The State Department’s records management, FOIA compliance, and oversight responsiveness have endured withering scrutiny in court and on Capitol Hill since disclosure of Hillary Clinton’s use of a private email server during her tenure as Secretary of State. Just this week, Judge Emmett Sullivan ordered discovery to proceed in Judicial Watch v. State Department. While the political bullseye on Clinton and court FOIA machinations drive current press coverage, problematic State Department records management and accountability long predate Clinton’s tenure.
From FOIA responses to the preservation of public records, both the agency’s internal oversight mechanisms and congressional committees have expressed their frustration with the State Department’s recordkeeping. These systemic problems have very little to do with Clinton’s email practices, but they add to the atmosphere under scrutiny. Perhaps the heat of the controversy will bring some much needed resources and leadership to the State Department’s accountability culture.
FOIA Responses
At the beginning of this year, the State Department’s Inspector General issued a report evaluating the agency’s FOIA practices related to the Office of the Secretary. In the context of the 2016 presidential election and lingering Clinton email controversy, the report generated headlines. It criticized the Department’s search protocols, indicating that they “do not consistently meet statutory and regulatory completeness and rarely meet requirements for timeliness.” On timeliness, it noted that some requests took as long as 500 days to process. It provided this table:
Table 1: Processing Time for FOIA Requests Related to Recent Secretaries of State (Requests Completed Within Listed Times
Source: OIG analysis of IPS data, as of June 2015.
The IG also criticized the Department for failing to provide sufficient personnel to handle the caseload. Indeed, in the last few years, the number of employees handling Department-wide FOIA requests dropped significantly, while the number of requests received has increased.
Figure 2: IPS Staff Devoted to Processing Department-wide FOIA Requests
Source: OIG Analysis of IPS data.
Finally, the report noted that the Department appointed a Transparency Coordinator last September to improve the agency’s FOIA process, but also indicated that there were several issues that required more immediate attention. Thus, the IG made a number of recommendations related to written policies and procedures, internal controls, and performance evaluations designed to strengthen responses. After the report’s release, Department spokesman John Kirby indicated Secretary John Kerry would implement the report’s recommendations.
However, the IG’s report sounded longstanding themes about State Department difficulty managing its FOIA responses. For example, in 2013, the Department boasted that it had “achieved another milestone in fiscal year 2013 by reducing its FOIA request backlog by 16.8% and its FOIA appeal backlog by 22.7%, and by closing its ten oldest requests, consultations, and appeals.” During that year, it received 18,673 requests and processed 21,018. Additionally, the Department made over 2,500 more full or partial releases and processed over 5,700 more cases than the previous fiscal year. But the agency still finished the year with 9,482 pending requests.
Similar critiques date back to the Bush and Reagan eras. For example, in 1989, the GAO found that between 1985 and 1987, the State Department took longer than six months to complete three-fourths of its 7,567 FOIA requests. It found systemic weakness and delays in the management center responsible for sending FOIA requests to the affected Department components for search, forwarding documents for classification review, and preparing responses to the requestors. At the time, State indicated it suffered from an “inability to devote the necessary staff to this activity” and that it only had between three and eight staff members assigned to FOIA response. The GAO also documented some 220 instances in which the Department improperly closed pending FOIA cases.
And that wasn’t the first time similar problems were made public. Two years earlier, in 1987, the GAO reviewed the State Department’s automated FOIA request tracking system and found an overall data entry error rate of 16.2 percent, with approximately 41 percent of the FOIA requests logged containing at least one erroneous data point. Of particular concern, in 13 cases a completion date was entered for a FOIA request that was still open.
Federal Records Preservation
Agencies across the board have generally had difficulty keeping up with the explosion of records generated in the information age. Like most federal agencies, the State Department has struggled for years to meet its obligation to preserve “agency records” as defined by the Federal Records Act.
For example, in 2009, an email platform upgrade empowered employees to designate certain emails as “record emails” for purpose of preservation under the FRA. In March 2015, the IG found that in 2011, State Department employees only created 61,156 record emails out of more than one billion emails sent. The IG also found that some “employees do not create record emails because they do not want to make the email available in searches or fear that this availability would inhibit debate about pending decisions.” Needless to say, that is not the appropriate standard for whether or not a record should be preserved.
Congressional Oversight Responses
Congress has also expressed institutional frustration with State Department’s responsiveness. Take, for example, the 2011 Government Accountability Office study titled “Process to Track Responses to Congressional Correspondence Can Be Improved.” Of note, the mere existence of the report is emblematic of deep frustration in Congress — it required a legislator to commission a review of the Department’s congressional dealings. That suggests a level of frustration that has exceeded the boiling point. Members of Congress are generally loathe to commission a GAO audit of the conduct of their direct agency contacts unless they are extremely frustrated. Second, for this particular report, it was Sen. Claire McCaskill (D-Mo.), chair of a contracting oversight subcommittee, whose pot boiled over. This was not partisan trench warfare. Rather, it demonstrates sincere institutional concerns.
The GAO found plenty of delay and backlog, noting that the Department met its 21-day response goal in just 2,524 of the 4,804 cases the GAO reviewed — a 53 percent goal-attainment. However, the Department also failed to track 1,544 (32 percent) of the cases at all.
As an executive branch lawyer, I was wary of any congressional interference with how agencies respond to document requests. It generally seems like an encroachment into the “separation” in the separation of powers (as I have written about in the context of Operation Fast and Furious). As a congressional overseer, though, I recall being at my wits’ end with the lack of progress on numerous unobjectionable requests for State Department information. In fact, I recall suggesting to a State Department counterpart that my Chairman was considering commissioning a similar study before this one was issued.
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In the Department’s defense, it has to perform critical national security missions all over the globe on a budget that is dwarfed in comparison to the Pentagon’s. An overall austere budget environment is exacerbated in the records-management context by an aversion to appropriating funds for management resources when it comes at the cost of front-facing diplomatic roles. Moreover, the State Department is, by definition, a far-flung operation. It has multiple modes of communication delivery, ranging from email to cables to pouches. Numerous platforms and storage repositories complicate records retention and searches.
Furthermore, the State Department has many legitimate confidentiality interests that need to be considered on a case-by-case basis. Its documents reflect presidential communications, deliberative processes, diplomatic sensitivities, personnel information, third-party privacy interests, trade secrets, open criminal files, intelligence information, and adjudications. Moreover, the National Security Council process means that other agencies, including the White House, will have equities in many Department documents that are the subject of FOIA and congressional requests. They need to have a reasonable opportunity to review such documents prior to release.
In all, however, the State Department comes across in many oversight and accountability community reports as an agency that struggles to get its arms around its documents, internal management controls, and responses. That is consistent with my experience. The State Department needs significant improvement in its records management, public records compliance, and legislative responses. Legislators need to appropriate the funds for adequate personnel and technology, Department leadership needs to make these processes a priority, and Department lawyers need to be more intimately involved in overseeing them. I hope that these structural and cultural changes become the legacy of this election-fueled email controversy.