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By Facsimile: 202-616-6695
citizens fo r responsibility and ethics in washington
November 23, 2010
Joan Lapara FOIA Contact Justice Managem ent Division U.S. Department of Justice Room 1111 RFK 950 Penns ylvani a Avenue, N .W . Washin gton , D.C. 20530-000 1 Re: Freedom of Inform ation Act Request Dear Ms. Lapara: Citizens for Responsibility and Ethics in Washington ("CREW") mak es this requ est for records , regardless of format, medium , or physical characteristics, and including electronic records and information, pursuant to the Freedom of Information Act (" FOIA"), 5 U.S.C. §§ 552, et~, and u.s. Department of Ju stice ("DOJ") regulations, 28 C.F.R. Part 16. Spec ifica lly, CREW see ks a copy of all emails from or to former Assistant Attorney General John Yoo over which the Justice Manag ement Division (JMD) has custody. Thi s request includes, but is not limited to , all recovered ema ils referenc ed in a letter from DOJ attorney Jacquelin e Col em en Snead (attached as Exhibit A) and all emails referenc ed in correspondence of November 5, 2010, from Assistant Attorney General Ronald Weich to the Senate and House Judiciary Committees. In addi tion , CREW see ks all document s conc erni ng DOl' s efforts to recover ema ils from Mr. Yoo, including but not limi ted to efforts describ ed or reference d by Actin g Deputy Attorney General Gary Grindler in his February 26,20 10 testim ony before the Senate Judiciary Committee and his recentl y submitte d wr itten follo w-up to questi ons posed by the Committee. Please sea rch for responsive records regardless of format, medium, or physical characteristics. We seek records of any and all kind , including electronic records, audiotapes, videotapes, photographs, and computer print-outs. Our request includes any telephone messages, voice mail messages, and dail y agenda and calendars and info rm ation about scheduled meetin gs. If it is your position that any portion of the requ ested rec ord is exempt from disclosure, CREW requests that you provid e it with an index of tho se documents, as required under Vaughn v. Rosen, 484 F.2d 820 (D .C. Cir. 1973), cert. denied, 41 5 U.S . 977 (197 2). As you are awa re, a
1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005
Joan Lapara November 23,2010 Page Two
Vaughn index must describe each document claimed as exempt with sufficient specificity "to permit a reasoned judgment as to whether the material is actually exempt under FOIA." Founding Church ofScientology v. Bell, 603 F.2d 945, 959 (D.C. Cir. 1979). Moreover, the Vaughn index must "describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of supplying the sought-after information." King v. Us. Dep 't ofJustice, 830 F.2d 210,223-24 (D.C. Cir. 1987).
In the event that some portions of the requested record are properly exempt from disclosure, please disclose any reasonably segregable, non-exempt portions of the requested record. See 5 U.S.c. §552(b); Schiller v. Nat 'I Labor Relations Bd., 969 F.2d 1205, 1209 (D.C. Cir. 1992). If it is your position that a document contains non-exempt segments and that those non-exempt segments are so dispersed throughout the document as to make segregation impossible, please state what portion of the document is non-exempt, and how the material is dispersed through the document. Mead Data Central v. Us. Dep 't ofthe Air Force, 455 F.2d 242,261 (D.C. Cir. 1977). Claims of non-segregability must be made with the same detail as required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically that it is not reasonable to segregate portions of the record for release.
