@StateDept Launches New System of Records to Capture All Emails — Hunting For Leakers, Plus Other Stuff

Posted: 1:55 am ET

 

We just stumbled into a December 12, 2017 announcement on the Federal Register about a “New System of Records” signed by Mary R. Avery, the Senior Agency Official for Privacy in the Office of Global Information Services of the State Department’s Bureau of Administration. The notice says that the “purpose of the Email Archive Management Records system is to capture all emails and attachments that interact with a Department of State email account and to store them in a secure repository that allows for search, retrieval, and view when necessary.”

In accordance with 5 U.S.C. 552a(e)(4) and (11), this system of records takes effect upon publication, with the exception of the routine uses that are subject to a 30-day period during which interested persons may submit comments to the Department.

The individuals covered by this new system? All State Department folks with state.gov emails, including people with interactions to those state.gov accounts, or mentioned in those email accounts:

“Individuals who maintain a Department of State email account that is archived in the system. The system may also include information about individuals who interact with a Department of State email account, as well as individuals who are mentioned in a Department of State email message or attachment.”

“The records in this system include email messages and attachments associated with a Department of State email account, including any information that may be included in such messages or attachments. The system may also include biographic and contact information of individuals who maintain a Department of State email account, including name, address, email address, and phone number.”

The location of this new system is reportedly at the State Department or annexes and post overseas but also that information “may also be stored within a government-certified cloud, implemented, and overseen by the Department’s Messaging Systems Office (MSO.”  

Does anyone know if this new system is managed by a specific contractor or contractors, and if so, which one/s?

Note that the new system does not just capture “record” emails for federal record purposes, but “all” emails.  The hunt for leakers starts here? Although if you read carefully item #f below, it looks like emails will also be shared and screened for potential insider attacks, not just on networks, but for “for terrorist screening, threat-protection and other homeland security purposes.”

And item #h… oh, my … for people with planned or ongoing litigations!  It has always been said that employees should have no expectation of privacy when using government systems; this new system clarifies it for everyone on how the State Department intends to use and share information in its email system.

Information in this new system may be shared with the following:

(a) Other federal agencies, foreign governments, and private entities where relevant and necessary for them to review or consult on documents that implicate their equities;

(b) a contractor of the Department having need for the information in the performance of the contract, but not operating a system of records within the meaning of 5 U.S.C. 552a(m).

(c) appropriate agencies, entities, and persons when (1) the Department of State suspects or has confirmed that there has been a breach of the system of records; (2) the Department of State has determined that as a result of the suspected or confirmed breach there is a risk of harm to individuals, the Department of State (including its information systems, programs, and operations), the Federal Government, or national security; and (3) the disclosure made to such agencies, entities, and persons is reasonably necessary to assist in connection with the Department of State efforts to respond to the suspected or confirmed breach or to prevent, minimize, or remedy such harm.

(d) another Federal agency or Federal entity, when the Department of State determines that information from this system of records is reasonably necessary to assist the recipient agency or entity in (1) responding to a suspected or confirmed breach or (2) preventing, minimizing, or remedying the risk of harm to individuals, the recipient agency or entity (including its information systems, programs, and operations), the Federal Government, or national security, resulting from a suspected or confirmed breach.

(e) an agency, whether federal, state, local or foreign, where a record indicates a violation or potential violation of law, whether civil, criminal or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule or order issued pursuant thereto, so that the recipient agency can fulfill its responsibility to investigate or prosecute such violation or enforce or implement the statute, rule, regulation, or order.

(f) the Federal Bureau of Investigation, the Department of Homeland Security, the National Counter-Terrorism Center (NCTC), the Terrorist Screening Center (TSC), or other appropriate federal agencies, for the integration and use of such information to protect against terrorism, if that record is about one or more individuals known, or suspected, to be or to have been involved in activities constituting, in preparation for, in aid of, or related to terrorism. Such information may be further disseminated by recipient agencies to Federal, State, local, territorial, tribal, and foreign government authorities, and to support private sector processes as contemplated in Homeland Security Presidential Directive/HSPD-6 and other relevant laws and directives, for terrorist screening, threat-protection and other homeland security purposes.

