CASE CLOSED … what really happened in the 2001 anthrax attacks?

* GAO: What rules govern the spoliation of documents by United States agencies? Do rules analogous to those applicable to civil litigation apply?

Posted by Lew Weinstein on November 30, 2011

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10 Responses to “* GAO: What rules govern the spoliation of documents by United States agencies? Do rules analogous to those applicable to civil litigation apply?”

  1. DXer said

    In the suit brought by the former lead Amerithrax investigagtor Richard L. Lambert litigation hold letters have gone out. Nowadays, much, if not most, of the communication is by electronic email, as illustrated by the emails that Attorney Connolly obtained in the Hatfill litigation.

  2. DXer said

    Attorney James Kovakas says that a DOJ attorney was under no obligation to preserve the sworn statement of the Attorney General Ashcroft, Former FBI Director Mueller Former US Attorney, lead prosecutors and investigators in the Amerithrax investigation.

    Compare

    http://www.justice.gov/archive/transition/protect.htm

    The lead prosecutor pled the Fifth Amendment privilege against self-incrimination numerous times. His daughter came to represent anthrax weapons suspect Ali Al-Timimi for free.

    Lead DOJ defense counsel in the Hatfill litigation, Elizabeth Shapiro wouldn’t throw out such a civil deposition, would she? (IMO, no).

    Although undoubtedly experienced, is Attorney Kovakas correct in understanding DOJ records and information management? Is he correct that DOJ prosecutors can fail to preserve sworn depositions in the litigation matters that they conduct?

    The underlying Amerithrax investigation was still ongoing in mid-2008 and throughout 2009. Indeed, the FBI’s “Ivins Theory” was hotly disputed and said to be Hatfill Theory redux. Amerithrax, I believe, is the biggest criminal investigation in the history of the Department.

    The “Hatfill Theory” was part of the same unstoppable train wreck as the “Ivins Theory.” There was a change of cars (investigators), but it was the same flawed train of reasoning and the investigators never overcame the earlier truncated emphasis of the investigation.
    Posted by Lew Weinstein on May 10, 2011
    https://caseclosedbylewweinstein.wordpress.com/2011/05/10/the-hatfill-theory-was-part-of-the-same-unstoppable-train-wreck-as-the-ivins-theory-there-was-a-change-of-cars-investigators-but-it-was-the-same-flawed-train-of-reasoning-and-the-inve/

    http://www.amerithrax.wordpress.com

    3/3/09 – Holt introduces Anthrax Commission Legislation … Rep. Rush Holt (NJ-12) today introduced the Anthrax Attacks Investigation Act of 2009, legislation that would establish a Congressional commission to investigate the 2001 anthrax attacks and the federal government’s response to and investigation of the attacks. … “All of us – but especially the families of the victims of the anthrax attacks – deserve credible answers about how the attacks happened and whether the case really is closed,” Holt said. … Under Holt’s legislation, the commission would be comprised of no more than six members of from the same political party. The commission would hold public hearings, except in situations where classified information would be discussed. … The Commission’s final report would be due 18 months after the Commission begins operations. … “Myriad questions remain about the anthrax attacks and the government’s bungled response to the attacks,” Holt said. “One of the most effective oversight mechanisms we can employ to get answers to those questions is a 9/11 style Commission.”

    Did the failure to preserve the civil depositions constitute spoliation of evidence?

    While I try to help James locate the civil depositions in the bowels of the US DOJ, let’s consider “DOJ Basic Records and Information Management.” I have uploaded lengthy excerpts but need the full depositions processed under FOIA.

    http://www.justice.gov/archive/transition/protect.htm

    All Department of Justice employees and contractors are responsible and accountable for creating and keeping accurate and complete records of their activities. Regardless of physical form or characteristics, if you handle documentation — enter records into a database, file a document in a folder, answer an inquiry from the public, respond to a FOIA request, or do anything else that documents your activities for the DOJ — you are a records creator and custodian. You are responsible and accountable for the records that you create or receive.

    What is a Record?
    The Federal Records Act states that a federal record is documentation that:

    • Is created or received in any medium by an agency of the U.S. Government pursuant to law or in the transaction of business.
    • Is preserved, or appropriate for preservation, because it provides evidence of an Agency’s organization, functions, decisions, procedures and transactions. (44 U.S.C. 3301) For the statutory definition of a record visitArchives.gov.
    How do I Identify the Records of my Office?
    Examples of DOJ documents that are likely to be records under the Federal Records Act:

    • Business records: litigation case files, correspondence, agreements, studies
    • Action records: FOIA requests, correspondence, invoices, formal responses to requests Records that document DOJ activities: calendars, meeting minutes, reports
    • Records mandated by statutes or regulations: case files, decisions
    • Records of financial or legal claims: litigation case files, contracts, personnel and payroll
    Non-records are documents that do not belong in official files:

    • Personal papers not related to DOJ: sports schedule, shopping lists
    • Reference materials: professional journals, vendor catalogs
    • Convenience copies: duplicates of publications, extra copies of record documentation
    What are my Records Management Responsibilities?

