Congress Threatens to Benghazimazi State Dept Funding Over Clinton Emails

Posted: 1:01 am EDT

 

First, the State Department told the court that the Clinton emails won’t be released until next year.

But US District Court Judge Rudolph Contreras rejected the proposal and ordered to State Department to get on with it on a rolling basis.

And then — oh, look!


According
to NYT, here’s what happened:

In the five-minute session with reporters, Mrs. Clinton also addressed questions about her exclusive use of a personal email address while at the State Department, saying she wanted the department to release the emails she had sent and received from her private account sooner rather than the estimated release in January 2016.

“They belong to the State Department, so the State Department has to go through its process,” Mrs. Clinton said. “But as much as they can expedite the process, that’s what I’m asking them to do.”

Because Mrs. Clinton exclusively used a personal email account while at the State Department, much of her correspondence has been shielded from federal records requests, creating a firestorm from Republicans investigating her handling of the 2012 attack on the United States mission in Benghazi, Libya.

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Someday, somebody will helpfully calculate the labor cost of 12 employees doing this for 5 weeks; something that could have been avoided if the responsible people were doing their jobs responsibly in the first place.

In any case, Congress has now threatened to benghazimazi the State Department funding, not all of it, just some, of course. Rep. Kay Granger (R-Texas), chairwoman of the House Appropriations subcommittee that oversees funding for State and foreign aid told The Hill that funding could be withheld from the agency’s programs and efforts “unless it relates to our own national security or our allies.” According to The Hill, GOP sources said divisions such as Legislative Affairs and Public Affairs and the Office of the Secretary could be affected.  Whether this would be a tame who will blink first contest or a real pissing contest, remains to be seen.

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Also, on May 21st, this happened:

About 350 pages of the Clinton emails obtained by The New York Times and now available online, represent about a third of the roughly 850 pages of emails from Secretary Clinton’s personal account that have been turned over to the Select Committee on Benghazi. The emails seemed to be all Sid, Sid, Sid, but there are also emails from the former Ambassadors to Libya, Chris Stevens (p.116, p.138, p.341) and Gene Cretz (p.70, p.346), former A/S for NEA Jeff Feltman (p.68, p.71), Cheryl Mills, State Department management go-to guy, Pat Kennedy (p.330), among others.  Click here to read it or download the pdf file here.

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FOIA and Clinton Aides: Some Shock and Awe at the Foggiest Bottom

Posted: 1:02 am EDT

 

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That WSJ article above has this to say about the Keystone-related documents subject to FOIA and the rapid dominance doctrine in the halls of Foggy Bottom:

The Keystone documents Ms. Mills objected to were all either held back or redacted, the same person said. After Ms. Mills began scrutinizing documents, the State Department’s disclosure of records related to Keystone fell off sharply, documents that include a court filing show.

Two others with knowledge of State Department records procedures said political appointees were allowed greater say than the FOIA experts thought was appropriate. It was hard to push back against the political staff, one said.

The pipeline project was so sensitive that an expert on FOIA was invited to a State Department policy meeting to advise on how to prospectively shield documents from disclosure, such as by marking them as involving the “deliberative process,” said a person who attended.

That’s the infamous exemption for the “deliberative process,” otherwise known as the “b-5.” In early May, the Senate Judiciary Committee held a hearing on “Ensuring an Informed Citizenry: Examining the Administration’s Efforts to Improve Open Government.” Joyce Barr, the Assistant Secretary for Administration, as well as Chief FOIA Officer for the Department of State was one of the witnesses and made news for reportedly saying that Secretary Clinton’s use of a private email account for official business was “not acceptable.” Too late much?

One other witness at that hearing was Thomas S. Blanton, the Director of the National Security Archive at George Washington University. Below is from his prepared statement on the “b-5″ exemption, also known as the “withhold it if you want to” exemption.