(g) a congressional office from the record of an individual in response to an inquiry from the Congressional office made at the request of that individual.

(h) a court, adjudicative body, or administrative body before which the Department is authorized to appear when (a) the Department; (b) any employee of the Department in his or her official capacity; (c) any employee of the Department in his or her individual capacity where the U.S. Department of Justice (“DOJ”) or the Department has agreed to represent the employee; or (d) the Government of the United States, when the Department determines that litigation is likely to affect the Department, is a party to litigation or has an interest in such litigation, and the use of such records by the Department is deemed to be relevant and necessary to the litigation or administrative proceeding.

(i) the Department of Justice (“DOJ”) for its use in providing legal advice to the Department or in representing the Department in a proceeding before a court, adjudicative body, or other administrative body before which the Department is authorized to appear, where the Department deems DOJ’s use of such information relevant and necessary to the litigation, and such proceeding names as a party or interests:

(a) The Department or any component of it;

(b) Any employee of the Department in his or her official capacity;

(c) Any employee of the Department in his or her individual capacity where DOJ has agreed to represent the employee; or

(d) The Government of the United States, where the Department determines that litigation is likely to affect the Department or any of its components.

(j) the National Archives and Records Administration and the General Services Administration: For records management inspections, surveys and studies; following transfer to a Federal records center for storage; and to determine whether such records have sufficient historical or other value to warrant accessioning into the National Archives of the United States.

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Trump to Nominate Ex-NHTSA Admin Nicole R. Nason to be Asst Secretary For Administration

Posted: 2:12 am ET

 

On November 28, the White House announced President Trump’s intent to nominate former NHTSA Administrator Nicole R. Nason to be the next Assistant Secretary of State for Administration. The WH released the following brief bio:

Nicole R. Nason of New York will serve as an Assistant Secretary of State for Administration. Ms. Nason, an attorney and senior government official, has served as a Senior Advisor to the Secretary of State in Washington, D.C. since June 2017. She previously served in Washington, D.C. as Administrator of the National Highway Traffic Safety Administration, U.S. Department of Transportation (2006-2008), Assistant Secretary for Government Affairs, U.S. Department of Transportation (2003-2006), Assistant Commissioner, U.S. Customs and Border Protection (2002-2003) and Attorney for the Subcommittee on Crime, U.S. House of Representatives (1995- 1999). From 2014-2017, she founded and ran Project Koe in Connecticut, empowering women and improving health and fitness using traditional Japanese martial arts techniques. Ms. Nason earned a B.A. in Political Science and Government at American University and a J.D. at Case Western Reserve University.

According to AllGov, she previously worked as counsel and communications director for Intelligence Committee Chairman Porter Goss of Florida, as counsel for the House Judiciary Committee under Chairman Henry Hyde of Illinois, and as assistant commissioner of the Office of Congressional Affairs  at the U.S. Customs Service.

According to Consumer Report, Nason left NHTSA after serving a little more than two years as head of the government’s primary auto safety agency.

A quick summary about the A bureau via state.gov:

The Bureau of Administration provides support programs to the Department of State and U.S. embassies and consulates. These programs include: procurement; supply and transportation; diplomatic pouch and mail services; official records, publishing, and library services; language services; setting allowance rates for U.S. Government personnel assigned abroad and providing support for Department assisted overseas schools; domestic real property and facilities management; domestic emergency management; support for White House travel abroad; and logistical support for special conferences.

Direct services to the public and other government agencies include: responding to requests under the Freedom of Information and Privacy Acts and providing the Virtual Reading Room for public reference to State Department records and information access programs; printing official publications; simultaneous interpretation for Senior USG Officials; and determining use of the Diplomatic Reception Rooms of the Harry S Truman headquarters building in Washington, DC.

State/A oversees the offices of Allowances, Directives, Emergency Management, Global Publishing, Languages Services, Logistics Management, Overseas Schools, and the Office of the Procurement Executive. The incumbent reports to the Under Secretary for Management.