    You are responsible and accountable for the records that you create or receive. That means

    ***
    • Protecting records from loss, damage, improper destruction, and unauthorized disclosure
    • Coordinating the disposition of records with the component records officer/manager
    ***

    What are the Risks of Poor Management of Records?

    • Increased difficulty or inability to complete your work and meet your responsibilities
    • Difficulties in fulfilling FOIA or litigation requests
    • Criminal or civil penalties, fines and/or imprisonment for:
    • The unlawful removal or destruction of federal records (18 U.S.C. 2071)
    • The unlawful disclosure of national security information (18 U.S.C. 793,794,& 798)
    • The improper handling of records containing other information exempt under the Freedom of Information Act (5 U.S.C.552), the Privacy Act (5 U.S.C. 552a), and other information to which access is restricted by law.

    • DXer said

      In connection with the request for the Hatfill depositions, the Department of Justice is simply saying that they did not preserve the depositions — which consist of sworn statements made under penalty of perjury in front of a court reporter.

      We know in Hatfill v. US that they were ordered by the DOJ because the transcripts were cited and quoted in motion practice. We even know who defended each deposition. Those attorneys each need to be asked as part of the search for the depositions.

      But let’s take a detour to the filings this summer briefing the merits of the FOIA lawsuit brought by Ken.

      We can best understand DOJ’s understanding of FOIA law relating to adequacy of a search by studying their briefing in pending court actions.

      “ARGUMENT

      I. Defendant Has Performed An Adequate Search For Responsive Documents.

      To prevail in a FOIA case, a requester must show that an agency has “(1) ‘improperly’ (2) ‘withheld’ (3) ‘agency records.'” Department of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989) (quoting Kissinger v. Reporters Comm. for Freedom of Press, 445 U.S. 136, 150 (1980)); see 5 U.S.C. ‘ 552(a)(4)(B). The agency’s burden is to establish that it has conducted a search reasonably calculated to uncover all responsive records. Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990). Under the FOIA an agency has a duty to conduct a “reasonable” search for responsive records. See, e.g., Baker & Hostetler LLP v. Department of Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006); Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325-26 (D.C. Cir. 1999); Campbell v. Department of Justice, 164 F.2d 20, 27 (D.C. Cir. 1998); Oglesby v. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). Although the adequacy of the search is “dependent upon the circumstances of each case,” Truitt v. Department of State, 897 F.2d at 542, the agency “must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68; SafeCard Servs. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991). In this connection, it is axiomatic that the fundamental question is not “‘whether there might exist any other documents possibly responsive to the request, but rather whether the search for those documents was adequate.'” Steinberg v. Department of Justice, 23 F.3d 548, 551 (D.C. Cir. 1994) (quoting Weisberg v. Department of Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984)); accord Nation Magazine v. Customs Service, 71 F.3d 885, 892 n.7 (D.C. Cir. 1995); Meeropol v. Meese, 790 F.2d 942, 952-53 (D.C. Cir. 1986). The FOIA does not require that an agency search every division or field office on its own initiative in response to a FOIA request when responsive documents are likely to be located in one place. Kowalczyk v. Department of Justice, 73 F.3d 386, 388 (D.C. Cir. 1996); Marks v. Department of Justice, 578 F.2d 261,” 263 (9th Cir. 1978). Nor does the FOIA require that an agency search every record system. Oglesby, 920 F.2d at 68.”

      “The “[f]ailure to turn up [a specified] document does not alone render [a] search inadequate.” Nation Magazine, 71 F.3d at 892, n.7. Nor is the issue before the Court “whether there might be any further documents,” Kowalczyk, 73 F.3d at 388; rather, it is whether the search was adequate. Weisberg, 745 F.2d at 1485. In order to prove that its search was reasonable, the agency is entitled to rely upon affidavits, provided that they are “relatively detailed, nonconclusory, and submitted in good faith.” Pollack v. Bureau of Prisons, 879 F.2d 406, 409 (8th Cir. 1989); Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982) (“affidavits that explain in reasonable detail the scope and method of the search conducted by the agency will suffice to demonstrate compliance with the obligations imposed by the FOIA”). The affidavits must show “that the search method was reasonably calculated to uncover all relevant documents,” and should “explain how the search was conducted.” Oglesby, 920 F.2d at 68.

