Case 1:15-cv RC Document 56 Filed 02/12/16 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

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1 Case 1:15-cv RC Document 56 Filed 02/12/16 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JASON LEOPOLD, Plaintiff, v. Civil Action No. 15-cv-123 (RC) U.S. DEPARTMENT OF STATE, Defendant. DEFENDANT S NOTICE IN RESPONSE TO THE COURT S MINUTE ORDER OF FEBRUARY 9, 2016 Defendant U.S. Department of State submits the attached declaration of Eric F. Stein, who serves as a senior advisor and deputy to State s Deputy Assistant Secretary (DAS) for Global Information Services (GIS) on all issues related to GIS offices and programs, in response to the Court s minute order of February 9, In that order, the Court ordered State to file a detailed explanation of how the Department s oversight in originally failing to send 7,254 pages of documents to other agencies for interagency consultation arose, what caused that oversight, and why it was not discovered until recently.

2 Case 1:15-cv RC Document 56 Filed 02/12/16 Page 2 of 2 Date: February 12, 2016 Respectfully submitted, BENJAMIN C. MIZER Principal Deputy Assistant Attorney General MARCIA BERMAN Assistant Branch Director /s/ Robert J. Prince ROBERT J. PRINCE (D.C. Bar No ) United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., N.W. Washington, DC Tel: (202) robert.prince@usdoj.gov Counsel for Defendant - 2 -

3 Case 1:15-cv RC Document 56-1 Filed 02/12/16 Page 1 of 11 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JASON LEOPOLD, Plaintiff, v. Civil Action No. 15-cv-123 (RC) U.S. DEPARTMENT OF STATE, Defendant. SECOND DECLARATION OF ERIC F. STEIN Pursuant to 28 U.S.C. 1746, I, Eric F. Stein, declare and state as follows: 1. I work directly for the Deputy Assistant Secretary (DAS) for Global Information Services (GIS) of the United States Department of State ( State ). In this capacity, I serve as a senior advisor and deputy to the DAS on all issues related to GIS offices and programs. I oversee all aspects of State s effort to review, process, and produce the non-exempt portions of the s provided to State by former Secretary Clinton ( the Clinton s ), including the review and referral of documents to appropriate offices and agencies, and the posting of the documents on the Freedom of Information Act ( FOIA ) website every month. I make the following statements based upon my personal knowledge, which in turn is based upon information furnished to me in the course of my official duties. 2. The purpose of this declaration is to respond to the Court s February 9, 2016, minute order, issued following a status conference held earlier that day, in which the Court ordered State to file a detailed explanation of how the Department's oversight in originally failing to send 7,254 pages of documents to other agencies for interagency consultation arose, what caused that oversight, and why it was not discovered until recently. In this declaration, I explain the processes put into place to identify and conduct the interagency consultation

4 Case 1:15-cv RC Document 56-1 Filed 02/12/16 Page 2 of 11 necessary to comply with the Court s order regarding production of the Clinton s. That order ( Scheduling Order ) called for monthly productions of the non-exempt portions of Clinton s and set increasing page-count goals for State to aspire to meet each month. Scheduling Order (May 27, 2015) (ECF No. 17). I then explain how, in the midst of ongoing work to meet each upcoming monthly production goal while also moving documents through the review process so that they would be available for later productions, State overlooked sending a number of documents for necessary interagency consultation. Finally, I explain, based on the information available to me, how and when the issue was first discovered and why it was not discovered sooner. Because the events recounted here occurred during a hectic time, I relate them to the best of my recollection. Interagency Consultation Process 3. The Clinton review process was designed to achieve two main objectives: to meet the monthly goals and to prevent the premature release of documents that had not completed the review process. To achieve the second, State instituted management controls to prevent the release of any documents that had not been sent to and returned by all the necessary agencies. As State has previously explained, State reviews records responsive to FOIA requests for U.S. Government interagency interests. In some instances, a document that originated with State may include information that originated with another U.S. Government agency or agencies. When this happens, State consults with the applicable agency by sending the document for the agency s review. The relevant agency then conveys its release recommendation or determination to State. In the case of the Clinton s, there were five different entities or groups that could have identified s in need of interagency consultation at various points in the review process and then marked the documents for external coordination. As discussed below, those five - 2 -