History.state.gov notes that the Department of State created the position of Assistant Secretary of State for Administration during a general reorganization in December 1944, after Congress authorized an increase in the number of Assistant Secretaries in the Department from four to six (Dec 8, 1944; P.L. 78-472; 58 Stat. 798). The reorganization was the first to designate substantive designations for specific Assistant Secretary positions. The title for this position has varied over the years. Assistant Secretaries for Administration have supervised a variety of functions ranging from budget and personnel matters to foreign buildings and record keeping. Several of these functions, such as accounting and diplomatic security have become the responsibility of newly created bureaus.

Of the last ten appointees to this position, two have been non-career appointments, Arthur Fort and Rajkumar Chellaraj.

Related items:

Nicole Nason: AllGov
Diplomacy, humor take new NHTSA chief far (by Jayne O’Donnell, USA Today)
Hey Auto Journalists, NHTSA Administrator Nicole Nason Is Waiting To Take YOUR Call! (Jalopnik)
Bush Names Choice To Head Traffic Safety (by Sholnn Freeman, Washington Post)
What’s Off the Record at N.H.T.S.A.? Almost Everything (NYT, August 22, 2007 via Wayback Machine)
David Kelly replaces Nicole Nason as top NHTSA administrator (Consumer Reports News, Sept 8, 2008)
For NHTSA Chief Nason, Family Influences Policy (Edmunds.com, Wayback Machine)

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Photo of the Day: Tillerson Meets with Bureau of Administration Folks

Posted: 2:43 am ET
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The Bureau of Administration provides support programs to the Department of State and U.S. embassies and consulates. These programs include: procurement; supply and transportation; diplomatic pouch and mail services; official records, publishing, and library services; language services; setting allowance rates for U.S. Government personnel assigned abroad and providing support for Department assisted overseas schools; domestic real property and facilities management; domestic emergency management; support for White House travel abroad; and logistical support for special conferences.

On August 16, the State Department released a photo of Secretary Tillerson with S/P Brian Hook meeting with unidentified representatives of the Bureau of Administration, an office located under the umbrella of the Under Secretary for Management. A nominee for “M” has been announced but has not been confirmed. No nominee has been announced for the Bureau of Administration.

U.S. Secretary of State Rex Tillerson meets with representatives of the Bureau of Administration, at the U.S. Department of State in Washington, D.C., on August 16, 2017. [State Department photo/ Public Domain]

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@StateDept’s $1,086,250 Organizational Study: Multiple Contractors Interviewed But Only 1 Offer?

Posted: 1:54 am ET
Updated: May 12, 1:02 pm PT
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Via CBS News:

The State Department will be spending at least $1,086,250 for the “listening tour” that Secretary of State Rex Tillerson launched Wednesday morning.

The department has contracted Insigniam, a private consulting firm, to conduct the review in a project they are calling the “Department of State organizational study.” The State Department has not replied to requests for comment on the review’s price tag and their decision to use Insigniam to carry out this review.

Tillerson and the Insigniam co-founder Nathan Owen Rosenberg served on the Boy Scouts of America board together in 2011. The State Department has not replied to requests for comment on the review’s price tag and their decision to use Insigniam to carry out this review.

After Bloomberg broke the news on April 27 that Secretary Tillerson is seeking a 9% workforce cut and has hired the consulting company Insigniam to conduct a survey, we started looking for the contract awarded. We wanted to see the scope of work and the statement of work requirement included in this contract. We were able to find a $60M Professional Staffing Support Contract awarded on April 5, an Intent to Sole Source $34K Representational Furnishings on April 24  on FedBizOpps where federal business opportunities are typically posted, but not this one.

We understand that Insigniam was elected under a “sole source” contract. On May 1st, we emailed the State Department’s Bureau of Public Affairs for information on how and when this contract was awarded since we have not been able to find  the agency’s sole source justification for the job. As of this writing, the State Department has neither acknowledged nor responded to our inquiry.

Three contracts

We have since learned of three transactions (thanks Z!) issued to Insigniam LLC, a company based in Pennsylvania’s 2nd congressional district (PA02). The first contract SAQMMA17C0157 dated April 25, 2017 is valued at $850,000. The second contract SAQMMA17C0157 dated April 28, 2017 is valued at $236,250.  The third contract SAQMMA17C0157 is dated April 29, 2017 and does not have an obligated value. The third contract’s “Reason for Modification” is listed as “M: Other Administrative Action.”  All three contracts list May 30, 2017 as the “current” and “ultimate” completion date.

click on image to see the contracts via usaspending.gov

The funding for these contracts have been requested through the Bureau of Administration (State/A) but the Contracting Office is the State Department’s Acquisitions office (AQMMA). This is a definitive, firm fixed price contract.  The cost or pricing data is listed as “W: Not Obtained — Waived.”  The contract description says “Department of State Organizational Study.”

