State/OIG to Review Use of Special Government Employees (SGE), Conflicts of Interest Safeguards

Posted: 2:20 am EDT

 

Back in 2013, we blogged about the State Department Special Government Employees:  Who Are the State Dept’s 100 “Special Government Employees”? Dunno But Is Non-Disclosure For Public Good? and this: State Dept refused to name its SGEs because of reasons #1, #2, #3, #4 and … oh right, the Privacy Act of 1974:

At that time, there was a message from Mission Command:

“Good morning, Mr. Hunt (or whoever is available). Your mission, should you choose to accept it, involves the retrieval of all Special Government Employee (SGE) names. There are more than a hundred names but no one knows how many more.  They are padlocked in the Privacy Act of 1974 vault, guarded by a monstrous fire-breathing creature from Asia Minor. PA1974 vault location is currently in Foggy Bottom.  As always, should you or any member of your team be caught or killed, everybody with a badge will disavow all knowledge of your actions. This message will self-destruct in five seconds.  If not, well, find a match and burn.”

Teh-heh!

In January 2014, without Mr. Hunt, the State Department finally released its SGE list as reported by ProPublica here . ProPublica  concluded then that “the list suggests that the status is mostly used for its intended purpose: to allow outside experts to consult or work for the government on a temporary basis.” Which makes one wonder why it wasn’t readily released in the first place.

The recent Clinton email debacle, revived interest on Secretary Clinton’s use of the SGE program that allowed some political allies to work for the government while pursuing private-sector careers. In March, Sen. Charles E. Grassley (R-Iowa), who heads the Judiciary Committee was on it.

Via WaPo:

“The public’s business ought to be public with few exceptions,” Grassley said in a statement Saturday. “When employees are allowed to serve the government and the private sector at the same time and use private email, the employees have access to everything and the public, nothing.”

Senator Grassley’s request to the State Department, apparently not yet answered, is available here.

Last week, Senator Grassley received confirmation that the State Department Office of Inspector General will review the department’s use of the Special Government Employee program. Below is part of Senator Grassley’s statement:

“This program is meant to be used in a limited way to give the government special expertise it can’t get otherwise,” Grassley said.  “Is the program working the way it’s intended at the State Department or has it been turned on its head and used in ways completely unrelated to its purpose?   An independent analysis will help to answer the question.  An inspector general review is necessary. Available information suggests that in at least one case, the State Department gave the special status for employee convenience, not public benefit.”

In response to Grassley’s request, State Department Inspector General Steve Linick confirmed his office “intends to examine the Department’s SGE program to determine if it conforms to applicable legal and policy requirements, including whether or not the program, as implemented, includes safeguards against conflicts of interest.”

Grassley is concerned about potential conflicts of interest arising from a top State Department employee, Huma Abedin, who worked for both the government as a Special Government Employee and an outside firm, Teneo, at the same time.

More about Ms Abedin’s consulting work here.  Senator Grassley’s request to IG Linick is available here.  IG Linick’s response to Senator Grassley is available here.

You get the feeling that State/OIG is the most wanted office in WashDC these days?

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LittleSis: HRC Complex Corporate Ties

Posted: 10:37 am EDT

 

“…our problems have never respected dividing lines between global economics and international diplomacy. And neither can our solutions. That is why I have put what I call economic statecraft at the heart of our foreign policy agenda.”
Secretary of State Hillary Rodham Clinton

 

Of the 425 large corporate donors to the Clinton Foundation, the Wall Street Journal found 60 of those donors lobbied the State Department during Hillary Clinton’s tenure. Excerpt:

Mrs. Clinton’s spokesman, Nick Merrill, says: “She did the job that every secretary of state is supposed to do and what the American people expect of them—especially during difficult economic times. She proudly and loudly advocated on behalf of American business and took every opportunity she could to promote U.S. commercial interests abroad.”

Corporate donations to politically connected charities aren’t illegal so long as they aren’t in exchange for favors. There is no evidence of that with the Clinton Foundation.

