Line of mail boxes

Clinton Emails: FOIA is not the Federal Records Act

I’m still bugged by Judge Emmett Sullivan’s recent decision in one of Judicial Watch’s Freedom of Information Act (FOIA) lawsuits. He should never have allowed Judicial Watch to submit written questions to Clinton.

That she’ll respond with yet another reply of, “It was for convenience” is a given. That it’s also a waste of everyone’s time is also a given. More importantly, Sullivan had no justification allowing Judicial Watch to even ask the question. His decision was an abuse of judicial discretion.

There’s a great deal of confusion about what the FOIA really is, and does. It’s purpose is to increase government transparency. The mechanism for doing so is a FOIA request. There are rules related to how a request is answered, what material is exempt, timelines for response, etc. If you’re an organization like Judicial Watch, which makes a living related to its FOIA requests, you can also sue if the government doesn’t drop everything and respond immediately.

However, the FOIA is only related to a government’s search of existing records. It has nothing to do with ensuring that records are maintained.

Clinton Was Not Involved With the FOIA Request

The only justification for allowing depositions in a FOIA lawsuit is if the Judge believes the answering organization is attempting to thwart a FOIA request. The State Department has already established it didn’t initially search Clinton’s records in response to the original request, because it didn’t have access to those records. When Clinton turned her emails over, State voluntarily agreed to re-open the FOIA lawsuit and search the newly obtained emails.

The State Department is also searching the records recently discovered by the FBI. That it didn’t do so earlier is because the new records were either deleted as personal (or inconsequential), or are records pulled from other people’s email accounts. At no time did State attempt to hide the records, or deliberately thwart an attempt to recover the documents.

To establish that State was not thwarting the FOIA request, the only appropriate people who should have been deposed were those directly related to the FOIA search.

Hillary Clinton is not involved in the State Department’s FOIA search. She’s no longer a State Department employee. And from a FOIA perspective, it doesn’t matter, at all, why she used a personal email server. Not one bit.

Clinton Did Not Violate the Federal Records Act

Now, the storage of records is related to the Federal Records Act. Did Clinton violate the Federal Records Act? No, she didn’t.

She never removed records from the State, as the emails were never stored at State. She used a personal email account, but that’s not a violation of the Act. The only individuals forbidden in using a personal email account are the President and Vice-President and their immediate staff.

And she turned the records over to State as soon as she realized she was supposed to turn the records over to State.

Again, to emphasize the point, why she used a personal email address is irrelevant, even to the Federal Records Act.

It’s All About Optics

Clinton’s lawyers could have appealed Judge Sullivan’s decision, and I strongly suspect they would have won. Of course they didn’t because everyone would clamor, incessantly, about what does Clinton have to hide, why is she against transparency, and so on.

However, if Judge Sullivan had demanded that Clinton be deposed, than they would have appealed. Judge Sullivan likely knew this, which is why he limited Judicial Watch to written questions.

That Judge Sullivan took a less controversial approach to Judicial Watch’s request doesn’t alter the fact that the law has been abused in this case. Judicial Watch has not once in all of its depositions established that the State Department was deliberately attempting to thwart the FOIA request. There is no justification—none—for not denying Judicial Watch’s obviously politically-motivated request.

Judge Sullivan should never have granted Judicial Watch’s request. By doing so, he’s unnecessarily adding to State’s FOIA burden. And he’s arbitrarily inserting himself into this year’s Presidential election.

All of this is moot. State just filed a status update, stating that it has searched the new records and found nothing related to Judicial Watch’s FOIA request.

 

Gray wolf at rest

The Killing of the Profanity Peak Wolf Pack

By the time you read this, the Profanity Peak wolf pack in Washington State will be no more.

At last count, six wolves of the 11 member pack have been destroyed. All that remains is one adult and four cubs. And if the last remaining adult is killed, the cubs will most likely starve to death.

What’s left of the pack will either survive long enough to join another pack , or they won’t. Regardless, the Profanity Peak wolf pack is gone.

Washington State Proud

Washington State prides itself on not being the same as its neighbors to the east and north. It doesn’t immediately issue a shoot-to-kill order for endangered wolves when one head of cattle is killed or injured. No, Washington State has a Wolf Advisory Board. On this Board are wolf conservation groups, like Defenders of Wildlife, Humane Society of the United States, Conservation Northwest, and Wolf Haven International.