      Here, the FBI performed a reasonably thorough search and followed up on reasonable leads. The first and second Hardy Declarations together describe the FBI’s Central Record System and how the FBI searched it for information about the detention of Moussaoui. 1st Hardy Decl., ¶ 10; 2d Hardy Decl., ¶¶ 24-31. The
      Central Records System contains all pertinent information acquired by the FBI in fulfilling its law enforcement responsibilities. 2d Hardy Dec., ¶¶ 24-29. And Mr. Hardy explains how the FBIHQ searched its general indices for the FBI=s Central Records System, including the search terms, and then proceeded to the step of using text searches, and upon those electronic searches not uncovering any responsive records, the FBI’s contacting one of its special agents with knowledge of the Moussaoui investigation to locate responsive records. Id. ¶ 31. Through the information provided by the special agent with knowledge of the Moussaoui investigation, the FBI was able to locate some records directly and others in the Central Record System. See id. All responsive information that was located was processed under the FOIA, and the non-exempt material was released on August 26, 2013. See id.

      Accordingly, the Court should find that the FBI searches were reasonably thorough and included all systems reasonably expected to contain responsive information, and the FBI also appropriately followed up on an obvious lead by contacting the special agent working on Moussaoui’s case.”

      So in the case of Dillon v. United States, the search included contacting the relevant employee. Here, to locate a civil deposition, you contact the person who conducted the deposition or who used it in briefing the motions in the case.

      Now I don’t know the particulars of the search that James Kovakas or his designee conducted. (I sense that like the FBI’s Dave Hardy, who supervises 200 employees, James has a similarly extensive overarching responsibility). This morning he said he didn’t want to discuss the details but noted in passing that it wasn’t even established that such depositions were conducted. That, to me, confirmed his lack of familiarity with the search that was conducted or should have been conducted. ( I appreciate that it is a very big country and he supervises the handling of many requests.) I am only urging that his designee make the necessary contacts and succeed in turning up the documents.

      Upon DOJ’s failed search, I emailed one of the prosecutors, Attorney Freeborne, to ask him. And it is a simple matter to go through all the attorneys, to include the attorneys who relied upon the depositions in briefing. I don’t get the sense James was personally involved because he didn’t even know that the individuals had in fact been deposed and that I had ready proof by reason of having excerpts from all of the depositions.

      In a litigation matter, one is provided a list of attorneys associated with each brief, and so it is a simple matter to identify the DOJ Civil Division personnel who was working with all the depositions — and who defended a particular deposition. Amerithrax deposition excerpts identify the DOJ Civil Division attorney who represented the individual

      With each prosecutor, I’ll seek confirm that they are not the one who, for example, threw the sworn testimony of the United States Attorney General into the trashcan.

      It shouldn’t be necessary to make a federal case out of it. DOJ Civil FOIA should simply go back and do a better search and this time come up with the depositions and stop with the BS withholding of documents on the eve of the GAO report reviewing the DOJ’s conduct of the Amerithrax investigation.

      For example, the Dwight Adams deposition was conducted on January 11, 2006. I recall Dwight Adams to be head of the FBI lab. The deposition was defended by Mr. Freeborne. Attorney Freeborne then saw the litigation to its end two years later when in 2008 the DOJ agreed to pay Dr. Hatfill $5.8 million. By email, I asked Mr. Freeborne today if he failed to preserve the deposition (which would violate the DOJ regulations I’ve linked). I told him that I don’t think he did fail to preserve the depositions.

      These records are electronic and so there wouldn’t even be copying costs.

      The Ashcroft deposition was conducted on December 9, 2005. He was represented by Elizabeth Shapiro. Did James Kovakas or his designee ask Elizabeth whether she destroyed the Attorney General’s sworn statement? (I’m confident she didn’t cause it to be thrown out). She too saw the matter through to the end when they agreed to pay Dr. Hatfill $5.8 million.

      Timothy Beres was deposed on December 21, 2005. He was represented by Attorney Modlinger. I very highly doubt that Mr. Modlinger destroyed the sworn deposition of Mr. Beres. Was he ever even contacted and asked?