In some cases, donations came after Mrs. Clinton took action that helped a company. In other cases, the donation came first. In some instances, donations came both before and after. All of the companies mentioned in this article said their charitable donations had nothing to do with their lobbying agendas with Mrs. Clinton’s State Department

A project of the Public Accountability Initiative. More about LittleSis. Read the disclaimer.
Related items:

Email Episode 1472: No Dust Left on Chappaqua Server?

Posted: 11:28 pm PDT

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The New York Times also posted the letter from the former secretary of state’s lawyer David E. Kendall to House Chairman Trey Gowdy.  Excerpt below:

There is no basis to support the proposed third-party review of the server that hosted the hdr22@clintonemail.com account. During the fall of 2014, Secretary Clinton’s legal representatives reviewed her hdr22@clintonemail.com account for the time period from January 21, 2009 through February 1, 2013. After the review was completed to identify and provide to the Department of State all of the Secretary’s work-related and potentially work-related emails, the Secretary chose not to keep her non-record personal e-mails and asked that her account (which was no longer in active use) be set to retain only the most recent 60 days of e-mail. To avoid prolonging a discussion that would be academic, I have confirmed with the Secretary’s IT support that no e-mails from hdr22@clintonemail.com for the time period January 21, 2009 through February 1, 2013 reside on the server or on any back-up systems associated with the server.

Page 8 of this 9-page document includes a letter from the State Department’s Under Secretary for Management Patrick Kennedy:

We understand that Secretary Clinton would like to continue to retain copies of the documents to assist her in responding to congressional and related inquiries regarding the documents and her tenure as head of the Department. The Department has consulted with the National Archives and Records Administration (NARA) and believes that permitting Secretary Clinton continued access to the documents is in the public interest as it will help promote informed discussion.

Accordingly, Secretary Clinton may retain copies of the documents provided that: access is limited to Secretary Clinton and those directly assisting her in responding to such inquiries; steps are taken to safeguard the documents against loss or unauthorized access; the documents are not released without written authorization by the Department; and there is agreement to return the documents to the Department upon request. Additionally, following counsel, we ask that, to the extent the documents are stored electronically, they continue to be preserved in their electronic format. In the event that State Department reviewers determine that any document or documents is/are classified, additional steps will be required to safeguard and protect the information.

The  entire Kendall-Gowdy letter is available to read here.

Because it’s Friday, there is also this item from Gawker and ProPublica adding a stranger twist to this  email saga.

 

 

In related news, remember when Michael Schmidt broke the NYT story about  Secretary Clinton’s exclusive use of a personal email account during her entire tenure as Secretary of State? That was on March 2.  On March 25,  Secretary Kerry finally asked the Office of Inspector General to review email and record retention at his agency.  The letter Secretary Kerry sent to IG Steve Linick is available to read here (pdf).

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I don’t know about you but … it’s that kind of week.

Greys-Anatomy perfectedflaw

Image: Tumblr, perfectedflaw via Mashable

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Keeping Up With the State Department Spox’s Explainer on the Clinton Separation Statement

Posted: 12:42 am EDT

 

The hunt for Secretary Clinton’s OF-109 Separation Statement was all over the news last week, although it seemed, oh, so much longer.  Fox News was searching for it. The Daily Caller found a whistleblower who alleged double standard.  Media Matters  called out the conservative media’s own double standard. Add the official spokesperson of the State Department and we got a free roller coaster ride plus coupons.

It looks like 12 FAM 564.4 is the relevant regulation um, excuse me, “recommendation” in the Foreign Affairs Manual. Waiting for the spox to clarify that although the briefing is mandatory, signing the separation statement is really optional and voluntary!

12 FAM 564.4 Termination
(TL:DS-88; 02-13-2003) (Uniform State, AID, OPIC, TDP)
a. A security debriefing will be conducted and a separation statement will be completed whenever an employee is terminating employment or is otherwise to be separated for a continuous period of 60 days or more. The debriefing is mandatory to ensure that separating personnel are aware of the requirement to return all classified material and of a continuing responsibility to safeguard their knowledge of any classified information. The separating employee must be advised of the applicable laws on the protection and disclosure of classified information (see 12 FAM 557 Exhibit 557.3) before signing Form OF-109, Separation Statement (see 12 FAM 564 Exhibit 564.4).