Multiple contractors interviewed but only 1 offer?

Under Competition Information, usaspending.gov lists this contract as “not competed”; the reason for the non-competition is listed as “Urgency.” This section also saysNumber of Offers Received: 1.”

The State Department apparently told CBS News that “they interviewed multiple contractors for the project before selecting Insigniam.”

“Of the proposals reviewed, Insigniam’s was the most cost-effective for the expertise, scope, and timeline needed, including its ability to survey and provide analysis of large organizations,” a State Department official told CBS News.  

So the State Department interviewed multiple contractors but those companies did not compete for this contract? And only one offer was received?

The company is listed on usaspending.gov as a partnership with 49 employees and an annual revenue of $12.7M.  The contracting officer determined it as a “small business”, “woman owned” and a “self-certified disadvantage business.” Under competition information, however, these contracts indicate “no set aside used” and “no preference used.”

The GSA confirmed to us that “the agency will dictate whether they are required to use GSA schedules or directly from a vendor. GSA has no say in how a customer orders needed materials or services.”

We are aware of only one previous organizational study conducted at the State Department (if there’s more, let us know!). There was  a study focused on the Foreign Service and was based on three management conferences held by the Department in 1965. It was conducted by Professor Chris Argyris of Yale University.  There were a few others through the years; we’ll try and see if we can find a good list to post here. 

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IG Inspection of Diplomatic Security’s Directorate of International Programs: After Benghazi Chaos, Nothing to See Here

Posted: 2:52 am EDT
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State/OIG inspected the Bureau of Diplomatic Security, Directorate of International Programs (State/DS/IP) from June 2 through July 2, 2015.  The February 2016 report was posted online on February 22, 2016. International Programs is tasked with “managing and directing all Bureau of Diplomatic Security programs and policies that protect the Department of State’s international missions and personnel from the threats of terrorism, espionage (human and technical), and crime.”

The directorate has been headed by DAS Christian Schurman, a Diplomatic Security (DS) Special Agent with 27 years of service since September 2014.  In the aftermath of the Benghazi attack, the State Department created a new Directorate of High Threat Programs which carved out from DS/IP approximately 30 overseas missions and the liaison and coordination responsibilities for 4 of the 7 DoD combatant commands: U.S. Africa Command, U.S. Central Command, Joint Special Operations Command, and the U.S. Special Operations Command.

Structure:

The Bureau of Diplomatic Security (DS) International Programs Directorate (DS/IP) provides leadership, support, and oversight of security and law enforcement programs for 199 regional security offices overseas. A Deputy Assistant Secretary leads a staff of approximately 227 Foreign Service, Civil Service, contract, and retired annuitants and oversees an annual budget of more than $1.6 billion for local guard and personal protective services task orders in the Worldwide Protective Services (WPS) contract at U.S. missions overseas. The directorate consists of three offices with oversight and responsibility, as follows:

— The Office of Special Projects and Coordination provides global oversight of the Marine Security Guard (MSG) program and emergency planning for all U.S. diplomatic missions overseas.

— The Office of Overseas Protective Operations (DS/IP/OPO) provides funding, administrative and management oversight, and operational guidance for local guard and surveillance detection contracts, local guard and surveillance detection forces employed under personal service agreements, as well as the WPS contract and the residential security programs at overseas missions.

–The Office of Regional Directors serves as the directorate liaison between Regional Security Offices in the field, other DS directorates, and regional and functional bureaus.

Leadership:  OIG personal questionnaire results scored the Deputy Assistant Secretary for International Programs within the range of scores for the 66 Deputy Assistant Secretaries in 21 domestic inspections conducted during the past 5 years, in 10 of the 13 leadership attributes. He scored well above the prior averages in the areas of vision and goal setting, clarity, and problem solving.