      For each deposition, I have linked proof that it was conducted, to include the date. The excerpts identify the DOJ attorney who handled the particular deposition. The folks who needed to master all of the depositions, however, was the attorney who drafted the material facts not in dispute in support of the government’s motion for summary judgment. (The burden of doing the greatest amount of document work commonly falls to the most junior attorney).

      You and I may not be able to find a clean pair of socks. But these people are good at what they do and won their coveted litigation jobs with the US DOJ precisely because they are so well-organized and have such mastery of detail.

      They simply don’t throw out things like a sworn statement of the FBI Director Mueller in the biggest criminal case in history. That’s not how they roll.

      And DOJ CIvil FOIA should not make it seem that it is.

      So whoever is playing hide-the-ball needs to stop it.

      I am giving you a chance to redact whatever you like for cripes sake pursant to FOIPA. Get a clue.

    • DXer said

      Consider the example of the civil deposition of Arthur Eberhard who played a key role in putting together the science squad.

      He was deposed on May 24, 2006. He was represented by DOJ Civil Attorney Freeborne. (see p. 32)

      Missing pages include 2-8, 28-30, 57-60, 68, 79-83, 92-98, 104 to end. DOJ FOIA Civil should conduct a more thorough search for the Eberhard civil deposition. Attorney Freeborne and his colleagues were using the deposition in its electronic form.

      I have emailed Attorney Freeborne to ask if he threw it out. I realize they are busy and do important work — and I hate to impose. But I think that if a better search is done, he or his colleagues will be able to lay their hands on it. For the GAO review and the public understanding, it is important to have the full copy of the civil deposition of this fellow who put together the biosquad and who was being questioned under oath about the anthrax smelling dogs that kept the FBI focused on Hatfill for most of the Amerithrax investigation instead of Atta’s colleague Adnan El-Shukrijumah. The public only didn’t learn about Adnan because of the wrongful withholding of information and documents from the Joint Inquiry and the 911 Commission. Let’s learn from our mistakes.

      “I brought into Washington field a lot of my former colleagues, my former agents who worked on my team.

      Q Because of their expertise?

      A Because of their experise, yes. We had many people that were well-trained in bioweapons, several doctors, PhD doctors. We had the biosquad set up.

      I became more involved with the science portion of the case until probably — again, I’m estimating these dates, probably late spring of 2002. I became more involved with just day-today involvement with the investigation.

      Q Why was that? And I’m not trying to get into —

      A. No. It just grew. I mean because of the size. I basically functioned between my ASAC at that time and Mr. Harp.


      Q. Would you say that you had day-to-day involvement in the anthrax investigation?

      A. … By, again, late spring of 2002, it was pretty much all I was doing any more.” (p. 16)

      “I sat in on daily briefings with case agents; with the supervisors, who were Jack Hess and Dave Wilson at that time; the case agents; adn I sat in on briefings with the director.

      Q. How many times did you sit in on briefings with the director?

      A I’m going to have to really estimate that number. Probably — it was weekly. I’d say 15 to 20 times. They were basically Friday afternoon.” (p. 16).

      ****

      Q Was Director Mueller made aware of the details of the investigation as it progressed?

      A Absolutely.

      ***

      A When I left the FBI, Dr. Hatfill was our main focus.


      Q. So you left the FBI know Dr. Hatfill was the primary focus of the investigation. That was your belief was when you left; correct?

      A Yes.

      ***

      Q And do you recall whether you had any questions about whether Dr. Hatfill, his presence of absence in Florida around the time the first
      anthrax letter was mailed to the American Media Corporation?

      A. I don’t know if I ever had that conversation or not with him.”

      ***

      Q Let me jump a couple of paragraphs from the top. “Agents were led to the pond last year by bloodhounds who were tracking
      Hatfill’s scent and the scent from the anthrax letters.” Do you recall having a conversation with Mr. Walter about bloodhounds?”

    • DXer said

      Is the GAO going to be deprived of the sworn civil deposition testimony of Rex Stockham, who has written extensively about the use of bloodhounds, to include their use in connection with the Fall 2001 anthax mailings? Agent Stockham is the program manager for the FBI’s forensic canine program. (p. 20) Mr. Freeborne, again, defended. Attorney Freeborne has not gotten back to me as to whether he destroyed Agent Stockham’s civil deposition.

      Missing pages include but are not limited to 2-17, 21-36, 48-86, 97-172, 184-194.

      Agent Stockham may have testified that the dogs were brought to Bruce Ivins and they did not alert to him — leading to the conclusion, for those who believe in Tinkerbelle, that they were barking up the wrong tree in switching to an “Ivins Theory.”