One reason why FOIA does not work is the abuse of the most discretionary exemption in the FOIA, the fifth or “b-5” on deliberative process. This exemption also includes attorney-client privilege, and every lawyer in this room shivers at the idea of infringing on that. Yet, I would point out that the Presidential Records Act dating back to 1978 has eliminated the b-5 exemption as a reason for withholding records 12 years after the President in question leaves office. Through the PRA, we have conducted a 35-year experiment with putting a sunset on the deliberative process exemption, and the facts show us no damage has been done with a 12-year sunset. Yes, some embarrassment, such as the junior White House lawyer who vetted (and rejected) a certain Stephen Breyer for a Supreme Court nomination back in the 1990s. But no new spate of lawsuits. No re-opened litigation. No damage to the public interest. Embarrassment cannot become the basis for restricting open government. In fact, embarrassment makes the argument for opening the records involved.

According to Mr. Blanton, the Justice Department’s use of the “withhold it if you want to” exemption is at an all-time high this year, invoked 82,770 times to withhold records that citizens requested. The same exemption used by the CIA to withhold volume 5 of a 30-year-old internal draft history of the disaster at the Bay of Pigs. This is the same exemption used by the FBI to censor most of the 5,000 pages it recently “released” on the use of the Stingray technology to locate individuals’ cell phones.  Apparently, this is the exemption that the administration also used to keep the Office of Legal Counsel final opinions out of the public domain according to Mr. Blanton.

So, are we terribly shocked yet?

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State, Local, Tribal/Territorial Govt Employees Traveling Abroad on USG Duties Will Soon Get Official Passports

Posted: 1:40 am EDT

 

The Federal Register has published the interim final rule amending passport rules that will allow the State Department to issue an official passport to an official or employee of a state, local, tribal, or territorial government traveling abroad to carry out official duties in support of the U.S. government.

22 CFR 51.3(b) provides that an “official passport” may be issued to: an official or employee of the U.S. government traveling abroad to carry out official duties; spouses and family members of such persons; and, when authorized by the Department of State, U.S. government contractors traveling abroad to carry out official duties on behalf of the U.S. government.

Increasingly, the federal government utilizes officials or employees of state, local, tribal, and territorial governments in support of federal activities, both domestically and overseas, such as the Federal Bureau of Investigation’s Joint Terrorism Task Force. When required to travel internationally in support of such federal activities, these individuals are not currently eligible for official passports. Issuance of an official passport to such individuals signifies to foreign governments that they are carrying out official duties in support of the U.S. government. The activities undertaken by these officials are often of pressing national security, law enforcement, or humanitarian importance and occur with little advance notice. It is in the U.S. government’s interest to provide these individuals the travel documents necessary to allow them to travel in a timely manner.

Under 22 U.S.C. 211a et seq., the Secretary of State has the authority to make rules for the granting and issuance of passports. The Department is amending section 51.3(b) of 22 CFR to authorize issuing official passports to an official or employee of a state, local, tribal, or territorial government traveling abroad to carry out official duties in support of the U.S. government.

The blue tourist passport is the only passport that can be used by U.S. citizens for leisure travel abroad. A no-fee passport looks identical to a tourist passport, but it can only be used for dependents who are traveling with their sponsor to an overseas duty station. Turn to page 26. If there is an amendment in the back of the passport, it is a no-fee passport. No-fee, official and diplomatic passports cannot be used for personal travel.

The blue tourist passport is the only passport that can be used by U.S. citizens for leisure travel abroad. A no-fee passport looks identical to a tourist passport, but it can only be used for dependents who are traveling with their sponsor to an overseas duty station. Turn to page 26. If there is an amendment in the back of the passport, it is a no-fee passport. No-fee, official and diplomatic passports cannot be used for personal travel.          (via army.mil)

Revise paragraph (b) of §51.3 to read as follows:
§51.3 Types of passports.
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(b) Official passport. When authorized by the Department, an official passport may be issued to:

(1) An official or employee of the U.S. government traveling abroad to carry out official duties, and family members of such persons;

(2) A U.S. government contractor traveling abroad to carry out official duties on behalf of the U.S. government; or

(3) An official or employee of a state, local, tribal, or territorial government traveling abroad to carry out official duties in support of the U.S. government.