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Summary of Findings:

  • Eighty-three percent of the Regional Security Officers who responded to an OIG field survey expressed satisfaction with timely guidance, direction, and coordination by the Directorate of International Programs on their behalf.
  • Seventy-nine percent of the Deputy Chiefs of Mission who responded to the field survey expressed satisfaction with the frequency and timeliness of communications and guidance from the Directorate of International Programs relating to Deputy Chief of Mission supervision of Regional Security Officers.
  •  Officials interviewed in five of the six regional bureaus stated that communications and coordination with the Bureau of Diplomatic Security have much improved in the aftermath of the attack on Benghazi in September 2012.
  •   The directorate is in the process of coordinating the updates of memoranda of understanding between the Department and the Department of Defense concerning Force Protection Detachments under Chief of Mission authority and the Marine Security Guard detachments.
  •   The Office of Acquisition Management and the Directorate of International Programs entered into an informal agreement to assign contracting officers and contracting specialists within the directorate Office of Overseas Protective Operations 8 years ago to help desk officers and acquisition management specialists oversee more than $1.6 billion in local guard and personal protective services contracts. However, the Bureau of Diplomatic Security and the Office of Acquisition Management have no service level agreement defining the roles and responsibilities of both staffs, which has caused confusion and some misunderstanding.

State OIG made the following recommendations:

OIG made three recommendations to the Bureau of Diplomatic Security that include establishing or updating memoranda of agreement between the Department and the Department of Defense pertaining to the Marine Security Guard program, issuing guidance to Chiefs of Mission on the availability of U.S. military assets during emergency situations and implementing an orientation program for directorate acquisition staff.

OIG also made two recommendations to the Bureau of Administration relating to the implementation of a service level agreement pertaining to the administration of local guard and personal protective services contracts and updating the Contractor Performance Assessment Reporting System with timely contract performance data.

Read the full report here:

 

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Related posts:

 

Related items:

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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Snapshot: State Dept FY2014 FOIA Personnel and Costs

Posted: 9:46 am EST
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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.

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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.

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In related news:

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State Dept Responds to an FOIA Two Years After Request — Confusion and Hilarity Follows

— Domani Spero

One of our blog readers asked us about the Freedom of Information Act  (FOIA). Nope, we don’t know much about it except the (b)(6) exemptions which resulted on the redactions of OIG inspectors names from publicly available reports posted online.  In  October 2013, State/OIG finally started disclosing the names of inspectors in publicly available reports, so yay for that.

But because we’re a curious cat, we wanted to know why he was asking us about the FOIA. It turned out, our reader submitted a FOIA request to the State Department in 2012.  He wanted to know about “Meetings between Jeff Gorsky and the AILA.”  Mr. Gorsky is the Chief of the Legal Advisory Opinion Section of the Visa Office of the Bureau of Consular Affairs and AILA is the American Immigration Lawyers Association (AILA), the national association of more than 13,000 attorneys and law professors who practice and teach immigration law. Our reader, Mr. Requester, shared the confirmation of his FOIA request from 2012:

Screen Shot 2014-04-20

After repeated inquiries and prodding, and after almost two years of waiting, a response finally arrived in Mr. Requester’s mail box this year. Note that the subject of the FOIA request is “Jeff Gorsky and the AILA” and the official State Department response to the FOIA request came from Mr. Gorsky himself. Take a look:

Screen Shot 2014-04-21

What the hey?

Is it normal or routine that the subject of the FOIA request is also the signatory of the letter that basically says we found 42 documents but they all contain information that is “personal in nature?”

I don’t know, is it?  Help me out here.  These are presumably from work emails, how can they all be “personal in nature?”

Screen Shot 2014-04-20

Note: FOIA Exemption (b)(6) – permits the government to withhold all information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.”

Is it bizarre or is it just totally expected that the responding office (b)(6)’ed just about every name that appears on the documents released?  In handwritten notations that look messy and all?  What’s the use of filing an FOIA if all you get are these scrawny (b)(6)s?  The email above concerns a meeting request on “L1 Visas in Singapore.” So, the names of all  pertinent parties to that meeting are also “personal in nature?”

Processing … processing ….screeeccch bang kaplunga!  Ugh! I don’t get it; I must be, like… like….like, a malfunctioned magnet*.