5 Case 1:15-cv RC Document 56-1 Filed 02/12/16 Page 3 of 11 entities or groups are State s FOIA office, State s other offices and bureaus, Intelligence Community ( IC ) reviewers onsite at State, other agencies consulting on particular documents, and State s Office of the Legal Adviser. 4. The first step for a document in the process was review by the FOIA office to make a first-cut determination about (1) what redactions were necessary and appropriate, (2) which offices within State, if any, needed to review the document, and (3) whether the document needed to be referred for interagency consultation. The FOIA office noted this information on each document using FREEDOMS, the State FOIA case management system, and if agency consultation was required, marked the document for external coordination. 5. The document was then sent to the appropriate State offices for review. This review was conducted before interagency consultation to allow subject matter experts in those offices to identify any additional sensitive information and to look for other agency equities with which they may be more familiar than the FOIA office reviewers, particularly on contemporary topics. Each office then returned the documents to the FOIA office with any additional recommendations regarding redactions and interagency consultation. A FOIA reviewer then added notations to the document in FREEDOMS to indicate any needed interagency consultation and mark it for external coordination as appropriate. 6. In July 2015, in response to recommendations from the Inspectors General for State and for the IC, State made arrangements for the IC to provide reviewers to assist State in screening documents for potential IC equities. These IC reviewers began working in a State facility on July 15, Documents identified by IC reviewers as containing such equities were sent to a FOIA reviewer, who then added notations to the document in FREEDOMS to indicate any needed interagency consultation and mark it for external coordination

6 Case 1:15-cv RC Document 56-1 Filed 02/12/16 Page 4 of The interagency consultation process itself led to further interagency consultation in some instances, such as when a consulting agency identified some information as originating from yet another agency. Similarly, State s Office of the Legal Adviser, during its legal review, identified some documents that needed additional interagency consultation. In either case, documents identified as needing additional consultation were sent to a FOIA reviewer, who then added notations to the document in FREEDOMS to indicate any needed interagency consultation and mark it for external coordination. 8. State set up a team in the FOIA office ( the interagency team, a subgroup of the Clinton team) to be responsible for managing and tracking the interagency consultation process. This interagency team grew in size as the number of documents identified as needing interagency consultation grew. I estimate conservatively that at least a third of the Clinton s, over 17,000 pages, needed to be sent to at least one of 49 different agencies or offices for consultation. Some documents were sent to five or more agencies for consultation. The interagency team had to track for each interagency consultation both the version of the document that was sent to the agency and the version of the document returned by that agency. 9. The interagency team processed the documents in bundles for each agency receiving documents. An interagency team member first identified a number of documents going to the same agency. The interagency team member manually added these documents to a spreadsheet noting the document numbers and the agency or agencies to which each needed to be referred; no automated system exists that tracks these interagency referrals. Depending on whether that agency received documents on paper or electronically, the team member printed each document one at a time or had a member of the IT staff export them to PDF. The team member then bundled together the PDFs or printouts, drafted a cover memo with instructions for - 4 -

7 Case 1:15-cv RC Document 56-1 Filed 02/12/16 Page 5 of 11 the agency, and sent the documents to the agency, either by secure or courier, as appropriate. The team member recorded on the spreadsheet the date each document was sent to the agency. Because many documents went to multiple agencies, some documents were processed by more than one interagency team member. While team members generally tried to have the same person send documents to the same agency or organization, they would work together to send out documents identified as needing interagency review as quickly as possible. 10. The interagency team updated the tracking spreadsheet with the date each agency returned a given document. Once a document was returned by all agencies to which it had been sent, the interagency team bundled the comments from each agency to which the document had been sent and provided them to the appropriate Clinton team member in the FOIA office. That Clinton team member then changed the document s status in FREEDOMS to modifiable and provided the agencies comments to a FOIA reviewer who removed any markings for external coordination. The presence of the external coordination mark on a document in FREEDOMS was thus an indicator that agency consultation was necessary but had not yet been completed. The mark alone did not indicate, however, whether a document had actually been sent to any agencies yet. As set forth in paragraph 9 above, that information was only indicated in spreadsheets being manually created and tracked. The FOIA reviewer made any necessary modifications to the proposed redactions and typically added a comment in FREEDOMS regarding the agency comments. For example, a reviewer might add a comment such as Agency B reviewed the document and added redactions. These comments provided a way to track comments made by agencies but did not result in a list or tracking mechanism that definitively showed that each document went to each intended agency

8 Case 1:15-cv RC Document 56-1 Filed 02/12/16 Page 6 of The FOIA office sent batches of documents that had completed interagency review to State s Office of the Legal Adviser for legal review. Once legal review was complete, documents moved into the final review process, unless legal review resulted in additional consultations with State offices or outside agencies. Integration of Interagency Consultation Within the Monthly Release Process 12. Although the steps described above were roughly linear, generally happening one after the other with respect to each document, the entire process was running in parallel. Roughly each week, a new batch of documents was reviewed by the FOIA office, an earlier batch already reviewed by the FOIA office was reviewed by other State offices, and still earlier batches that had been through the FOIA office and State review underwent legal review. While all this was going on, those documents that needed interagency consultation were being sent to agencies and received back. All this was necessary to allow State to meet not only the upcoming monthly goal, but future goals as well. 13. The interagency team s spreadsheet tracked which documents had been sent to which agencies and whether they had been returned to State, but as a general matter did not contain those documents that had not yet been sent for interagency consultation. As the volume of documents being sent for interagency consultation grew, I added more people to the interagency team in both August and September and held weekly meetings to discuss anticipated issues so that we could address them as quickly as possible. 14. This tracking system worked sufficiently to allow State to identify which documents were available for legal review, final review, and posting each month. With two exceptions, in July and December, State was able to meet its monthly goals; in those two months State quickly made up any deficit. In general, documents that did not require interagency - 6 -

