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.