Folks, the White House publishes online its Visitor Access Records, and heavens help them, there are lots of names listed there; some even include middle names!

On March 16, 2009, just as the new president came to office, the State Department’s Bureau of Administration released an FOIA Guidance from the Secretary of State to the department employees.  In says in part:

On his first full day in office, President Barack Obama signed two memoranda on openness in government – one ushering in a new era of transparency in government, the other ordering a presumption of disclosure in the implementation of the Freedom of Information Act (FOIA). The State Department will be at the forefront of making this commitment a reality.
[…]
As a Department, we should respond to requests in a timely manner, resolve doubts in favor of openness, and not withhold information based on speculative or abstract fears.
[…]
We need every Department employee to manage the challenge of informing the public and protecting information in a way that fulfills the President’s strong commitment to transparency.

Well, what about that, huh?

In any case, the Department of Justice FOIA Guide on Exemption 6 notes that “Personal privacy interests are protected by two provisions of the FOIA, Exemptions 6 and 7(C). … Exemption 6 permits the government to withhold all information about individuals in “personnel and medical files and similar files” when the disclosure of such information “would constitute a clearly unwarranted invasion of personal privacy.” (1)

The Guide also says that “In some instances, the disclosure of information might involve no invasion of privacy because, fundamentally, the information is of such a nature that no expectation of privacy exists. (49) For example, civilian federal employees generally have no expectation of privacy regarding their names, titles, grades, salaries, and duty stations as employees (50) or regarding the parts of their successful employment applications that show their qualifications for their positions.” (51)

Also this: “if the information at issue is particularly well known or is widely available within the public domain, there generally is no expectation of privacy. “

You should know that we have no expertise on FOIAs. But the State Department on this FOIA case managed to use the (b)(6) exemption to redact the names of the Assistant Secretary of the Bureau of Consular and that “Desk Officer for Singapore Visa matters.”

Here’s a person of the street question: Why would anyone think that disclosing Janice J. Jacobs‘ name as Assistant Secretary of the Bureau of Consulate Consular Affairs (she is on Wikipedia, by the way) would constitute an “unwarranted invasion of personal privacy?” 

C’mon, folks, you gotta admit, this is totally hilarious!

 

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Let’s compare this to the  emails released under FOIA on the Keystone XL meetings. Also redacted but as you can see on the emails here, the State Department did not use the (b)(6) exemption and instead used (b)(5) which protects “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” But look how this is marked:

Screen Shot 2014-04-22

Click on image to read the released emails.

The FOIA super ninja we consulted (thanks J!) suggested that an immediate appeal be filed.  Mr. Requester told us he already sent in an appeal.  We just hope the response to his appeal would not take two years, and would not include scrawny (b)(6)s for decorations.

Seriously. Do you realize  that if the State Department continue to slap (b)(6)s on FOIA’ed docs so thoughtlessly like this, that the agency will be at the forefront of making President Obama’s commitment to “transparency in government” and “presumption of disclosure” a laughing matter? Pardon me, it is already a laughing matter?  Well, a  competition then on who will be at the forefront.  

Folks, you need to fix this or we may be forced to start a rock band called Twisted Hilarity.    

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$6 Billion Alert. What Does The Spox Say? Goring-ding-ding-ding … “Grossly Inaccurate” But ….

— Domani Spero

 

Last week, State/OIG issued a Management Alert on Contract File Management Deficiencies at the State Department. The Alert is reportedly intended to well, alert senior Department management to the serious nature of this issue and provides “recommendations to assist in eliminating or mitigating those vulnerabilities.” The main thing is this:

“In sum, over the past 6 years, our audit work has uncovered significant contract file management deficiencies in Department contracts/task orders with a total value of more than $6 billion.”

The alert dated March 20, 2014 was addressed to the Under Secretary for Management Patrick F. Kennedy and the Assistant Secretary of Administration Joyce A. Barr. The signatory of this Management Alert is not State/OIG Steve Linick but three of the four Assistant Inspector Generals of State/OIG namely: Norman P. Brown, Assistant Inspector General for AuditsRobert B. Peterson, Assistant Inspector General for Inspections;  Anna S. Gershman, Assistant Inspector General for Investigations.  Mr. Brown has been AIG since July 2013, Mr. Peterson since 2003, and Ms. Gershman since 2011.  The official response to this alert is dated March 28, 2014 from Ms. Barr who as head of the Bureau of Administration reports to Mr. Kennedy at “M.” Ms. Barr has been “A” since 2011.  Mr. Kennedy has been “M” since 2007.

