Is Congress aware that the people that do ALL the reviewing for @StateDept FOIA requests (are) part timers?

Posted: 3:23 am ET
Updated: April 19 9:47 pm PT
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Below is an excerpt from the Associated Press v. State Department Case 1:13-cv-01363-EGS Document 48-2 Filed 12/11/15, a status hearing with John Hackett who has been with the State Department since 2013. Mr. Hackett was the Deputy Director, Office of Information Programs and Services from April 2013 to March 2014. He served as Acting Director for a year, and in June 2015, he was appointed Director of the Office of Information Programs and Services. The hearing occurred before Judge Richard Leon at the U.S. District Court for the District of Columbia. This is an excerpt from the court transcript:

Q How many people you got working under you, sir?
A We have approximately 60 civil servants who work on the FOIA program.

Q You have some part-time people too, right?
A We have additional part-time people.

Q Forty?
A We have 40 former foreign service officers who do primarily the review.

Q You have 40 part-time employees, former foreign service officers who assists the 60 full time, right?
A The 40 former foreign service officers are the primary reviewers. They’re experts in their field, and they do, they do the bulk of the review. In fact, they do all of the reviews.

Q The sixty, 64 folks that you have on your full-time staff don’t do any reviewing?
A No, your Honor, they’re case analysts and they receive the documents that come in, the requests that come in from the public. They do the validations of the requests. They do the tasking of other bureaus and offices. They open the mail, task things out.

Q They process the paper?
A Process the paper, yes.

Q They don’t have the training, background and skill to make the kinds of judgment calls that reviewers make, if I understood you correctly?
A That’s correct, your Honor.

Q And when you say 40 are part time, what does part time equal 20 hours per week?
A It depends, your Honor. They are in a special category that allows them to work X amount of hours per year and receive their pensions at the same time, their foreign service pension. So there’s a cap on their hours and there’s also a cap on their dollars. So a lot of them work I would say 20 to 24 hours a week, but it depends on what they’re paid. Because many of them cap out before they’ve used all their hours. They cap out on their salary hours.

Q So you don’t have the authority to direct them to work more than X-number of hours a week or do you?
A I don’t, your Honor, because it is a provision, and I’m not sure — it’s in the department’s regulation or whether it’s in an act or statute that allows them to work, work for the State Department, work for the government in addition to receive their foreign service retirement.

Q Is Congress aware that the people that do all the reviewing for State Department FOIA requests part timers? Does congress know this?
A Your Honor, I can’t speak to what Congress does or does not know.

Q Well, has that always been the system?
A It’s been the system since I arrived, your Honor. It’s been a successful system to have.

Q Well, now that’s a matter of prospective, sir. The  State Department has been publicly criticized on many occasions for how slow they are in processing FOIA reviews, many occasions. Indeed, I think Justice and State are the ones that are publicly criticized the most for the slowness of their reviews. Surely you’re aware of that, are you not, it’s your department?
A Your Honor, we have since 2008, had a 300 percent increase in the number of requests coming to the Department.

Q All the more reason why you should have full-time people doing the reviewing. So prior to you getting there it was always part timers too as far as you know?
A As far as I know, your Honor, yes.

Q As far as you know it’s always been part timers?
A Yes, but there’s been part timers, but it’s not just their part timers. You need staff or you need experts in this field, in diplomacy and national security information. And they come to us with —

Q Let’s pause there for a second. You don’t need that to figure out Huma Abedin’s, Special Government Employee papers. That doesn’t affect national security, does it?
A I don’t know, your Honor.

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Retired FSOs who return to work as part-timers are called Reemployed Annuitants (previously categorized as WAEs or When Actually Employed employees), and their work hours are capped at 1040 hours a year. Below via RNET:

The term WAE (When Actually Employed) is used in the Department of State (DoS) to describe a reemployed annuitant who works on an intermittent basis for no more than 1040 hours during each service year and whose appointment is not to exceed one year. Bureaus utilize WAEs to fill staffing gaps and peak workload periods. While the acronym WAE is currently well-known inside DoS, new employees understandably find it confusing. In order to transition out of using the term WAE, the program has been renamed the Reemployed Annuitant (WAE) Program or REA/WAE.
[….]
A FS annuitant reemployed on a temporary basis will continue to receive their full annuity and the full salary so long as the annual earnings and annuity received do not exceed the higher of: (a) the FS annuitant’s salary at retirement (unadjusted for inflation) or (b) the full- time salary of the position in which the FS annuitant is reemployed.

Updated April 19:

A new declaration from Mr. Hackett (via Leopold v. State Department) case indicates that the State Department has hired additional reviewers. It looks like there will be 25 more FOIA reviewers to be brought onboard this spring.

 

Related posts:

 

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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
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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.

Screen Shot 2015-03-11

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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