consultants are sandburs

Saturday, March 21, 2015

A FOIA loophole you can drive a truck through.

USA Today reports:

Meantime, the Justice Department said this week that it shouldn't be required under the Freedom of Information Act to provide e-mails from Clinton that were sent from or received by her private account. Government lawyers said in a filing to a federal appeals court late Thursday that the FOIA law "creates no obligation for an agency to search for and produce records that it does not possess and control."

The Justice Department acted on the State Department's behalf in a lawsuit by Freedom Watch, a conservative group led by Larry Klayman, who has filed dozens of lawsuits against the Clintons in the past. Klayman asked the U.S. Court of Appeals for the D.C. Circuit to hold the former secretary and top aide Cheryl Mills in criminal contempt in relation to its request for documents.

Klayman says the court also should issue a subpoena for the seizure and production of the computer file server that was used to store and process Clinton's emails. The Justice Department said the requests should be denied.

From The Hill, there is parallel reporting of the argument that the Justice Department, in representing the State Department, argues the FOIA is specific in its terms of surrender of what is in an agency's custody and control:

The Justice Department describes Klayman’s call for a subpoena as “speculation” in its brief.

“Plaintiff provides no basis, beyond sheer speculation, to believe that former Secretary Clinton withheld any work-related emails from those provided to the Department of State,” the agency says.

The filing, first reported by Politico, is the first time that the Justice Department has addressed the government’s role in accounting for Clinton’s private emails.

The agency says that the Freedom of Information Act “creates no obligation for an agency to search for and produce records that it does not possess and control.”

Justice also criticized Klayman’s motion to hold Clinton and her former State Department aide Cheryl Mills in contempt.

Klayman initially filed the suit challenging the State Department, which he claims did not adequately respond to his FOIA request for documents relating to Iran sanctions.

A district court ruled against Klayman in January, but he filed an updated appeal Clinton's use of the private email account and server surfaced. Klayman claims that by keeping her emails off of public servers, Clinton and the State Department obstructed justice.

The Justice Department said that the State Department plans to review the records Clinton turned over and will give Klayman any emails related to his request.

Bolding and link as posted are from the original Hill text.

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