Do you know why it took six years for this alert to be issued? And how is it that this alert is not addressed to the State Department’s Deputy Secretary for Management and Resources Heather Higginbottom?

Since $6 billion is a lot of resources spent, it made a huge splash — described as “lost,” “missing,” “misplaced,” “lacks files,” or “not totally sure” where the money went.

It made the Daily Press Briefing, of course:

QUESTION: Marie, do you have any comment on the OIG report that was made public today on the $6 billion?

MS. HARF: I do. Just give me one second. Well, reports that there is a $6 billion that can’t be accounted for are grossly inaccurate. The OIG’s report noted that there were a number of incomplete files for our contracts and that these contracts’ cumulative value was about 6 billion. As highlighted in our response to the OIG, this is an issue of which the Department is aware and is taking steps to remedy. It’s not an accounting issue. I think it’s more like a bureaucratic issue. But it’s not that we’ve lost $6 billion, basically.

On March 20th, our new Inspector General did issue a management alert on contract file management deficiencies. The Bureau of Administration responded with a plan to address their three recommendation. Those are all posted on the IG’s web page now.

QUESTION: So how much money can you not account for if it’s not 6 billion?

MS. HARF: I have no idea.
[…]
QUESTION: But it’s way less than 6 billion? I mean, you said it was grossly inflated.

MS. HARF: Grossly inaccurate. Uh-huh.

QUESTION: Okay. So do – you must have —

QUESTION: What’s a rounded-up figure —

MS. HARF: I’m not – no —

QUESTION: You must have an estimate of what it is if you have an understanding —

MS. HARF: It’s my understanding that it’s not an accounting issue. It’s not that we can’t account for money. So I don’t – I’m not sure that there’s any money that we can’t account for.

QUESTION: So how is it grossly inaccurate, then?

MS. HARF: Because it’s not that there’s $6 billion we can’t account for. They said there were incomplete files —

QUESTION: Right.

MS. HARF: — and that the files were – their cumulative value for those contracts was about $6 billion. So it’s a filing issue. It’s not a “we lost money” issue.

QUESTION: So you’re sure that you know where all that money is even though you acknowledge that the files are not complete?

MS. HARF: I – that’s my understanding, yes. But again, all of this is posted on the IG’s website in much more detail.

QUESTION: But —

MS. HARF: I don’t have the $6 billion.

QUESTION: Yeah. I mean, I just – (laughter) – it sounds like it may be more of a distinction without a difference, saying it’s an accounting error, like maybe —

MS. HARF: No, because the notion that we can’t find $6 billion, right, would mean that it’s an accounting issue, that somehow we lost money that – you can understand why when people hear that they think that it means we’ve lost $6 billion. That’s my understanding that that’s not the case.

QUESTION: Yes, please. I mean, regarding this IG issue, it’s like every other day something is coming out of —

MS. HARF: IG’s been very busy, apparently.

QUESTION: Yeah. I mean, because there was no IG before, no five years.

MS. HARF: We have a new IG, yep.

QUESTION: Yeah, it came on September. Yeah. I mean, I’m trying to figure out – I mean, when he’s like – when you say grossly and inaccurate, does he presenting these things with information or just like a number?

MS. HARF: Yeah. So the way the IG works in general – and I don’t have the details about their methodology here – is they are independent and they undertake independent reviews, some I understand that are done just routinely, some I think are in response to people submitting things to them. And in general, after the IG does a draft report they submit it to either the post overseas or the office here or the bureau that deals with it so they can have a chance to review it and comment on it and to begin implementing recommendations, if there are any that they think are helpful. So there’s a process here. Then they eventually release the final report that sometimes takes into account comments, sometimes they disagree. We have a variety of ways to respond.

QUESTION: The reason I am asking because these things are related more about overseas activities and contracts. Does the State Department officially – when you say grossly inaccurate, are you going to say what is accurate?