This Board has helped Washington State develop a protocol for when wolves are killed; a set of non-lethal actions that must be followed before the kill order is given.

The reality is, though, the wolves in the Profanity Peak pack are being killed. Just like the wolves are being killed in Idaho, Wyoming, Alaska, and other states. But we’re not supposed to feel outrage at such an action because Washington State has a Wolf Advisory Board, and it has guidelines.

The Animal Welfare Group Statement

Four of the animal welfare organizations on the Advisory Board issued a statement about the Profanity Peak wolves:

The authorized removal of wolves in the Profanity Peak wolf pack in northeast Washington is deeply regrettable. The Washington Department of Fish and Wildlife (WDFW) is however following the protocol developed by Washington State’s Wolf Advisory Group (WAG) – a diverse group of stakeholders. The WAG and WDFW have committed to evaluate how the protocol worked on the ground this season in order to improve it for next year. In addition, we intend to conduct a thorough and open-minded assessment of the issues raised for all stakeholders involved.

We remain steadfast that our important goals remain the long-term recovery and public acceptance of wolves in our state alongside thriving rural communities. In the meantime, we ask our community and the citizens of Washington State and beyond to engage in respectful and civil dialogue as we work through these challenging events. We believe that ultimately we can create conditions where everyone’s values are respected and the needs of wildlife, wildlife advocates, and rural communities are met.

The organizations don’t want us to be outraged. They want us to accept that, “Eh, these things happen.” They want us to treat the destruction of an entire pack of endangered wolves, as if it’s just another Sunday, and here’s a cookie. We’re to engage in a respectful and civil dialogue.

An entire pack of endangered wolves is being killed, and they want us to be respectful and civil?

OK, then. Let’s engage in a respectful and civil dialogue.

Grazing Permits and National Forests

The cattle are on public land in the Colville National Forest. They are on this land because the rancher has a grazing permit. His cattle join with approximately 32,000 or so other privately held cattle  allowed to graze on public land in Washington State. Graze at a taxpayer-subsidized rate—grazing permit holders don’t pay full value for the true cost of grazing on public land.

The rancher is Len McIver, of the Diamond M Ranch. He’s a multi-generation rancher who uses grazing permits to raise his cattle. You might say, since grazing permits are subsidized, he’s the fourth generation rancher benefiting from taxpayer support. A common term used for this type of rancher is “welfare rancher”.

Oh. I’m sorry. Was that not respectful? I’ll try to do better.

The Diamond M Ranch Connection

This isn’t the first time Len McIrvin has been involved in the destruction of a wolf pack. In 2012, it was his cattle that led to the decision to kill off the Wedge wolf pack, in the same area as the profanity Peak pack. In a 2012 interview, his son, Bill McIrvin, claimed that wolves are the worst predator:

Bill tells me that the first confirmed wolf kill on the Diamond M was in 2007, and probably from the same pack accused of livestock depredation now, the Wedge pack. When I ask about other predators, Bill says lots of predators go after their cattle, including black bear and cougar, although he is unable to tell me how many cattle succumb to these animals yearly. But wolves, he says, are the worse. Why? I ask. Because they are killing but not eating–for fun, not merely for food, he responds.

Wolves kill for fun. It’s an odd thing, but of all the reasons given why wolves kill, not one wolf expert has stated that wolves kill for fun.

One could say that Bill McIrvin is a lying sack of cow poop, if one wasn’t attempting to remain civil.

The Anti-Wolf Message

What’s interesting about Bill and Len McIrvin is how dedicated they’ve been about spreading the message that wolves are killers, wolves and cattle don’t mix, and how all wolves need to be killed. I contrast this with the assurances we’ve been given that any and all non-lethal measures were taken, first, by these same individuals before the decision was made to kill both Wedge pack in 20012, and the Profanity Peak pack this month.

I hope I won’t seem disrespectful if I happen to believe that two people passionate about removing wolves won’t do  everything in their power to ensure wolves can remain.

Evidently, the McIrvins do support some wolves. I’m not sure what the definition of some is. I mean, it isn’t as if people are tripping over the wolves on a daily basis in Washington state: there are less than 90 wolves now, and it’s a big state. Decrease the number of wolves much more, and you don’t have any wolves.

Contrary to the Washington Department of Fish & Wildlife diagram, wolf packs in Washington aren’t growing. In fact, they’ve shrunk by two. And I suspect the Ranchers McIrvin believe this is still too many.

graph of wolf packs in Washington

I also suspect that some wolves the McIrvins want, is more about geography than numbers. Some wolves are OK. Those wolves over there (and not here) are some wolves. Those wolves are OK.