 

Via DPB, March 17, 2015 with State Department Spokesperson Jennifer Psaki:

QUESTION: So when you say – it is my understanding that all employees – and I think you even alluded to this when it first came up, that all employees were required to sign this document on completion of their government service. Is that not the case?

MS. PSAKI: Required is not the accurate term. It’s – we’re looking into how standard this is across the federal government and certainly at the State Department. But there’s no – we’re not aware of any penalty for not signing it.

QUESTION: Well, at the State Department, though, is it – it is common practice, though, is it not, for employees, at least employees below the rank of Secretary of State to sign such a thing – to sign such a document when they leave? Is it not?

MS. PSAKI: Well, I just don’t want to characterize how common practice it is. Certainly, I understand there’s been a focus on this form. We’ve answered the question on whether or not Secretary Clinton signed the form, and we’ll see if there’s more statistics we can provide about how common it is.

QUESTION: It’s your understanding, though, that not completing this form is not a violation of any rule or regulation?

MS. PSAKI: It’s not a violation of any rule, no.

QUESTION: And when you said that you have found no record of her two immediate – was it her two immediate predecessors?

MS. PSAKI: Correct.

 

Continue reading

Clinton Email Saga: How do you CTRL+F 55,000 pages of paper?

Posted: 12:43  am EDT

 

Marc Perkel who runs a spam filtering service has an interesting addition to the Clinton email saga, something to do with what happens to emails that go through a  spam filtering service.  But he also wrote this:

But – and this is a very important point – is HOW the emails were turned over. She printed each one out on paper one by one and handed over boxes of paper with the email printed. Thus those email can’t be searched electronically. So if someone wants all emails to some individual or emails about a subject then someone has to hand search these emails and they are likely to miss something.

It would have been far easier to copy all the emails onto a thumb drive and hand that over to the State Department where they could be electronically imported into the system and electronically searchable like all the other emails are. But she chose to go to great trouble to deliberately make things difficult for the State Department to process those emails.  And that indicates an act of bad faith. She’s just giving all of us the virtual finger.

This from a a guy who writes that if Clinton is the candidate,  he “would still vote for her in the general election over any Republican.”

Also see  Attn: Delivery Man Schlepping Boxes With 55,000 Pages of Emails to Foggy Bottom, You’re Wanted at the Podium! (Corrected)

When asked why these documents were not provided to State in electronic format for better searchability, the official spox said, “Well, there is some long precedent here for how this is done.”  I don’t know what kind of precedent she is talking about.  Has anyone ever had to produce  55,000 pages of emails before from a private email server? How do you search that? Control+D for smart not?

This is basically 110 reams of paper at 500 sheets per ream, or 11 bales of paper.  And if the Clinton folks instead used a thumb drive for these 55,000 pages of email, it probably could have spared a tree or two!

Reseed’s strategy is prevention and remediation — not only can we curb deforestation by encouraging consumers and retailers to adopt e-receipts, but we can also reverse some of the damage with the money saved. Forgoing 55,000 receipts can spare an entire tree, and it only takes a dollar in donations for Reseed to plant a tree.

Going Paperless: The Hidden Cost of a Receipt
Part of a series produced by The Huffington Post and the Clinton Global Initiative 

Oy! What’s that?

The ACLU writes that the politics swirling around the Clinton email scandal obscure real problems:

As the Committee for Responsibility and Ethics in Washington has documented at length, various Bush White House officials used Republican National Committee accounts to communicate with Attorney General Alberto Gonzales in what would become the scandal over the hiring and firing of United States attorneys that the Department of Justice later found to be the inappropriately politicized.

The decision by Secretary Clinton to use “clintonemail.com” exclusively for official business disregards these historical examples. Unfortunately, officials can face the strong temptation to hide official business out of the reach of Freedom of Information Act requests. And as the new retention rules recognize, that’s unacceptable for our democracy.