Click here (pdf) for the current rule.

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Burn Bag: A weekend on lockdown, whataboutyou?

Posted: 12:01 pm  EDT

Via Burn Bag:

While the Danger Pay Working Group contemplates denying Danger Pay to Mexico border posts, consulate staff in Guadalajara spent the weekend on lockdown and the narco violence related security incidents in Matamoros have gone up fourfold.

Screen Shot 2015-05-05

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Next Generation U.S. Passport To Roll Out in 2016, No More Additional Page Insert Starting Jan 1, 2016

Posted: 5:04  pm EDT

 

Below is from the official proposal to be published on the Federal Register tomorrow eliminating the visa page insert (VPI) service for regular fee U.S. passports:

The Department proposes eliminating the visa page insert service for regular fee passport book holders beginning January 1, 2016. The expected effective date of this rule coincides with when the Department expects to begin issuing an updated version of the Next Generation Passport book. The Department routinely updates the technology used to produce U.S. passport books so that U.S. passport books use the most current anti-fraud and anti-counterfeit measures. The Next Generation Passport, which is the next update of the U.S. passport book, will contain a polycarbonate data-page and will be personalized with laser engraving. This passport will also employ conical laser perforation of the passport number through the data and visa pages; display a general artwork upgrade and new security features including watermark, security artwork, optical variable security devices, tactile features, and optically variable inks. The primary reason for eliminating visa page inserts is to protect the integrity of the Next Generation Passport books.

In 2012, an interagency working group tasked with overseeing the development and deployment of Next Generation Passport books found that visa page inserts could compromise the effectiveness of security features of the new passport books that are intended to provide greater protections against fraud and misuse. To maximize the effectiveness of the Next Generation Passport that is expected to be issued to the general public in 2016, the Department considered whether visa page inserts could be phased out at the time that the Department begins to issue the new passport books.

As part of this study, the Department considered the extent of the public’s usage of visa page inserts, costs to the Department of eliminating the service, and whether any inconvenience to the public could be minimized. A study of a sample of visa page insert applications revealed that a significant majority of those applying for visa page inserts had them added to 28-page passport books, rather than to the larger 52-page books. A set of visa page inserts is 24 pages. Accordingly, a 52-page passport book is the same size as a 28-page book with a set of extra visa pages. The Department determined that the demand for additional visa pages would be substantially reduced by issuing only the larger 52-page passport books to overseas U.S. passport applicants. Accordingly, the Department has begun issuing the 52-page book to overseas applicants, who are the most likely to apply for extra visa pages, at no additional cost. This should further reduce the already limited demand for visa page inserts, thus making the rule’s impact on the public very minimal. Individuals who apply for U.S. passports within the United States will continue to have the option to request a 52-page passport at no additional charge.

Each version of the Next Generation Passport book contains two fewer pages total, but the same number of visa pages as the passport books currently in circulation. Accordingly, after the Department begins issuing the Next Generation Passport book, all domestic passport book applicants will still have the option to choose between a 26-page passport book and a larger 50-page passport book, but the larger 50-page passport books will be automatically issued to people applying overseas.