Let’s Not Overly Impact the Ranchers

In 2012, Mitch Friedman from Conservation Northwest, discussed the McIrvin’s motives and processes.

Mitch Friedman, Conservation Northwest executive director, said he remains unconvinced about McIrvin’s efforts to manage his herd to reduce conflicts with wolves. He does not agree that there are no options for better herd management.

“We want to see more clarity, certainty, that wolves are responsible for these past incidences,” he said. “We’re aware there are experts raising questions and the field biologists are themselves not convinced that all, or perhaps even any, of these incidents are conclusively wolves.”

Friedman believes the state is under pressure and needs to take more time. He accused McIrvin of alerting the media first, then the local sheriff’s office, then the wildlife department while reaching out to county and state legislators to turn up the heat.

“Generally, when wolves are in the neighborhood, everything gets blamed on them,” he said. “But when the evidence is in, it’s a small portion of incidents that actually ends up involving wolves.”

If it’s not a wolf, Friedman isn’t certain what would be the cause. While he admitted to hemorrhaging on the rear flanks and groin in one of the recent calf attacks, there were no puncture wounds in the hide.

“We want to work collaboratively, we want to make this work so ranchers are not overly impacted by the presence of wolves,” he said.

How nice. Let’s ensure that the ranchers aren’t inconvenienced. That should be top priority for an animal welfare group.

By the way, this is the same Mitch Friedman who now exhorts us all to be respectful and civil about the killing of the Profanity Peak pack.

About Those Non-Lethal Measures

A couple of days after the decision to kill the Profanity Peak wolf pack was made, Robert Wielgus, of the Large Carnivore Lab at Washington State University, provided some surprising revelations.

“This livestock operator elected to put his livestock directly on top of their den site; we have pictures of cows swamping it, I just want people to know,” Wielgus said in an interview Thursday.

Evidently, the McIrvins deliberately introduced cattle directly into the den area for the Profanity Peak wolf pack.

The thing with cattle is they drive out most other animals in the area where they graze—they are inherently destructive of their surroundings. They decimate the plant life, damage the trees, churn up and damage the soil, and they muddy creeks and streams, as well as damage stream banks. Animals native to the land have no other choice but to leave.

Cause and effect: If all other prey animals are driven out, a wolf pack has little recourse but to hunt what animals remain. Though of course, they only do so for fun…not because they’re desperately trying to survive, and feed their young.

The Judas Wolves

The decision was made to kill the entire Profanity Peak wolf pack. All 6 adults and 5 cubs.

You know, wolves are hard to hunt. They’re intelligent and cunning. They know how to avoid hunters, even hunters using high-powered rifles from helicopters.

Helicopter and shooter

But the Profanity Peak pack was operating under a handicap: members of the pack were equipped with radio collars, allowing them to be tracked.

Such wolves are called “Judas wolves”, because their presence is a threat to the entire pack. I don’t know what’s more disturbing: that we allow hunting of a species that’s so rare, we actually equip them with tracking collars that cost thousands of dollars; or that wolves with such collars have been hunted so much, we actually have a term for them.

Thanks to the radio collars, the 11 member Profanity Peak pack is down to five remaining members. And the hunt still continues.

No, Washington State is Not “Better”

The wolf welfare organizations mentioned earlier have been receiving a great deal of heat in their Facebook posts related to the Profanity Peak pack.

If HSUS had a post with the Profanity Peak statement, it’s since removed it. But a post still remains in Conservation Northwest, Defenders of Wildlife, and Wolf Haven International.  In one comment to their post, Defenders of Wildlife stated:

Washington state has made it a requirement that ranchers use multiple nonlethal methods to deter wolves before the state will even consider a lethal option. Once a depredation has occurred, the state also steps in to help ramp up the nonlethal measures, with the goal of exhausting every possible nonlethal option. It is certainly not a perfect plan, but far better than the “shoot first” approach some other states have. As a member of the Wolf Advisory Group, we hope to continue to help revise the state’s protocols to better protect wolves. (emph. added)

The consensus among these groups is that, while its sad that the Profanity Peak pack is being killed, Washington State is still better than other states that have no advisory board. Animal welfare and conservation groups have a seat at the table. They have a hand in the decisions. This is better.