 

On March 17, twelve open government organizations also wrote a letter to Secretary Kerry and David S. Ferriero, the Archivist of the United States asking that the Clinton emails containing federal records be transferred to the Department of State in their original electronic form:

Because it is of the utmost importance that all of former Secretary Clinton’s emails are properly preserved and transferred back to the State Department for accountability and historical record purposes, we are asking that you verify that Secretary Clinton’s emails containing federal records are transferred to the Department of State in their original electronic form, so that all such emails may be accessible pursuant to the Freedom of Information Act. The Archivist and State Department are authorized by the Federal Records Act to seek the recovery of records that may have been improperly removed, and the task of determining which emails constitute federal records should not be left solely to Mrs. Clinton’s personal aides. Rather, the Archivist and State Department should oversee the process to ensure its independence and objectivity. To the extent that it is ascertained that any record emails were deleted, they should be retrieved if technically possible.

The letter available online here (pdf) was signed by Cause of Action, Defending Dissent Foundation, Electronic Frontier Foundation, MuckRock, National Coalition for History, National Security Archive, National Security Counselors, OpenTheGovernment.org, Pirate Times, Project on Government Oversight (POGO),  Society of Professional Journalists and The Sunlight Foundation.

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Ex-Chief Information-Disclosure Guru on Hillary’s Email Defense and the Folks Asleep at the Switch

Posted: 12:40  am EDT

 

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Dan Metcalfe spent more than thirty years working at the U.S. Department of Justice where he served from 1981 to 2007 as director of the Office of Information and Privacy. He was responsible for overseeing the implementation of the FOIA throughout the entire executive branch. He now teaches secrecy law at American University’s Washington College of Law. His deconstruction of the former secretary of state’s explanation on her exclusive use of private email is probably the best one we’ve seen so far. There is also an analysis here from the National Security Archive.

Below is an excerpt from the op-ed piece Mr. Metcalfe wrote for Politico:

[T]here is the compounding fact that Secretary Clinton did not merely use a personal email account; she used one that atypically operated solely through her own personal email server, which she evidently had installed in her home. This meant that, unlike the multitudes who use a Gmail account, for instance, she was able to keep her communications entirely “in house,” even more deeply within her personal control. No “cloud” for posterity, or chance of Google receiving a congressional subpoena—not for her. No potentially pesky “metadata” surrounding her communications or detailed server logs to complicate things. And absolutely no practical constraint on her ability to dispose of any official email of “hers,” for any reason, at any time, entirely on her own. Bluntly put, when this unique records regime was established, somebody was asleep at the switch, at either the State Department or the National Archives and Records Administration (which oversees compliance with the Federal Records Act)—or both.

[…] as Secretary Clinton might like to claim personal “credit” for this successful scheme when talking with her friends about it within the privacy of her own home—perhaps while leaning against her private Internet server in her basement—the fact is that she didn’t invent this form of law circumvention; she just uniquely refined it. Yes, it was the Bush administration—specifically, the White House Office of Administration in concert with Vice President Dick Cheney, Karl Rove and the Republican National Committee—that likewise succeeded with wholesale email diversion back in the pre-smartphone days of freewheeling Blackberry usage.

Unfortunately for all of us, the competition for perverse “honors” in the world of circumventing both the letter and the spirit of federal records laws is indeed quite stiff.

Read more here in Politico Magazine.

An internet security expert tells Quartz  that a home server is “kind of like putting your money in your mattress.”

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It did, did’t it? Lockbox.

Then there’s this guy who in 1994 was a 22 year old who worked as a computer programmer for a company called Information Management Consultants tasked with sorting through presidential docs in 1993.  He wondered if the Clinton team included technical wizards who designed a flawless keyword search when combing through her emails:

If so, she should release technical documentation of the search algorithm, the test procedure, and the test results — assuming they tested it. Without that information, we have no basis for sharing Hillary Clinton’s “absolute confidence” that the State Department has received all her work-related email communication.

Hey, wouldn’t it be nice to know who should get a large medal for being asleep at the switch at the State Department on this? Asleep at the switch doesn’t sound very good but perhaps it is a kinder version for whatever it was that happened at HST.