The Department believes the limited demand for visa page inserts is outweighed by the importance of ensuring that the Next Generation Passport provides the maximum protection against fraud and misuse. Furthermore, the Department must monitor unused inventories of passport products, and the elimination of visa page inserts would facilitate more secure inventory controls. Accordingly, the Department proposes eliminating visa page inserts in passport books issued to the general public beginning January 1, 2016.

image from state.gov

image from state.gov click for larger view

When news about the elimination of passport page inserts first surfaced in late March, we went looking for answers.  A State Department official responded to our inquiry as follows, with emphasis on security and other interesting details:

The Department’s highest priority is to protect the lives and interests of U.S. citizens and this includes our commitment to ensure the U.S. passport remains the most secure travel document in the world. As we look forward to the next version of the U.S. passport, an internal focus group determined that supplemental visa pages pose vulnerabilities to both the physical security of the passport and the issuance process. While the United States is the only country to offer the option of adding additional visa pages to passports, below is some additional data which helped us arrive at our decision:

  • The total demand for additional visa pages is quite small. In FY 2012, we saw approximately 168,000 requests for additional pages compared to 12 million passport issuances.
  • For years have we have offered two passport book sizes to the American public: 28 pages and 52 pages. In FY2013 we estimated that 97% of all passport renewals used fewer than 18 visa pages, a strong indication that the current book sizes we offer meet the needs of the majority of American travelers.
  • To meet the needs of frequent travelers, we began issuing the 52-page passport books at all overseas posts which is where most requests for additional visa pages are processed.
  • Customers can renew their passports via expedited service both domestically and overseas at U.S. consulates and embassies.

We realize some frequent travelers may have concerns about this decision, but it is our duty to implement policies that reinforce and maintain the security of the passport. The United States allows travelers to enter into the country with a valid visa in an expired passport, as long as both passports (the valid and the expired one with the visa) are from the same country and type. Many other governments have similar regulations. However, we recommend that travelers obtain the latest information on visas and entry requirements from the nearest embassy or consulate of destination country before traveling.

According to CA, after the proposed rule is announced on the Federal Register, the Bureau of Consular Affairs will conduct outreach to educate the public on the elimination of visa pages insert (VPI), the effects of this decision, and alternative consular services.

Interested parties may submit comments for 60 days starting April 29, by any of the following methods:

  • Visit the Regulations.gov web site at: http://www.regulations.gov/index.cfm and search the RIN 1400-AD76 or docket number DOS-2015-0017.
  • Mail (paper, disk, or CD-ROM): U.S. Department of State, Office of Passport Services, Bureau of Consular Affairs (CA/PPT), Attn: CA/PPT/IA, 44132 Mercure Circle, P.O. Box 1227, Sterling, Virginia 20166-1227.

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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.

 

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AFSA Politely Asks the State Dept: Is Adherence to the Foreign Affairs Manual Optional For Some?

Posted: 1:01  am EDT

 

The Daily Press Briefing of March 11  toppled me off my chair when I heard the official spokesperson of the State Department, Jennifer Psaki said from the podium, “The FAM is not a regulation; it’s recommendations.”  (see NewsFlash: “The FAM is not a regulation; it’s recommendations.” Hurry, DECLINE button over there!).

On March 17, the American Foreign Service Association (AFSA) wrote to Arnold Chacon, the Director General of the Foreign Service and the State Department’s top HR official requesting clarity on the applicability of 3 FAM to career and political/non-career employees of the oldest executive agency in the union.

We would be grateful if you could help us understand if there is, in practice or by law, any difference in how these standards apply to and are enforced for non-career appointees as opposed to career employees, both Foreign Service and Civil Service.

AFSA noted the March 10 press briefing, where “Spokesperson Jen Psaki referred to 3 FAM as “guidelines” as distinguished from “law”:

As the Foreign Service, we have always understood the FAM to consist of regulations to which we must adhere. AFSA would like to ask if non-career appointees are formally subject to all of the rules and regulations in 3 FAM.