It’s an intellectual response to an emotional event…and it’s dead wrong.

We should be reacting emotionally to this event. We should be outraged. All those who support wolves should be speaking with one voice.

This isn’t a few animals killed among many: this is the deliberate extermination of 11 members of a group of 90, in the entire state. The number of wolves in Washington is so low, claiming they’ve recovered borders on the ludicrous. The State pontificates about “recovery” of the wolves, and how they’re no longer endangered, but we’re only talking about 90 wolves.

No. Now we’re only talking about 80. Well, unless those four cubs survive, which is doubtful.

Washington State allows 32,000 heads of cattle to graze on public land, and it won’t cut even a small break for the 90 wolves currently in its borders. It isn’t “better” than Idaho or Wyoming. Its process isn’t superior, or more humane. The only difference between the states, is optics.

Never Lose the Outrage

I had a strong scorched earth initial reaction to all of the animal welfare groups that issued such a passive, capitulating statement about the Profanity Peak wolves. I think there were some feelings of sowing salt into the ground at their feet, too.

I am calm enough today to know that ripping these organizations to shreds, while momentarily satisfying, doesn’t really address the problem. The problem is that our government doesn’t value us.

They value ranchers. They value farmers. They value hunters. They value people with guns. But they don’t value people who care about the animals just because the animals exist. In the great scheme of things, we’re expendable.  And so are the wolves.

Six cattle were supposedly killed and that’s enough to wipe out an entire wolf pack. By all that’s sane, this isn’t equitable, balanced, decent, humane, or right. Washington State, for all of its high mindedness, is no better than Idaho or Alaska or any other state that advocates killing off wolves so ranchers, hunters, and farmers aren’t inconvenienced. Let’s lose this feel-good facade.

What also wasn’t right was the statement the Humane Society of the US, Conservation Northwest, Wolf Haven International, and Defenders of Wildlife made. They were profoundly wrong to urge restraint. They have allowed their participation in the Advisory Board to file down their teeth, blunt their claws, and to remove the only weapons they have to fight for real change.

Membership on the Board or not, they should have howled, as loud as the wolves howled before death. They should have said to all of us, “Don’t accept this! Fight this!”

They should have embraced outrage, instead of trying to damp it down. If they can’t be outraged and serve on the Board, then they have no place on this board. Or they have no place in the animal welfare movement.

I’m not ready to abandon the groups, but I’m not ready to embrace them, either. They screwed up.

Don’t accept this. Get in people’s faces. Be mad. Be vocal. Be loud. And if being loud means to hell with respectful and civil discourse, so be it.

Photos, public domain by US Fish & Wildlife

 

 

 

Orangutan laying on grass looking at camera

My Current Version of Learning Node

As we finished up Learning Node, 2nd, the Node.js Foundation released Node version 6. I quickly did a run through to see if I needed to modify the book text. Yes, indeed, I did.

One of the major changes was how new Buffers are created. This is a major change, considering how integral Buffers are to Node. I hastily re-wrote the section on Buffers in the book, noting that the existing examples demonstrate how to create a Buffer in Node 4.x, but not Node 6.x and later. I also provided additional examples for Node 6.x.

Another major change was how to refer to the fast lane version of Node.js, originally called “Node Stable”. Now, it’s referred to as “Node Current”.

I may have influenced this change. I filed bugs last year about the Node documentation.  One bug had to do with the confusion surrounding which version of Node should be the “default” API.

The Node.js Foundation recommends the LTS versions for production use, because of their long-term stability (hence the name). However, if you access API documentation for Node.js directly, such as searching for Buffer in Google, you’ll get the new Current version.

We went back and forth in the comments about the problems inherent with having the least stable API as the default documented API. I also repeatedly pointed out the problems when you have multiple “current” versions of Node (LTS and Stable), and how would people know which is the current version of Node.js?

To be honest, I didn’t see renaming Stable to Current to be one of the possible solutions. That’s a bit like sweeping dirt under the rug. Oh look! We can’t see the dirt now!

Back to finishing up the book. I quickly changed Stable to Current where applicable. What’s done is done. I hope the book does well.

This is my last book on Node. I may, in the future, write other books on technology, but not Node. Change is the byword for the Node community and that doesn’t translate well when it comes to writing books. I will, eventually, return to technical writing here at Burningbird in addition to my other writing, and I will write about Node. But no books.

And when I write on Node, it will be the current version. Whatever that may be.

