20
questions.
21
preserve every record in its possession that relates to this
22
and all the other requests --
There's no question that the government will
23
THE COURT:
Now "possession" is probably a term of
24
art in this context.
25
possession, and does it also include custody or control?
What does the government consider its
16

1
2
MS. SHAPIRO:
again, they're legal terms.
THE COURT:
MS. SHAPIRO:
5
6
Well, custody and control are --
Sure.
The State Department will not be
destroying anything that relates to any of these cases.

With respect to individuals over which the State
Department has no control, because they are former
government employees --
THE COURT:
But to the extent that they have
10
official government records, what do you believe is the
11
State Department's duty?
12
13
MS. SHAPIRO:
The State Department has asked for
the return of those records.
14
THE COURT:
Okay.
15
MS. SHAPIRO:
And those individuals have that
16
correspondence, and anything that comes back to the
17
government, of course, will be preserved and maintained.
18
And, you know, we can put that assurance in an e-mail to the
19
plaintiffs, if that makes them more comfortable.
20
there should be no question that the government is
21
preserving records and satisfying its litigation obligation.
22
THE COURT:
I think
You know, I understand everyone's
23
position, and it is to state the obvious that this is not an
24
ordinary case, and everyone should be working to make sure
25
that whatever documents exist today remain in existence.
17
understand the government's position that discovery is
extraordinary in FOIA cases.
mystified that the government is not more forthcoming in
just answering questions that will help this case proceed on
a systematic basis, and on a basis that will allow everyone
to get the answers that will eventually help resolve these
cases, all 35 of them.
MS. SHAPIRO:
9
10
11
But I am a little bit
They are doing the best they can
under trying circumstances, Your Honor.

THE COURT:
Okay.
Is there anything else we need
to cover today?
12
MR. FEDELI:
13
MR. RIESS:
No, Your Honor.
14
THE COURT:
Okay.
15
(WHEREUPON, at 10:24 a.m. the proceedings were
16
17
18
19
20
21
22
23
24
25
concluded.)
No, Your Honor.
Thank you.

1
2
UNITED STATES DISTRICT COURT )

)
)
18
ss.
3
4
5
REPORTER'S CERTIFICATE
6
7
8
9
I, ANNETTE M. MONTALVO, do hereby certify that the

above and foregoing, consisting of the preceding 17 pages,
10
constitutes a true and accurate transcript of my
11
stenographic notes and is a full, true and complete
12
transcript of the proceedings to the best of my ability.
13
Dated this 9th day of July, 2015.
14
15
16
17
18
19
20
21
22
23
24
25
/s/Annette M. Montalvo________
Annette M. Montalvo, CSR, RDR, CRR
Official Court Reporter
United States Courthouse
333 Constitution Avenue, NW
Room 6722
202-354-3111
Exhibit 8
Case
Document28-1
22-1 Filed
Filed09/09/15
08/10/15 Page
Page48
1 of
of 164
Exhibit 9
Case
Document 28-1
24-1 Filed
Filed 09/09/15
08/12/15 Page
Page 50
2 ofof17
64
Case
Document 28-1
24-1 Filed
Filed 09/09/15
08/12/15 Page
Page 51
3 ofof17
64
Exhibit 10
Exhibit 11
UNITED STATES DISTRICT COURT

JUDICIAL WATCH, INC.
Plaintiff,
v.
Civil Action No. 1:12-cv-2034

(RBW)

Defendant.
[Proposed] ORDER
1. This FOIA request seeks 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.
2. The Department of State has produced 700 documents responsive to the
request. Since that production, the Department has received additional records from
former Secretary Clinton and other former employees that may require searching in order
to ensure a complete response to the FOIA request at issue in this case.
3. It is therefore ORDERED that the Department of State shall preserve all
records received from former Secretary Clinton and any other former employee
reasonably likely to have records responsive to this request, whether in paper or
electronic form.
Dated:
________________________________
Reggie B. Walton
United States District Judge

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

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

UNITED STATES DISTRICT COURT

Civil Action No. 1:12-cv-2034

U.S. DEPARTMENT OF STATE,

DEFENDANTS OBJECTIONS TO PLAINTIFFS

Case 1:12-cv-02034-RBW Document 28 Filed 09/09/15 Page 2 of 10

In support of its objections to Plaintiffs proposed preservation order, the

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

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

Case 1:12-cv-02034-RBW Document 28 Filed 09/09/15 Page 3 of 10

Case 1:12-cv-02034-RBW Document 28 Filed 09/09/15 Page 4 of 10

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

Case 1:12-cv-02034-RBW Document 28 Filed 09/09/15 Page 5 of 10

Case 1:12-cv-02034-RBW Document 28 Filed 09/09/15 Page 6 of 10

preservation argument reduces to an unsupported allegation that former Secretary Clinton

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

sanctioned State Department public service advertisement produced for audiences in

Case 1:12-cv-02034-RBW Document 28 Filed 09/09/15 Page 7 of 10

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

Case 1:12-cv-02034-RBW Document 28 Filed 09/09/15 Page 8 of 10

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

Case 1:12-cv-02034-RBW Document 28 Filed 09/09/15 Page 9 of 10

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

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

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

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 2 of 64

5 FAM 441 ELECTRONIC RECORDS MANAGEMENT

These requirements apply to all electronic records systems: microcomputers;

5 FAM 440 Page 1 of 8

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 3 of 64

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

5 FAM 440 Page 2 of 8

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 4 of 64

5 FAM 442 FACSIMILE RECORDS

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

5 FAM 440 Page 3 of 8

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 5 of 64

5 FAM 442.1 Facsimile Label

The Records Management Branch (OIS/RA/RD) has designed a facsimile

5 FAM 442.2 FAX Transmittal Forms

5 FAM 443 ELECTRONIC MAIL (E-MAIL)

5 FAM 440 Page 4 of 8

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 6 of 64

preserve records containing adequate and proper documentation of the

5 FAM 443.2 Which E-Mail Messages are Records

5 FAM 440 Page 5 of 8

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 7 of 64

U.S. Department of State Foreign Affairs Manual Volume 5

c. Under FRA regulations (36 CFR 1222.38), principal categories of materials,

5 FAM 443.3 How to Preserve E-Mail Records

5 FAM 440 Page 6 of 8

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 8 of 64

5 FAM 443.4 Records Management Reviews

The Departments Records Management Office (OIS/RA/RD) conducts periodic

5 FAM 443.5 Points to Remember About E-Mail

5 FAM 443.6 Future Technology

5 FAM 440 Page 7 of 8

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 9 of 64

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

5 FAM 444 THROUGH 449 UNASSIGNED

5 FAM 440 Page 8 of 8

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 10 of 64

Case 1:12-cv-02034-RBW Document 28-1 Filed 09/09/15 Page 11 of 64

1. Chiefs of Mission (COMs) are responsible for creating records necessary to