By Josh Gerstein • Politico
A federal judge is lashing out at the State Department for delaying for years in providing responses to Associated Press Freedom of Information Act requests seeking records about former Secretary of State Hillary Clinton’s schedules and her top staffers.
At a contentious hearing last week, U.S. District Court Judge Richard Leon demanded explanations for why some of the AP’s requests received no reply for four years or more before the wire service filed suit in March.
Leon said he was determined to establish “what has been going on in the State Department for four years dragging their feet, not addressing these issues for four years.”
“I want to find out what’s been going on over there. I should say, what’s not been going on over there,” the judge added. “The State Department, for reasons known only to itself … has been, to say the least, recalcitrant in responding.”
Justice Department lawyers representing State said a surge in FOIA requests caused large backlogs at the agency. They also said State is struggling with a wave of lawsuits since the disclosure in March that Clinton exclusively used a private email server during her service as secretary. In December, she returned 55,000 pages of emails at her former agency’s request.
DOJ lawyers Lisa Ann Olson and Marcia Berman said the agency was prioritizing the public release of the 55,000 pages of emails in response to another judge’s order requiring monthly releases of those records.
However, Leon accused Olson of responding with “convoluted gobbledygook” when she insisted that the State Department’s processing of those emails would satisfy the AP’s request for records about Clinton Deputy Chief of Staff Huma Abedin’s transition to a special part-time position at State.
“The State Department … can’t say it has done a thorough search until it reviews all 55,000 pages of documents,” Olson said.
“What you just said, Ms. Olson, made no sense,” the judge replied. “You’re failing to distinguish between documents created by the State Department independently of Hillary Clinton’s emails — with Hillary Clinton’s emails. And you’re giving me some kind of convoluted gobbledygook. about how the emails contain within them the independently created documents relating to Huma Abedin’s appointment as a special government counsel. …That is nonsensical.”
Olson noted that the AP request about Abedin did seek Clinton’s emails on that topic. However, the request also sought all other records or correspondence as well.
A transcript of the hearing suggests Leon grew angry when Olson said she had no estimate of how many State Department documents were responsive to the request about Abedin’s employment.
“Have it by next week. Have it by next week when we have our hearing. Do you hear me?” the judge snapped. He also ordered the State official responsible for FOIA handling to appear at the planned hearing.
Olson said State hadn’t produced such an estimate previously because it was tied up with the production of records in the suit filed by Vice News reporter Jason Leopold seeking all the Clinton emails.
“In order to come up with an estimate, the State Department will have to divert resources from the other Leopold search. It has limited resources, an amazingly limited number of people,” Olson said.
Leon, an often-irascible George W. Bush appointee, said he saw no reason the AP should have to wait because of the more recent request from Leopold.
“The State Department’s not going to have the luxury of saying, because we’re focusing on Hillary’s emails, we’re doing so at the cost and expense of four-year-old requests. So, that’s not going to be an excuse,” the judge said. “In my judgment, a four-year-old request gets a priority over a recent request.”
Both the State Department and the Justice Department declined to comment on the hearing or the pending lawsuit.
A lawyer for the AP, Jay Ward Brown, told Leon that the wire service was trying to find out what Abedin did during her time as a “special government employee.” However, the judge was also curious about what Abedin does currently.
“Where is she now, this Huma person? … Did you Google her? … Have you done LinkedIn?” asked Leon. “You’ve got to check out on the social-media scene to see what she’s doing.”
Brown said that the press reports “extensively on her personal life” and that she has “some involvement” in politics but said he wasn’t clear exactly what.
Abedin is currently vice chairman of Clinton’s presidential campaign.
Leon has been at odds with the Obama administration in several notable cases recently. He declared the National Security Agency’s collection of U.S. phone records likely unconstitutional. He blocked the administration’s issuance of a rule to expand overtime pay for household workers and health care aides. And he ordered Agriculture Secretary Tom Vilsack to sit for a deposition in a libel lawsuit brought by fired Ag official Shirley Sherrod.
The order to Vilsack was overturned by a federal appeals court. The other two rulings remain on appeal.
Despite Leon’s amazement at the four-year delay in the AP’s FOIA requests to State, the wire service is not alone. A request POLITICO filed in November 2009 about State’s approval process for former President Bill Clinton’s paid speeches and business deals didn’t produce any records until February 2014. The agency began to release records only after a conservative group, Judicial Watch, filed suit over a similar request.