 

 

Vulture flying overhead

This Week with the Clinton Email Industry

The Freedom of Information Act was never intended to be a jobs program for lawyers.

Following up on my previous stories regarding the FOIA lawsuit related to the Clinton emails, earlier this month Judicial Watch  deposed Karin Lang, Director of Executive Secretariat Staff at State, and Ambassador Stephen Mull, currently lead coordinator for the implementation of the Iran Nuclear deal for the US.

With Ambassador Mull, we learned that he really can’t remember an email sent in 2011 related to Clinton’s Blackberry. I don’t know why not. Can’t most of us remember every email we sent five years ago?

With Director Lang, we discovered it was the viral photo of Secretary Clinton in sunglasses that sparked a discussion about Clinton’s email, but we don’t know when the discussion occurred, or with whom. She also confirmed that none of the prior Secretaries of State had a government email address, so Secretary Clinton not having one was not unusual.

In addition, in a flurry of filings demanded by Judge Emmet Sullivan, Bryan Pagliano’s lawyer filed a copy of Pagliano’s limited immunity agreement with the DOJ, as well as an argument for him being able to plead the Fifth in a civil lawsuit. The immunity agreement was filed under seal, meaning only the Judge can see it.

To paraphrase Pagliano’s lawyer, pleading the Fifth in a civil lawsuit is not only allowed, but an accepted practice if the witness had concerns about future action related to the topic at hand. Since we already know the FBI is investigating Clinton’s email server—in some regard—the lawyer asserted that Pagliano’s concerns were reasonable.

Judicial Watch filed motions disagreeing with keeping the immunity agreement under seal, as well as Pagliano having the right to plead the Fifth.

The DOJ also filed a motion about keeping the immunity agreement under seal, as it is associated with an ongoing investigation. Pagliano’s lawyers filed a motion concurring with the DOJ. They also gently reminded Judge Sullivan that the only issues pending are whether Pagliano’s deposition is videotaped and if the DOJ immunity agreement is kept sealed. Pagliaono’s right to invoke the Fifth is without question, contrary to Judicial Watch’s attempts to compel Pagliano’s testimony.

Judge Sullivan agreed, for the most part, with Pagliano. He denied Pagliano’s request not to videotape the deposition, probably because all of the videotapes are being kept confidential. But he granted Pagliano’s request to keep the immunity letter under seal. That Pagliano can plead the Fifth is a given.

Now, all of that’s behind Door Number One.

Behind Door Number Two…Another Judicial Watch Lawsuit Against State

I noticed that Judicial Watch’s filings for this case have a sort of breathless quality to them. And no wonder. While it was busy filing motions in the Honorable Judge Emmet Sullivan’s court, it was also filing motions for another FOIA lawsuit against State in another court, under the Honorable Judge Royce Lamberth.

In that case, which is based on an original FOIA request for information related to Benghazi talking points, State is exerting a greater deal of pushback against Judicial Watch’s demand for discovery, because Judicial Watch got too greedy trying to set the discovery parameters:

Now, for the first time, in its proposed reply, Judicial Watch attempts to justify these discovery requests about not just the search for records responsive to this narrow FOIA request, which sought documents within the Office of the Secretary regarding certain talking points about the Benghazi attacks, but for all searches conducted for emails related to the Benghazi attacks. Plaintiff improperly seeks discovery on topics far beyond the scope of its FOIA request, including but not limited to searches for records for the Accountability Review Board, searches in response to congressional inquiries, in preparation of Secretary Clinton’s testimony before Congress, and searches for records responsive to other much broader FOIA requests. The attempt is far too late. Notably, even this belated attempt fails to offer any actual explanation as to the need for discovery ranging far beyond the searches conducted in response to the FOIA request at issue here. Judicial Watch simply asserts, without additional explanation or the necessary attestations, that discovery about unrelated searches “go[es] to the heart” of the Court’s Order.

I believe that “go[es] to the heart” is equivalent to, “We wants it, Precious”.

But Wait…There’s More

The two lawsuits I just described aren’t the only lawsuits Judicial Watch has going related to FOIA requests. According to information in the FOIA Project, and data I pulled from PACER (the federal court system database), Judicial Watch has filed nineteen FOIA lawsuits since January 1. This is in addition to prior year lawsuits still being litigated, like the two I just mentioned. From what I’ve been able to discover, Judicial Watch has at least 17 active FOIA lawsuits in the District of Columbia federal court; the vast majority are related to the Clinton emails.