Fee Waiver Reguest
In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. § 16.11(k), CREW requests a waiver of fees associated with processing this request for records. The subject of this request concerns the operations of the federal government and expenditures, and the disclosures will likely contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. Moreover, the request is primarily and fundamentally for non-commercial purposes. 5 U.S.C. § 552(a)(4)(A)(iii). See, e.g., McClellan Ecological v. Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987). Specifically, the requested records are likely to contribute to the public's understanding of the nature of the destroyed emails of John Yoo, as referenced in the July 29,2009 OPR Report, "Investigation into the Office of Legal Counsel's Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of 'Enhanced Interrogation Techniques' on Suspected Terrorists," and the extent and timing ofDOJ's efforts to restore those emails. Disclosure of the volume and subject ofMr. Yoo's existing email records, whether in electronic or paper form, would inform the public about whether and to what extent the destruction of emails was limited to Mr. Y00' s role in drafting the terror memoranda and may have been the result of willful actions by Mr. Y00 or others, in violation of DOJ policy and federal laws. Disclosure of the efforts of DOJ to restore any of the missing emails would inform the public about whether and the extent to which DOJ and the attorney general have complied with their legal obligations under the Federal Records Act, and the timeliness ofDOJ's response to congressional inquiries on this matter. Finally, disclosure of the requested emails would allow the public to determine
Joan Lapara November 23,2010 Page Three
the appropriateness of DO]' s conclusion that none of the restored emails provides any basis to change the conclusion of Associate Deputy Attorney General David Margolis. CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal Revenue Code. CREW is committed to protecting the public's right to be aware of the activities of government officials and to ensuring the integrity of those officials. CREW is dedicated to empowering citizens to have an influential voice in government decisions and in the government decision-making process. CREW uses a combination of research, litigation, and advocacy to advance its mission. The release of information garnered through this request is not in CREW's financial interest. In addition, CREW will disseminate any documents it acquires from this request to the public through www.scribd.com and CREW's website, which also contains links to thousands of pages of documents CREW acquired from multiple FOIA requests. See www.citizensforethics.org. CREW's website includes documents relating to CREW's FOIA litigation, Internal Revenue complaints, and Federal Election Commission complaints Under these circumstances, CREW fully satisfies the criteria for a fee waiver.
News Media Fee Waiver Reguest
CREW also asks that it not be charged search or review fees for this request because CREW qualifies as a "representative ofthe news media" pursuant to the FOIA and SEC regulation 17 C.F.R. § 200.80(e)(l0). In Nat'[ Sec. Archive v. Us. Dep t ofDefense, 880 F.2d 1381,1386 (D.C. Cir. 1989), the Court of Appeals for the District of Columbia Circuit found the National Security Archive was a representative of the news media under the FOIA, relying on the FOIA's legislative history, which indicates the phrase "representative of the news media" is to be interpreted broadly; "[i]t is critical that the phrase 'representative of the news media' be broadly interpreted if the act is to work as expected. .., In fact, any person or organization which regularly publishes or disseminates information to the public ... should qualify for waivers as a 'representative of the news media.'" 132 Congo Rec. S14298 (daily ed. Sept. 30, 1986) (emphasis added), cited in id. CREW routinely and systematically disseminates information to the public in several ways. First, CREW maintains a frequently visited website, www.citizensforethics.org, that received 33, 453 visits in October 2010. The website reports the latest developments and contains in-depth information about a variety of activities of government agencies and officials. In addition, documents that CREW acquired through its FOIA requests and posted on www.scribd.org, have received 468,197 reads since April 14, 2010. Second, since May 2007 CREW has published an online newsletter, CREWCuts, that as of October 2010 has 17,322 subscribers. CREWCuts provides subscribers with regular updates
Joan Lapara November 23,2010 Page Four regarding CREW's activities and information the organization has received from government entities. A complete archive of past CREWCuts is available at http://www.citizensforethics.org/newsletter. Third, CREW publishes a blog, Citizens bloggingfor responsibility and ethics in Washington, that reports on and analyzes newsworthy developments regarding government ethics and corruption. The blog, located at http://www.citiznesforethics.org/blog. also provides links that direct readers to other news articles and commentary on these issues. CREW's blog had 1,089 hits in October. Finally, CREW has published numerous reports to educate the public about govermnent ethics and corruption. Examples include: The Revolving Door, a comprehensive look into the post-government activities of24 former members of President Bush's cabinet; 2009 Most Corrupt Members ofCongress; 2008 Top Ten Ethics Scandals; 2008 Most Embarrassing ReElected Members ofCongress; and Those Who Dared: 30 Officials Who Stood Up For Our Country. These and all other CREW's reports are available at http://vvvvw.citizensforethics.org/reports. Based on these extensive publication activities, CREW qualifies for a fee waiver as a "representative of the news media" under the FOIA and agency regulations.