9 Case 1:15-cv RC Document 56-1 Filed 02/12/16 Page 7 of 11 consultation were produced in earlier months. Documents that only needed consultation with one or two agencies began to be added to the productions in August, and State s dependence on interagency documents to meet its targets increased as the year progressed. Because State s main focus was on meeting the monthly production goals, State prioritized the immediate actions necessary to make a posting over the longer-term interagency requirements. For example, people from the interagency team were sometimes pulled from their tasks of following the interagency referrals and returns to perform quality control checks in order to meet posting deadlines. In the midst of all this activity, the management controls worked successfully to prevent documents from being prematurely released; documents meant to go to other agencies remained in FREEDOMS and were not publicly released. 15. In November 2015, the interagency team made a major push to send thousands of pages out for interagency consultation in preparation for the final production deadline. After that push I believed all documents that needed interagency consultation had been sent to the appropriate agencies. Unfortunately, it was not apparent at that time that a large number of documents had been overlooked in that push to complete interagency consultation. 16. I divided all of the documents remaining to be posted to the public FOIA site into blocks of 1,500. Each block was assigned to a Clinton team member; each block owner was responsible for tracking the status of the interagency consultation for each document in the block. Through December, documents continued to come back from agencies at a pace that was ultimately sufficient to meet December s goal in a supplemental posting on January 8. In early January, however, the pace of agency returns began to slow down

10 Case 1:15-cv RC Document 56-1 Filed 02/12/16 Page 8 of 11 Discovery of the Problem 17. Looking back, the team should have identified in November 2015 several thousand more pages as still needing at least some interagency consultation. However, it was not until Monday, January 11, that the Clinton team, while taking stock of what remained to be done before the final scheduled production, realized that it could not account for responses from some agencies for certain documents. The block owners made inquiries with agencies about specific documents. It was not until agencies started to respond to those inquiries that it was definitively known that most of the documents that remained to be produced had not ever been referred out to those agencies. The team began to look into the matter further and found similar problems elsewhere in the collection. It was determined that a comprehensive review of all remaining documents was necessary to determine which ones needed to go to which agencies. The team worked extensive overtime, including during the holiday weekend of January 16 through 18, to identify to which agencies each document still needed to be sent for consultation and to deliver the packages of documents to the agencies. If, after this review, it was unclear whether a document had been sent to a necessary agency, we sent the document to that agency in an abundance of caution. In some instances, agencies had already reviewed the documents, but the majority of documents were being sent to some of these agencies for the first time. This comprehensive review resulted in the sending of 7,254 pages to one or more agencies. 18. Based on my current understanding of the situation, I believe at least two factors contributed to this problem not being discovered sooner. First, because State was producing a large volume of documents, many of which were sensitive, in a short amount of time, it did not have the time to implement best practices in terms of planning, tracking, and reviewing progress of interagency referrals. The production of some 55,000 pages of sent to or received from - 8 -

11 Case 1:15-cv RC Document 56-1 Filed 02/12/16 Page 9 of 11 a former Secretary of State has been State s most difficult and challenging FOIA production in recent memory. Nor had State ever produced such a large collection of documents in such a concentrated period on its FOIA website. The scale and uniqueness of this project has presented unique management issues that we did our best to resolve as they arose. 19. Second, State was always focused on the monthly goals. Each month, State looked for documents for which interagency consultation was complete and could therefore be included in the monthly production. The tracking system was set up to detect problems that could result in the release of documents that had not been fully vetted among agencies and meeting the upcoming monthly goal, not longer-term problems such as the one that arose. I believe this oversight ultimately likely happened because of the pressure on the interagency team to identify documents that had completed the interagency process so that monthly goals could be met. While the process of sending documents out for interagency consultation was ongoing throughout this time and was obviously an important part of the process, the interagency team s primary focus was on processing the documents coming back from the agencies. It was not until the documents in question were needed to meet the next monthly goal that the problem was detected. Conclusion 20. Certain documents were overlooked at one step in a very complex process with a lot of moving parts. Due to the enormity of the effort and the pressing nature of the upcoming deadlines, State did not detect this oversight until those particular documents were of immediate concern because they were needed for the final production. This has been a tremendous, unprecedented undertaking by a team that has worked to the point of exhaustion. Every effort was made to meet the monthly production goals established by the Court while ensuring that any - 9 -

12 Case 1:15-cv RC Document 56-1 Filed 02/12/16 Page 10 of 11 sensitive information appropriately exempt from release was not disclosed. I regret that this error occurred and was not detected and corrected earlier. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge

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