They must be on first name basis with everyone in the court. Perhaps the Judicial Watch lawyers join the federal court employees in a weekly poker game.

Judicial Watch isn’t the only organization filing these lawsuits. According to one of the motions filed by State in the Lamberth court case, there are currently sixty  FOIA lawsuits pending in court related to the Clinton emails.

Sixty. That’s enough for an entire industry made up of lawyers, legal assistants, law clerks, and FOIA researchers. Let’s hope we never have another former cabinet member run for President: the government couldn’t afford it.

Generations of Workers For One FOIA Request

The Republican National Committee has filed at least seven FOIA lawsuits related to Clinton or the Clinton emails.  The State has worked with the RNC to meet the demands in most of the lawsuits. In one, though, the State asked to have the case dismissed because, according to it, it would take generations of workers in order to meet the demand.

In this particular request, the RNC asked for all emails, to and from, for Cheryl Mills, Jacob Sullivan, Patrick Kennedy, and Bryan Pagliano. Even after the search was limited the government discovered the result would be a burden:

Even after applying the search terms and date limits (to the extent possible given
technological limitations), there remained approximately 450,000 pages of documents that are potentially responsive to the Mills, Sullivan, and Kennedy requests. To be more specific, there are about 100,000 pages potentially responsive to the Mills request, 200,000 pages potentially responsive to the Sullivan request, and 150,000 pages potentially responsive to the Kennedy request. Moreover, the State Department considers the documents responsive to these requests to be complex because they include classified documents and interagency communications that could have to be referred to other agencies for their review.  Given the Department’s current FOIA workload and the complexity of these documents, it can process about 500 pages a month, meaning it would take approximately 16-and-2/3 years to complete the review of the Mills documents, 33-and-1/3 years to finish the review of the Sullivan documents, and 25 years to wrap up the review of the Kennedy documents – or 75 years in total (without considering the requests for the Pagliano records).

Can you imagine having a job whose sole purpose is to process these email requests?

“Hey Sally, how was work yesterday?”

“Pretty good. We had four redactions.”

“Four! Wow, must have been exciting.”

“Yeah, we all went out for a beer after work to celebrate.”

At least Judicial Watch is a pro when it comes to FOIA requests. It knows to keep requests sized so they’re not rejected outright as being a burden. Still, in my opinion, and backed by data, Judicial Watch is the organization putting the most demand on State and other agencies. It’s requests are smaller, but it files new ones on a frequent basis, barely pauses for the agencies involved to process the requests, and then files a lawsuit demanding a response.

How much does this all cost?

Agencies must maintain employees who respond to FOIA requests. The State Department has had to hire at least 50 new employees, just to handle the increased number of FOIA requests. At the end of 2015, it had 21, 759 FOIA requests still pending. This, on top of the 20,000+ FOIA requests it expects to get this year, all under a 15% budget cut from Congress.

In addition, every FOIA lawsuit takes time and money, both in the courts, and in the Department of Justice, which defends the lawsuits.

Most people probably expect these costs. What they may not expect is that the government agencies may also have to foot the bill for the lawyers and legal costs of the FOIA lawsuit plaintiffs.

President George Bush signed the Open Government Act, which amended the FOIA. Among the new additions were provisions making it easier for FOIA lawsuit plaintiffs to obtain legal fees when they “substantially prevail” over the government agency. In addition, a provision also changed the funds for such fees, so that they now came directly out of the agency’s operating budget.

Even without the amendments, organizations could win legal fees for cases against government agencies. In 2004, in a lawsuit against the Department of Commerce, Judicial Watch was awarded close to $900,000. It was only on appeal that some of the award was reversed, because the Judge had awarded Judicial Watch fees for its discovery disputes with third parties who were outside of the DOC’s control.

Discovery disputes like the one related to Bryan Pagliano.

Checking into the Department of Justice records for closed FOIA cases in 2015, for the most part legal fees are not awarded. However, the government agencies still footed the bill for over 2 million in lawyer fees and court costs.

The costs associated with FOIA litigation isn’t in the attorney fees, though. It’s in the court’s time, and the DoJ’s time, and in the agencies time to make additional or expanded FOIA searches. For instance, in 2015, decisions were rendered in 36 Judicial Watch cases, but only one had court and attorney fees awarded.