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Foreign Affairs Manual

 

3 FAM is the section of the Foreign Affairs Manual that covers personnel:

This volume of the FAM sets forth the policies and regulations governing the administration of the personnel system applicable to the Department of State. Regulations adopted jointly by the Department of State and other agencies (e.g. Broadcasting Board of Governors, USAID, Commerce, Agriculture, Peace Corps,) are so identified wherever they appear in this volume. (see pdf)

Volume 3 of the FAM is organized around eight major personnel topics, each of which is assigned a series of nine chapters of 89 subchapters. In so far as is practicable, each subchapter is restricted to a single topic. Since some topics relate to both Foreign Service and Civil Service employees, while others relate to employees of only one of the services, subchapters, or parts thereof, contain a legend, which indicates coverage.

☞Chapters in the 1000 series contain general information on the organization of the FAM and general policies and regulations relating to all Civil Service and/or Foreign Service employees.

☞Chapters in the 2000 series contain regulations and policies, which govern the day-to-day operations of the Foreign Service and Civil Service personnel systems.

☞Chapters in the 3000 series contain regulations and policies which govern Civil Service and Foreign Service pay, leave administration, benefits (e.g. Federal Employees Health Benefits (FEHB), Federal Employees Group Life Insurance (FEGLI), Office of Worker’s Compensation Program (OWCP), Unemployment Compensation for Federal Employees (UCFE), Reasonable Accommodations), allowances and travel. In addition, Chapters in the 3000 series contains special program regulations and policies such as Transit Subsidy Program, Student Loan Repayment Program (SLRP), and Professional Liability Insurance (PLI).

☞Chapters in the 4000 series contain regulations and policies which govern the conduct of Foreign Service and Civil Service employees; provide penalties for misconduct; establish grievance and appeals procedures; and provide for awards for outstanding performance.

☞Chapters in the 5000 series contain regulations and policies, which govern labor management relations in the Department.

☞Chapters in the 6000 series contain regulations and policies, which govern the administration of the retirement program for Civil Service and Foreign Service employees.

☞Chapters in the 7000 series contain regulations and policies, which govern the administration of the Foreign Service National personnel system for Overseas Employees.

☞Chapters in the 8000 series contain regulations and policies, which govern the administration of the various overseas employment programs administered by the Office of Overseas Employment (HR/OE).

If it comes from the podium, it is official.

So it is, of course, understandable that AFSA is concerned when she calls the FAM “guidelines.”  But equally troubling to hear her say from the official podium that the FAM is not regulations but recommendations, as if somehow adherence to it is voluntary and optional. We’ve asked state.gov for a comment and the nice person there told us they’re consulting with their subject matter experts and hopefully will have something for us.

Anyone has an in with the folks at the Office of the Legal Adviser?  Would you kindly please ask them to wade in on this?

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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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OIG: Only 41,749 State Dept Record Emails Preserved Out Of Over a Billion Emails Sent

Posted: 4:29 pm EDT
Updated: March 12, 9:29 pm PST

State Department deputy spokeswoman Marie Harf told CNN that since the inspector general is independent from the department “they will have to speak to the timing and details of releasing this report, which they control.”

So we asked the IG and we’re told that “the timing of the release of this report (ISP-I-15-15) was purely coincidental to the recent email issue.”

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State/OIG did a review (pdf) of the Department’s State Messaging and Archive Retrieval Toolset (SMART) and Record Email in Washington, DC, between January 24 and March 15, 2014. According to the OIG, in 2013, Department employees created 41,749 record emails. These statistics are similar to numbers from 2011, when Department employees created 61,156 record emails out of more than a billion emails sent. Department officials have noted that many emails that qualify as records are not being saved as record emails.

Below are the highlights of the OIG review:

  • A 2009 upgrade in the Department of State’s system facilitated the preservation of emails as official records. However, Department of State employees have not received adequate training or guidance on their responsibilities for using those systems to preserve “record emails.” In 2011, employees created 61,156 record emails out of more than a billion emails sent. Employees created 41,749 record emails in 2013.
  • Record email usage varies widely across bureaus and missions. The Bureau of Administration needs to exercise central oversight of the use of the record email function.
  • 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.
  • System designers in the Bureau of Information Resource Management need more understanding and knowledge of the needs of their customers to make the system more useful. A new procedure for monitoring the needs of customers would facilitate making those adjustments.