Request for Expedition
Pursuant to 5 U.S.C. § 552(a)(6)(E)(I) and 28 C.F.R. § l6.5(d)(iv), CREW requests that DOJ expedite the processing of this request. As required by DOJ regulations, 28 C.F.R. § 16.5(d)(2), CREW is submitting its request for expedition to the director of Public Affairs. A copy of CREW's request is enclosed as Exhibit B. CREW also requests that DOJ expedite its request pursuant to 28 C.F.R. § 16.5(d)(ii). As explained above, CREW is engaged primarily in the dissemination of information that it gathers from a variety of sources, including the FOIA, and seeks the information requested in this FOrA request for the express purpose of disseminating it to the public. In addition to www.scrib.org that contains the documents CREW has acquired through the FOIA, CREW's website contains numerous examples of its efforts, including reports it has published based on information it receives through the FOIA. For example, CREW's report, "Record Chaos: The Deplorable State of Electronic Record Keeping in the Federal Government," was based in significant part on documents it requested under the FOrA from a variety of agencies, including DOl There is a particular urgency to inform the public about the circumstances underlying the destruction of the emails of former high-ranking OLC official John Y 00, especially given the
Joan Lapara November 23,2010 Page Five recent assertion by Assistant Attorney General Weich to the Senate and House Judiciary Committees that its review of recovered emails "that were not available to OPR during its investigation" gave it no reason to "change the conclusions of Associate Deputy Attorney General David Margolis as reflected in his Decision Memorandum." Even though DOJ quite obviously has completed its recovery efforts and review of this matter, it has yet to respond to a request from the National Archives and Records Administration, made in February of this year, to explain within 30 days the missing records, including a report if DOJ determines an unauthorized destruction occurred. Nor has DOJ responded to written questions to then Acting Deputy Attorney General Gary Grindler from the Senate Judiciary Committee following his February 26,2010 testimony before that Committee. The Committee's five follow-up questions ask the following: (1) has DOJ "opened a formal investigation into the circumstances surrounding the destruction of these e-mail records"; (2) "[w]hat steps is the Justice Department taking to retrieve the missing emails"; (3) whether DOJ will "determine whether the destruction of Mr. Y 00' sand Mr. Philbin's e-mails violated any criminal statutes"; (4) whether DOl's inspector general will "be a part of this investigation"; and (5) whether DOJ will "determine whether Mr. Y 00 used a second e-mail address - including a nongovernmental e-mail - to communicate with officials from the White House." Despite the passage of nearly nine months, the DOl's only response to date has been to inform the Committee that the review commissioned by Mr. Grindler "is nearing completion." The inconsistency of these messages - that DOJ, on the one hand, is ready to conclude there is nothing in the recovered Y 00 emails to change the conclusions of the OPR Report and, on the other hand, cannot yet answer any questions about their destruction - raises a serious question about whether the Department is attempting to cover up the truth behind the missing emails and whether it has complied with its obligations under the Federal Records Act. Under these circumstances, the public has a pressing need for the information contained in the documents CREW is requesting. Pursuant to 28 C.F.R. § 16.5(d)(3), I hereby certify that the basis for CREW's request for expedition, as outlined above, is true and correct to the best of my knowledge and belief. If you have any questions about this request or foresee any problems in releasing fully the requested records, please contact me at (202) 408-5565. Also, if CREW's request for a fee waiver is not granted in full, please contact our office immediately upon making such
Joan Lapara November 23,2010 Page Six determination. Please send the requested records to Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, 1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005.
Anne L. Weismann Chief Counsel Enclosures cc: Matthew Miller
U.S. Department of Justice
Civil Division Federal Programs Branch 20 Massachusetts Avenue N.W. Rm 7214 Washington, DC 20530
Jacqueline Coleman Snead Senior Counsel
Tel: (202) 514-3418 Fax: (202) 616-8470
November 18, 2010
FOR SETTLEMENT PURPOSES ONLY
VIA ELECTRONIC MAIL AND FIRST-CLASS, U.S. MAIL Anne Weismann, Esq. Citizens for Responsibility and Ethics in Washington 1400 Eye Street, N.W., Suite 450 Washington, DC 20005 Re: Dear Anne: This letter responds to your offer to dismiss the above-referenced lawsuit if the Office of Legal Counsel ("OLC") explains how and where it located the emails responsive to your Freedom of Information Act ("FOIA") request for emails to or from former Deputy Assistant Attorney General John Yoo between June 2001 and May 2003. As explained in OLC's partial responses to your FOIA request dated August 31, 2010 and September 30, 2010, OLC conducted a search of only the paper and electronic records of Mr. Yoo that OLC retained. Upon an attorney's departure, OLC generally retains a copy of the existing electronic files in a "Departed Users" folder (containing subfolders arranged by name) in a networked directory labeled "OLe," which OLC can access. OLC generally retains hard copy files left by an attorney in boxed storage. In response to your FOIA request, OLC retrieved the several boxes labeled with Mr. Yoo's name from storage and located the "jyoo" folder in the "Departed Users" folder. The boxes and that computer folder were searched for emails within the time period specified in your FOIA request. I OLC has described the results ofthat search in letters dated August 31, 2010 and September 30, 2010 and in the draft Vaughn index provided October 15,2010.