Keeping Lawyers Gainfully Employed

Judicial Watch isn’t the only organization filing FOIA lawsuits but it is, by far, the most active. From every indication, this is all the organization does.

It discovers a tidbit of information, or hears of something in the newspaper, and then files multiple FOIA requests. In most cases, the agencies respond. If they don’t respond in 2-4 months, though, Judicial Watch files a lawsuit. And why not? It has a staff of lawyers, and it only costs $400.00 to file a lawsuit.

Since the majority of information it seeks is related to Democratic leaders and/or causes, Judicial Watch uses the results of its effort as fund raisers in the conservative community. And it ensures a steady stream of support by how it presents the data it finds.

As an example, the latest Judicial Watch release was related to a lawsuit seeking documents under the FOIA regarding waivers to access web email for officials in the Department of Homeland Security. Judicial Watch presents the data in the worst possible light:

Jeh Johnson and top officials at Homeland Security put the nation’s security at risk by using personal email despite significant security issues,” said Judicial Watch President Tom Fitton. “And we know now security rules were bent and broken to allow many these top Homeland officials to use ‘personal’ emails to conduct government business. This new Obama administration email scandal is just getting started. If the waivers were appropriate, then they wouldn’t have been dropped like a hot potato as soon as they were discovered by the media.

When you look through the emails, though, you realize that personal email access wasn’t a nefarious plot to skirt open records laws, or undermine the security of our nation. It’s just people wanting to access their personal email via web application, because they can’t use their smartphones while on the job.

A mistake in judgement, perhaps. End of the world? Nope.

All of this—the never-ending FOIA requests and multitudes of related lawsuits, in addition to fishing-expedition discovery— is perfectly legal. It may even seem to be a goodness… except the agencies are so tied up responding to organizations like Judicial Watch that other requests, from individuals or smaller organizations without lawyers permanently ensconced at the DC court, end up waiting months, perhaps even years, for a response. And we can’t afford to file a lawsuit in order to ensure our requests go to the top of the heap.

I currently have one request into the DOJ for a lawsuit completely unrelated to Clinton’s emails. I did receive an acknowledgement of my request. However, I would surprised if I receive the documents I’m after before next year. And it’s not because the DOJ is being a slackard. It’s because of organizations that have turned the FOIA into a money machine. Organizations, like Judicial Watch.

Bird in a tree

Writing at Crooks and Liars

I have been writing some pieces at Crooks and Liars, primarily to extend my audience reach. My poor little weblog just doesn’t have the oomph it once had—probably because I write on such an odd mix of topics.

About my pieces at Crooks and Liars…

I’m a Clinton supporter, but even if I weren’t, I’d be unhappy at the obvious attempt to turn her use of a personal email server into the next Apocalypse. That the hysteria about her use of a personal server is manufactured is obvious. The problem is compounded by a media that has done a poor job of covering the story, aided and abetted by the GOP. Sadly, their efforts have also been helped by Bernie Sanders and his supporters. Yes, Bernie says he doesn’t want to get into the Clinton email server, but he always manages to insert an aside about “how serious this situation is” in some form or another.

He’s been in DC for decades, he knows this ‘scandal’ is engineered. Why can’t he just say so, and then go on to the issues?

I’m also unhappy about the continued abuse of the FOIA by groups like Judicial Watch and the Competitive Enterprise Institute. So it was natural for me to follow the FOIA lawsuits associated with the Clinton emails, especially when I discovered one was being presided over by Judge Emmet Sullivan—not my favorite federal judge.

Judicial Watch, CEI, and others like them make most of their income trolling through public records. They make sweeping and broad FOIA requests to agencies already maxed to the limit with trying to support open records requests. Then, when the agencies don’t respond in a fairly short time, or respond in the way they want (and they’re seldom happy with the results of a search), they file a lawsuit.

What most people don’t know, is those lawsuits cost the American taxpayer money. Judicial Watch got close to a million dollars in legal fees with one lawsuit, $330,000 in another, and that’s just a start. I suspect all of Judicial Watch’s efforts have cost taxpayers millions, if not tens of millions of dollars.

The agencies do make good faith efforts to find records, such as the State Department made a good faith effort to find Clinton emails. But State also has to respond to an average of 20,000 or so FOIA requests in a year, with a budget that’s been decreased 15% by the Republican-dominated Congress.