MS. HARF: Yes. And as I said, our response and the entire report is up on the IG’s website. I’m happy to dig into it a little bit more. But yes, we do. I mean, that’s why we give responses and they’re published.

A good excuse to post this again:

Below are some of the cases specified in the $6 billion State/OIG alert:

  • A recent OIG audit of the closeout process for contracts supporting the U.S. Mission in Iraq revealed that contracting officials were unable to provide 33 of 115 contract files requested in accordance with the audit sampling plan.  The value of the contracts in the 33 missing files totaled $2.1 billion.
  • Forty-eight of the 82 contract files received did not contain all of the documentation required by FAR 4.8. The value of the contracts in the 48 incomplete files totaled an additional $2.1 billion.
  • An ongoing OIG audit of Bureau of African Affairs contracts revealed that CORs were unable to provide complete contract administration files for any of the eight contracts that were reviewed. The value of these contracts totaled $34.8 million.
  • In two joint audits conducted with DoD OIG,5 we found that, for two task orders valued in excess of $1 billion, the Bureau of International Narcotics and Law Enforcement Affairs had neither ensured that the COR for the Civilian Police contract in Afghanistan established or maintained contracting files that were complete and easily accessible, nor finalized and fully implemented standard operating procedures for maintaining COR files.
  • A joint audit with SIGIR,  we reviewed four task orders from the Worldwide Personal Protective Services II contract, with an estimated total cost of $1 billion as of May 29, 2008, and found that COR files maintained in both Washington, DC, and Baghdad, Iraq, were not accessible, complete, or maintained in accordance with Department policy.
  • One investigation revealed that a contract file did not contain documentation reflecting that modifications and task orders were awarded to the company owned by the spouse of a contractor employee performing as a Contract Specialist for the contract. This contract was valued at $52 million.  (Note: We think this is the relevant case – Former State Department Contract Employee And Husband Plead Guilty To $53 Million Fraud)
  • In another investigation, OIG found that a CO falsified Government technical review information and provided the contractor with contract pricing information. The related contract file was not properly maintained and for a period of time was hidden by the CO. This contract was valued at $100 million.
  • In a third investigation, OIG found that a COR allowed the payment of $792, 782 to a contractor even though the contract file did not contain documents to support the payment. Furthermore, an additional OIG investigation revealed that the contract file was missing a COR appointment letter required by FAR 1.602-2 (d).
  • COR files for a $2.5 million contract lacked status reports and a tally of the funds expended and remaining on the contract. OIG discovered other instances in which contract files lacked contract performance documentation and COR appointment and training certification; CORs failed to maintain technical information and performance records needed to monitor contractor performance; and COR filing systems were disorganized.

 

The Management Alert issued concludes that “The failure to enforce those requirements exposes the Department to significant financial risk and makes OIG oversight more difficult. It creates conditions conducive to fraud, as corrupt individuals may attempt to conceal evidence of illicit behavior by omitting key documents from the contract file. It impairs the ability of the Department to take effective and timely action to protect its interests, and, in turn, those of taxpayers. Finally, it limits the ability of the Government to punish and deter criminal behavior.”

If these contract documents were never completed, what is there to file? If these were filed but misplaced, how do you find files that date back to 2008 for instance on the Worldwide Personal Protective Services II contract in Iraq? Also, without accurate files how do we even know that “It’s not a “we lost money” issue?” 

This is the second Management Alert issued by State/OIG under Steve Linick this year. We have not been able to locate previous management alerts issued by any of his predecessors as Inspector Generals of the State Department.  Perhaps they’re available, not just to the public. But this scrub down is smart.  Every new sheriff should do it. We’re also looking forward to the next alert. It’ll tell us where the new IG is looking under the hood.

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Related items:

-03/31/14   Management Alert – Contract File Management Deficiencies (MA-A-0002)  [1768 Kb]  Posted online April 3, 2014

-01/13/14   Mgmt Alert on OIG Findings of Significant and Recurring Weaknesses in the Dept of State Info System Security Program (MA-A-0001)  [6298 Kb]  Posted online January 16, 2014

 

 

 

 

 

 

 

 

 

 

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