Additional details from the OIG report:

The need for official records

The Department of State (Department) and its employees need official records for many purposes: reference in conducting ongoing operations; orientation of successors; defending the U.S. Government’s position in disputes or misunderstandings; holding individuals accountable; recording policies, practices, and accomplishments; responding to congressional and other enquiries; and documenting U.S. diplomatic history. Record preservation is particularly important in the Department because Foreign Service officers rotate into new positions every 2 or 3 years. Federal law requires departments, agencies, and their employees to create records of their more significant actions and to preserve records according to Governmentwide standards.

Who has responsibility for the preservation of official records?

Every employee in the Department has the responsibility of preserving emails that should be retained as official records.3 The Office of Information Programs and Services in the Bureau of Administration’s Office of Global Information Services (A/GIS/IPS) is responsible for the Department’s records management program, including providing guidance on the preservation of records for the Department and ensuring compliance. IRM administers the enterprise email system, including SMART, and therefore provides the technical infrastructure for sending and receiving emails and preserving some as record email.

What constitute official records? 

If an employee puts down on paper or in electronic form information about “the organization, functions, policies, decisions, procedures, operations, or other activities of the Government,” the information may be appropriate for preservation and therefore a record according to law, whether or not the author recognizes this fact. Whether the written information creates a record is a matter of content, not form. Federal statutes, regulations, presidential executive orders, the Foreign Affairs Manual (FAM), Department notices, cables, and the SMART Messaging Guidebook contain the criteria for creating and maintaining official records and associated employee responsibilities.

Which email messages should be saved as records?

According to Department guidance referenced above, email messages should be saved as records if they document the formulation and execution of basic policies and actions or important meetings; if they facilitate action by agency officials and their successors in office; if they help Department officials answer congressional questions; or if they protect the financial, legal, and other rights of the government or persons the government’s actions directly affect. Guidance also provides a series of questions prompting employees to consider whether the information should be shared, whether the successor would find the email helpful, whether it is an email that would ordinarily be saved in the employee’s own records, whether it contains historically important information, whether it preserves the employee’s position on an issue, or whether it documents important actions that affect financial or legal rights of the government or the public.

 

The OIG report notes that it has previously examined the Department’s records management, including electronic records management, in its 2012 inspection of A/GIS/IPS. OIG found that A/GIS/IPS was not meeting statutory and regulatory records management requirements because, although the office developed policy and issued guidance on records management, it did not ensure proper implementation, monitor performance, or enforce compliance. OIG also noted that, although SMART users can save emails as records using the record email function, they save only a fraction of the numbers sent. OIG recommended that the Bureau of Administration implement a plan to increase the number of record emails saved in SMART.

That was in 2012.

The OIG team also found that “several major conditions impede the use of record emails: an absence of centralized oversight; a lack of understanding and knowledge of record-keeping requirements; a reluctance to use record email because of possible consequences; a lack of understanding of SMART features; and impediments in the software that prevent easy use.”

To show how misunderstood is the requirement to save record emails, see the following chart. The U.S. Embassy in Hanoi had 993 record emails compared to US Embassy Islamabad that only had 121 record emails preserved. The US Consulate General in Guangzhou had 2 record emails while  USCG Ho Chi Minh City had 539. It looks like the US Embassy in Singapore with 1,047 record emails had the highest record emails preserved in 2013. The frontline posts like Baghdad had 303, Kabul had 61, Sana’a had 142 and Tripoli had 10 record emails in 2013. The only explanation here is that the folks in Singapore had a better understanding of record email requirements than the folks in our frontline posts. Given that the turn-over of personnel at these frontline posts is more frequent, this can have consequential outcome not just in the public’s right to know but in continuity of operations.