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VIDEO: Late-night laughs: Hillary Clinton E-mail Edition

 Posted: 2:52 am EDT

Via PostTV

Hillary Clinton caused controversy after reports revealed she used a private e-mail account during her time as secretary of state. Late-night hosts Jon Stewart, Seth Meyers and Jimmy Fallon couldn’t resist a few jokes at her expense.

 

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Former Secretary Clinton talks about her state.gov private emails

Posted: 01:11 am  EDT

 

Excerpt from the transcript of Hillary Clinton’s remarks on the email controversy swirling about via Time’s @ZekeJMiller:

There are four things I want the public to know.

First, when I got to work as secretary of state, I opted for convenience to use my personal email account, which was allowed by the State Department, because I thought it would be easier to carry just one device for my work and for my personal emails instead of two.

Looking back, it would’ve been better if I’d simply used a second email account and carried a second phone, but at the time, this didn’t seem like an issue.

Second, the vast majority of my work emails went to government employees at their government addresses, which meant they were captured and preserved immediately on the system at the State Department.

Third, after I left office, the State Department asked former secretaries of state for our assistance in providing copies of work- related emails from our personal accounts. I responded right away and provided all my emails that could possibly be work-related, which totalled roughly 55,000 printed pages, even though I knew that the State Department already had the vast majority of them. We went through a thorough process to identify all of my work- related emails and deliver them to the State Department. At the end, I chose not to keep my private personal emails — emails about planning Chelsea’s wedding or my mother’s funeral arrangements, condolence notes to friends as well as yoga routines, family vacations, the other things you typically find in inboxes.

No one wants their personal emails made public, and I think most people understand that and respect that privacy.

Fourth, I took the unprecedented step of asking that the State Department make all my work-related emails public for everyone to see.

I am very proud of the work that I and my colleagues and our public servants at the department did during my four years as secretary of state, and I look forward to people being able to see that for themselves.

Again, looking back, it would’ve been better for me to use two separate phones and two email accounts. I thought using one device would be simpler, and obviously, it hasn’t worked out that way.

 

The Clinton folks have also released a Q&A on her email use:

 

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So if we tell over 70,000 employees that they should secure their email accounts and “avoid conducting official Department business from your personal email accounts,” then we go off and use our own private non-government email, what leadership message are we sending out to the troops?  Follow what I say not what I do?

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The secretary of state is the highest classifying authority at the State Department. Since she did not have a state.gov account, does this mean, she never sent/receive any classified material via email in the entirety of her tenure at the State Department? If so, was there a specific person who routinely checked classified email and cable traffic intended for the secretary of state?

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The podium heads insist that there is no restriction in use of private emails. Never mind that this is exclusive use of private emails. If a junior diplomat or IT specialist sets-up his/her own email server to conduct government business at the home backyard shed in Northern Virginia, do you think Diplomatic Security would not be after him or her? Would he/she even gets tenured by the Tenuring Board despite systems management practices contrary to published guidelines?  If the answer is “yes,” we’d really like to know how this works. For ordinary people.

And then there’s this — if there were a hundred people at State that the then secretary of state regularly sent emails to, was there not a single one who said, “wait a minute’ this might not be such a great idea?

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Bottomline despite this brouhaha? Her personal email server will remain private. She has full control over what the public get to see. End of story. Or maybe not.

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Oops, what’s this? Oh, dear.

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Attn: Delivery Man Schlepping Boxes With 55,000 Emails to Foggy Bottom, You’re Wanted at the Podium! (Corrected)

Posted: 12:04 am EST
Corrected title: 12:37 am EST

Hurrrrrrry!

The exchange below, courtesy of state.gov:

QUESTION: Okay. Can you say whether you will wait until the review of all 55,000 pages is done before you release any, or will you look at one and say, “Okay, this one is okay,” and then turn it over?

MS. PSAKI: I would not anticipate we release page by page, but I don’t have any prediction for how the process will run at this point in terms of the public release.

QUESTION: And did you ever get the answer – and I – you may have, I don’t know; and I apologize because I wasn’t here – whether these were handed – were given to you by her office electronically or in paper?

MS. PSAKI: In paper.

QUESTION: So they pulled up a backloader or something into the – (laughter) – I mean, what did they come in with, a truck full of – 55,000 pages is a lot, so —

MS. PSAKI: That is a lot, yes.