That Clinton’s emails weren’t found is more a result of confusion about what’s stored than not. From all of the emails I’ve looked at, she either responded to someone with a State email address, or forwarded the email to someone with a State email address. Everyone seemed to assume that all emails in a State email account were automatically saved, and searchable by FOIA. Of course, from the recent OIG report, we know this isn’t true. Does that make State negligent and Clinton criminal?

Of course not.

When Clinton did give her backup of the emails to State, they put everything online. Everything. No one individual ever working for any government agency has ever had this much exposure of their emails.

State had had to hire 44 more people, just to handle FOIA requests, primarily related to Clinton.

Despite that, Judge Sullivan and Judge Lamberth, another judge who demonstrates some of the same characteristics as Sullivan, are allowing Judicial Watch to do discovery in their FOIA lawsuits. It’s absurd. FOIA is administrative law. If the Judge decides that the agencies didn’t do enough to fulfill a request, they can sanction the agency, and order it to pay legal fees. But discovery?

And the direction of the discovery in the Sullivan case is disturbing. State offered to bring in  personnel responsible for FOIA requests to be deposed, but no, Judicial Watch wanted people that Clinton had on her staff, such as Cheryl Mills. These are people that had, at most, a remote connection to anything to do with the emails, but oh, they know a lot about Clinton. Judicial Watch wants to depose Bryan Pagliano, the person who set up her server, but he’s demonstrated since the beginning of this fiasco he wants nothing to do with it, and now that’s caused even more issues.

We’ve already seen Judicial Watch blast through the narrow confines Sullivan set for discovery. They do so with impunity, because they know Sullivan, like I know Sullivan: once you trigger Sullivan the Crusader, say good-bye to Sullivan, the thoughtful and balanced jurist.

All combined, I’m going to continue to write about the FOIA lawsuits. Unless Crooks and Liars tells me enough already with the FOIA lawsuits and depositions, I’m going to continue covering them at the publication, but may start duplicating them here, for those of my regular readers who might be interested.

My most recent piece for Crooks and Liars is not on FOIA lawsuits, but was a direct response to  recent interviews Susan Sarandon did with MSNBC and Young Turks (I originally saw the interview in Salon). In a piece at The Hill, we read:

Sarandon, who supports Bernie Sanders for president, said Trump’s ideas are too implausible to be dangerous.

“This is what we’re fed — ‘he’s so dangerous, he’s so dangerous,’ ” she said. “Seriously, I’m not worried about a wall being built and Mexico paying for it.

“He’s not going to get rid of every Muslim living in this country. Has he made it the norm to be racist and vent these kinds of things? Yes. But seriously, I don’t know what his policies are.”

She basically dismisses all the appalling statements Trump has made, as if they’re inconsequential because everyone knows they won’t happen. This is the exact same rhetoric we’ve started to see from the GOP this week: oh, don’t worry, Trump can’t do any of that stuff, so you can elect him President. Congress will control him.

Sarandon then accuses Hillary Clinton of being more dangerous. Trump wants to ban Muslims, build a wall, threatens a federal judge, seems to see the Presidential role as a personal perk, has disdain for Constitutional separation of powers, wants to play patty cake with the leader of North Korea, is bellicose about China, Japan, Mexico, NATO, and every single one of our allies…and Clinton is more dangerous!?

Sarandon also used the opportunity to chastise the media for not covering Clinton’s upcoming indictment, which, according to her is a certain thing:

“Nobody’s even talking about this indictment,” she told MSNBC. “What happens with that, besides the trust issue of catching her in so many lies?”

“Well, there has been no indictment,” Chris Jansing responded.

“No, but there’s going to be,” responded Sarandon. “I mean, it’s inevitable.”

I answer her “it’s inevitable” at C & L, but a short summary: what a crock.

In my opinion, if Sanders doesn’t get the Democratic nomination, Sarandon wants Trump to win.  She once slipped and said she thought it would shake things up, but then disclaimed the statement. But I truly believe she thinks this. And she’s encouraging other Bernie supporters to think the same.

“Well, you know, some people feel Donald Trump will bring the revolution immediately,” Sarandon told Chris about why she’d vote for Trump. “If he gets in, then things will really explode. The status quo is not working. I think it’s dangerous to think that we can continue the way we are … to think you can’t do something huge to turn that around, because the country is not in good shape if you’re in the middle class.”

My piece may seem over the top, but it’s relatively restrained considering what I really wanted to write.

My Crooks and Liars pieces:

I’m still writing here and my other sites. Still writing about tech. Still writing about all the other stuff I write about.