CREW v. Department ofJustice, Case No.1 0-750
1 As explained in its letter dated August 31, 2010, OLC discovered the folder of another former OLC attorney in Mr. Yoo's retained email files; that folder was reviewed as well for responsiveness to CREW's FOIA request.
-2Although the above explanation is all the consideration you requested for dismissing the instant lawsuit, I would like to respond to an implicit question in your November 10,2010 email to me, in which you mention "a recent AP article" that referenced '''newly found e-mails' sent by John Yoo." While you did not provide a copy of the article, I did find that phrase in an AP posting from November 9, 2010. The emails referenced in that article were not located in files retained and searched by OLC. OLC's search, as described above and explained previously, was limited to records retained by OLC and did not include "any paper or electronic records of Mr. Y00' s emails available elsewhere in the Department." See Letter to Anne Weismann from Paul Colborn (Sept. 30,2010). The Department informed the Senate Judiciary Committee during a February 26,2010 hearing that the Assistant Attorney General for Administration was working with Department information technology experts to determine whether any ofMr. Yoo's emails (other than those OLC retained) were recoverable. The Justice Management Division is the custodian of those recovered emails. I trust that based on this information, you will agree to dismiss this lawsuit with each party to bear its own costs, and I will work with you to facilitate that voluntary dismissal. In the event that you decide to litigate the adequacy ofOLC's search, then I suggest we discuss a briefing schedule and submit ajoint proposed schedule to the Court. I look forward to hearing from you soon.
COLEMAN SNEAD Senior Counsel Federal Programs Branch Civil Division
citizens for responsibility and ethics in washington
By Fax (202-514-5331) and First-Class Mail
Matthew Miller Director Office of Public Affairs U.S. Department of Justice Room 1128 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 Re: FOIA Request for Expedition Dear Mr. Miller: Pursuant to U.S. Department of Justice (DOJ) Freedom ofInformation Act (FOIA) regulations, specifically 28 C.F.R. § l6.5(d)(2), Citizens for Responsibility and Ethics in Washington (CREW) requests that you grant its request for expedition of the enclosed FOIA request of this date. CREW's request seeks copies of all emails to or from former Assistant Attorney General John Yoo over which the Justice Management Division (JMD) has custody. CREW also seeks all documents concerning DOl's efforts to recover emails from Mr. Yoo. CREW requests expedition in light of the widespread and exceptional media interest in this matter and the questions that have been raised about the circumstances under which the emails of Mr. Y00 were destroyed, the extent to which DOJ has attempted to restore the missing emails, and DOl's continuing failure to answer inquiries about this matter from Congress and the National Archives and Records Administration. Just recently Assistant Attorney General Ronald Weich advised the House and Senate Judiciary Committees that DOJ had review recovered emails not available to OPR when it conducted its investigation into the actions of Mr. Y00 and others in drafting the now discredited OLC torture memos, and saw no reason to change Associate Deputy Attorney General David Margolis' conclusions as reflected in his Decision Memorandum. But DOJ has refused to make those recovered emails available for public review and has yet to answer longstanding questions from Congress about the missing emails. Please note that CREW's prior request for expedition of its February 26, 2010 FOIA request related to this matter was granted. Similarly, expedition is warranted here. Moreover, as CREW explained it is FOIA request, CREW is a non-profit organization
1400 Eye Street, N.W., Suite 450, Washington, D.C. 20005
Matthew Miller November 23,2010 Page Two engaged primarily in disseminating information it gathers from a variety of sources, including the FOIA, and seeks information requested in this FOIA request for the express purpose of disseminating it to the public. CREW's website, www.citizensforethics.org, contains links to thousands of pages of documents CREW acquired from multiple FOIA requests, as well as documents related to CREW's FOIA litigation, other complaints, and CREW reports based in part on documents acquired through the FOIA. Similarly, CREW posts documents received through the FOIA on www.scribd.org, and its documents have received 468,197 visits since April 14, 2010. For the foregoing reasons as well as those set forth in CREW's FOIA request of November 18,2010, CREW requests that you grant its request for expedition. Pursuant to 28 C.F.R. § 16.5(d)(3), I hereby certify that the basis for CREW's request for expedition is true and correct to the best of my knowledge and belief. Sincerely,
Anne L. Weismann Chief Counsel Enclosure