QUESTION: So I’m just curious, were they boxed up? Were they – are they just all jumbled together? Are they in order of date or by topic?

MS. PSAKI: There were several boxes back —

QUESTION: Several?

MS. PSAKI: Yes.

QUESTION: 55,000 pages, several boxes? (Laughter.)

MS. PSAKI: That is quite a few boxes, which speaks to – it did cover – these do cover the span of her time at the State Department. In terms of what the boxes look like or the order, I don’t have that level of detail.

QUESTION: Okay. But I mean, you believe – and you’re taking them at their word that they separated out all of the emails from her private account that are business related, and that that 55,000 pages is the universe but – and you think that they’ve been cooperative. So that would imply that you don’t think that they just dumped them in all in a box willy-nilly – or boxes – and gave them to you.

I mean, how exactly is this review going about? Is it chronological? Are you just picking up a box – or whoever’s doing it – just picking up one box here and going through this? I’m just wondering if there’s any order or system to —

MS. PSAKI: I certainly understand your questions. Because this is just underway – obviously, this is new as of last week, as you just outlined in your question – I don’t have anything at this point to outline in terms of the order of the process. If there’s more details, I’m sure we can share those.

QUESTION: I believe the question came up last week about whether IRM, your Information Resources Management people, or DS had taken a look at the arrangements that she had at her home in Chappaqua and determined that they were okay and not – that they met standards for not being compromised.

MS. PSAKI: It did come up last week. I don’t have any update on that at this point.

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Snapshot: State Dept FY2014 FOIA Personnel and Costs

Posted: 9:46 am EST

 

Via FY 2014 FOIA Annual Report:

During this fiscal year the Department experienced a 60 percent increase in FOIA lawsuits over fiscal year 2013. The majority of new lawsuits involved voluminous sensitive records that required careful coordination with other federal agencies. To meet the demands of this upswing in FOIA lawsuits, the Department reallocated resources from FOIA processing to FOIA litigation, which directly impacted efforts to manage and reduce the backlog of pending FOIA requests that are not in litigation.

Despite all efforts, including employing best practices established during the successful backlog reduction project in fiscal year 2013 as well as processing over 88 percent of the thousands of referrals that were pending from last fiscal year and received by the Department this fiscal year, the FOIA request backlog rose by 15.8 percent this fiscal year. However, the Department achieved a significant reduction in the FOIA appeal backlog lowering the backlog by 13.7 percent. The Department also closed its ten oldest requests and consultations. These accomplishments are especially noteworthy in light of the fact that the Department reallocated FOIA processing resources to address large, complex FOIA litigation cases and to provide assistance to the Department on significant special document productions throughout the fiscal year.

Note that the number of FOIA requests and administrative appeals backlogs at the end of FY2014 (September 30,2014) is 10,045 or 1,376 cases more than FY2013. Processing of simple FOIA cases can take anywhere between 3 days to 1,576 days or 4.3 years. Processing complex cases can take anywhere between 11 days to 2,237 days or 6.1 years. The average number of days for processing expedited FOIA cases is 385.6 days. (see pdf)

In the table below, the “Equivalent Full-Time FOIA Employees” include When Actually Employed (WAE) former Foreign Service Officers who perform document review and students who work part-time throughout the year to process FOIA requests. Note that the breakdown of personnel does not identify exactly how many WAE and how many students are working FOIA cases, only that they are equivalent to “full-time employees.”  WAE employees have no regularly scheduled tour of duty and the hours worked cannot exceed 1,040 in a calendar year. As for the students, we don’t know how many students rotate through the FOIA office requiring training every year.   Also useful to know that each bureau has its own WAE application and appointment procedures and the ability to hire is limited by the bureau’s budgets.

Screen Shot 2015-03-08

According to the annual report, the processing costs below include “a percentage of the costs incurred by IT staff who were employed to support the FOIA program as one of their major duties”  The IT staffing numbers are not reflected in personnel data column so we also have no idea how many IT staff supports the FOIA office.

Screen Shot 2015-03-08

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In related news:

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