We got a pleasant surprise this week: a phone call from Eric F. Stein, the head of the State Department’s FOIA-processing office.
Mr. Stein’s name and signature appeared on a bizarre letter we received last month, telling us that one of the unanswered Freedom Of Information Act requests we’d been bugging the State Department about for the last five years would be “dismissed” if we didn’t respond immediately to say that we were “still interested” in the records we had requested. To make it harder to respond, there was no phone number or e-mail address in the letter.
“I want to apologize to you directly for that letter,” Mr. Stein said. “I’m sorry we sent you that letter. It was sent by somebody who had the authority to use my signature, but we should never have sent it to you. I’m still trying to find out why it was sent. Somebody is supposed to look at the file before they send out one of these letters. You laid it out very clearly in your letter, and you’re right: Nobody could have looked at that file, and everything you had done to follow up on your request, and thought that you weren’t interested in a response any more. I’ve just had an all-hands meeting of my department and told my staff not to send out any more ‘still interested’ letters until we can be sure that we are following the procedures we said we would follow.”
All well and good, and we thank Mr. Stein for his apology. The real test, however, will be whether, and if so when, we actually receive any of the State Department records we’ve requested. More than five years after our first request to the State Department, we have yet to receive any of the State Department records we’ve requested, or even a final denial of any of our requests. All of our request are still in limbo. That’s typical for the State Department, which has the worst record for FOIA delays of any Federal department. Ironically, two of our requests are for records concerning the State Department’s practice of effectively denying passports to U.S. citizens by indefinitely delay of decisions on passport applications, the same way it effectively denies FOIA requests by indefinite delay.
Mr. Stein has been a busy man lately: He’s the person responsible for dealing with a backlog of 29,000 pending FOIA requests to the State Department including those for former Secretary of State Hillary Clinton’s email messages. There are so many FOIA lawsuits pending against the State Department — 106 at Mr. Stein’s last count, according to a declaration he filed in one of the Clinton email cases — that more than 80% of the State Department’s regular FOIA staff have been assigned exclusively to dealing with the cases that are in litigation. That means it’s taking even longer to respond to the vast majority of FOIA requesters who can’t afford to sue.
Courts are very reluctant to acknowledge factual disputes or order discovery or other fact-finding in FOIA cases. Usually, judges accept self-serving declarations from agency officials as conclusive evidence of how those agencies have dealt with FOIA requests. But the evidence of State Department bad faith in FOIA processing has been so extreme that the courts have taken the extraordinary step of allowing discovery, including depositions under oath of State Department FOIA-processing staff.
Some of the decisions in the lawsuits against the State Department about Clinton’s email may turn out to be relevant to our requests.
Because the State Department hasn’t disclosed who, if anyone, it has designated as responsible for responding to complaints of violations of human rights treaties (which is itself the subject of one of our still-unanswered FOIA requests) , we had no choice but to send our our complaints directly to the Secretary of State, Hillary Clinton. We don’t know to whom our letters were forwarded, or which employees in the Office of the Secretary used Clinton’s private email server. But since our request went to the Office of the Secretary, a search for records responsive to our request would probably need to include a search of the records from that private server.
As with all of our FOIA requests, we’ve asked for records of email messages to be provided in their “native format”: raw message source code including all headers. The FOIA law requires that records be provided in the requested form, as long as they are “readily reproducible” in that form. And it’s obvious that digital files are more easily reproduced as bitwise digital copies than in any other format. But the Clinton emails have to date been disclosed to other requesters only as images of printouts, without the headers. One of the pending FOIA lawsuits concerns the State Department’s failure to produce the email records from the Clinton server in their native format including headers. We’ll be watching (and waiting, for we know not how many more years) to see what is decided in that case, and in what format we eventually receive any State Department email messages.