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Again, via the OIG:

Many inspections of embassies and bureaus have found that the use of SMART and the record email function are poorly understood. This lack of understanding is one of the principal causes of the failure of U.S. embassies to use record email more often. The inspections show that many employees do not know what types of emails should be saved as record emails. The employees typically need more and clearer guidance and more training. OIG has made formal and informal recommendations to increase the use of record email, to write and distribute formal embassy or bureau guidance on record email, and to arrange for training.

The A/GIS/IPS office is under the Assistant Secretary for the Bureau of Administration, an office that reports to the Under Secretary for Management (M). The Bureau of Information Resource Management (IRM) also reports to M.

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NewsFlash: “The FAM is not a regulation; it’s recommendations.” Hurry, DECLINE button over there!

Posted: 12:30 pm EDT

 

“I don’t have the FAM in front of me. I can certainly check and see if there were certain policies, if there were regulations. The FAM is not a regulation; it’s recommendations.”

That’s a direct quote from the official spokesperson of the U.S. Department of State, Jennifer Psaki, who managed to change internal agency policy in just eight words during the Daily Press Briefing on March 10, 2015. Here is a screenshot from the transcript that you may look at just as soon as you’ve picked up your jaw from the floor.

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Dammit! Yahoo called the FAM “regulations.” It obviously has no idea there’s something wrong with its search engine!

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Okay, let’s try searching for this at the State Department’s official website at state.gov.

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Well, it turns out, those folks running the official agency website also have no idea they have this  all wrong. Calling the FAM “regs” is not acceptable because that stands for “regulations.” This would make us all think that the FAM is regulations. And according to the official spokesperson, the FAM is really just recommendations.  And if so, this must mean that the Foreign Affairs Manual is just a suggestion or proposal for the best course of action for State Department employees. Are folks subjected to it free to decline some or all those recommendations?

The Office of Directives Management must now change the URL from http://www.state.gov/m/a/dir/regs/ to http://www.state.gov/m/a/dir/recommendations/  — otherwise this will all lead to confusion.

But this is actually great news.

That FSO who was imposed charges to the amount of $14,804.01 by the State Department for packing, shipping, storing and repacking household effects (HHE) that included 44 boxes of marble tiles weighing 5871 pounds – may now go back and ask for a refund.  The specialist who was disciplined “for improper personal conduct and failure to follow regulations” following an extramarital sexual relationship with a local national and not informing his wife about the affair, may now go back and tell the FSGB that he’ll decline the State Department’s recommendations.

FSGB No. 2009-041:  The Department argues that the regulation in effect in 1999, 6 FAM 161.4 (currently 14 FAM 611.5(2)) clearly prohibits shipment and storage of construction materials as HHE.  As a Foreign Service Officer, grievant is responsible for knowing all of the applicable regulations.

FSGB No. 2011-051 (pdf):  Department regulations state the applicable policies regarding employee conduct that may result in disciplinary action. Grievant was obliged to know these regulations and to conform his conduct accordingly. 3 FAM 4130, Standards for Appointment and Continued Employment, provides guidelines for when disciplinary action may be taken against an employee. 3 FAM 4138 provides that disciplinary action may be taken for:

criminal, dishonest or disgraceful conduct (see section 3 FAM 4139.14); . . . conduct which furnishes substantial reason to believe that the individual may be or is being subject to coercion, improper influence, or pressure which is reasonably likely to cause the individual to act contrary to the national security or foreign relations of the United States; . . . conduct which clearly shows poor judgment or lack of discretion which may reasonably affect an individual or the agency’s ability to carry out its responsibilities or mission.

This is going to put the entire Foreign Service Grievance Board out of work, right?

Anyone who’s ever been cited for FAM infractions and/or been disciplined as a result of the contents in the Foreign Affairs Manual may consider ringing their lawyers.  All employees, presumably, are now welcome to decline any or all recommendations under the FAM?

Arrggghhh! Quit laughing. This isn’t funny!

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