      But if Civil FOIA James tells me again that Attorney Freeborne destroyed Agent Stockham’s civil deposition, I would ask the attorney whether he realized it was an agency record that under DOJ guidance needed to be preserved.

      http://www.justice.gov/archive/transition/protect.htm

  3. DXer said

    The Civil Division reports that it also did not preserve the civil depositions that they provably had of the individuals below. When were the depositions thrown out? Who threw them out? What are the rules that apply under the records retention regulations that apply? GAO was asked to conduct a review shortly after the settlement with Hatfill in 2008. Do common law spoliation principles apply?

    John Ashcroft [United States Attorney General],
    Robert Mueller [FBI Director],
    Roscoe Howard [United States Attorney],
    Kenneth Kohl [lead AUSA],
    Dwight Adams [head of FBI science lab],
    Robert Roth [lead investigator],
    Daniel Seikaly [lead prosecutor],
    Steven Hatfill [defendant paid $5.8 million],
    and others.

  4. DXer said

    A useful summary of the law relating to USAMRIID’s destruction of the executed copy of Animal Protocol B01-11 is found in the 3rd edition of the treatise on SPOLIATION OF EVIDENCE.

    Spoliation of Evidence: Latest book edition released by Porter Wright authors Koesel, Turnbull

    Book discusses sanctions and remedies for destruction of evidence in civil litigation

    CLEVELAND, Oct. 18, 2013 /PRNewswire/ — Margaret M. Koesel andTracey L. Turnbull, partners in the Cleveland office of Porter Wright Morris & Arthur LLP, have co-authored the third edition of their book, Spoliation of Evidence, published by the American Bar Association (ABA) in August 2013.

    “We are pleased to offer a ready resource to help resolve problems in litigation involved with the destruction of evidence, or spoliation of evidence, that may add expense, potential tort liability or sanctions that may be outcome determinative,” said Koesel.

    Turnbull agrees; “Whether you are counseling clients in avoiding litigation or are representing parties in the litigation process, issues involving the destruction of evidence inevitably arise. Our book offers guidance through critical matters, including the negative publicity some cases generate when there is evidence that may have been destroyed.”

    The refreshed edition serves as a guide for the litigator faced with the loss of evidence in a civil suit in a state or federal court. Topics covered in the book include record-keeping obligations, the duty to preserve evidence, independent causes of action for the destruction of evidence, available sanctions and other remedies for spoliation, criminal sanctions for spoliation and developing spoliation law in state and federal courts.

  5. DXer said

    http://www.newsmax.com/Newsfront/rodriguez-waterboarding-obama-pelosi/2012/04/30/id/437505

    KSM, as the mastermind of 9/11 was known, would not cooperate at first.

    “He eventually told us, ‘I will talk once I get to New York and I get my lawyer,’ ” Rodriguez recalls in the “60 Minutes” interview. But “it was the cumulative effect of waterboarding and sleep deprivation and everything else that was done that eventually got to him.”

    Rodriguez says he got information that enabled the CIA to disrupt at least 10 large-scale terrorist plots.

    But when Stahl reminded him the CIA’s own inspector general said that his enhanced interrogation program did not stop any imminent attack, Rodriguez says, “We don’t know … if, for example, al-Qaida would have been able to continue on with their anthrax program or nuclear program … or sleeper agents … working with Khalid Sheik Mohammed to take down the Brooklyn Bridge, for example.”

    Rodriguez also made headlines when he ordered the destruction of videos showing waterboarding. He did it, he writes, because he was tired of waiting for Washington’s bureaucracy to make a decision that protected American lives.

    The chapter about the interrogation videos adds few new details to a narrative that has been explored for years by journalists, investigators and civil rights groups. But the book represents Rodriguez’s first public comment on the matter since the tape destruction was revealed in 2007.

  6. DXer said

    Government Settles Case Brought by First Anthrax Victim for $2.5 Million
    by Greg Gordon, McClatchy Newspapers, Stephen Engelberg, ProPublica and Mike Wiser, PBS Frontline Nov. 29, 2011, 5:30 p.m.

    Excerpt:

    The settlement ended a secrecy-shrouded, eight-year court fight shortly before U.S. District Judge Daniel Hurley of West Palm Beach, Fla., was due to either grant a Justice Department motion to dismiss the suit or to send the case forward to trial. By settling, the government protected from public scrutiny a sizable cache of documents about its secretive biological weapons program.

    At issue was whether a leading U.S. Army bio-weapons laboratory in Frederick, Md., was negligent in failing to adequately secure its anthrax stocks, possibly enabling a mentally troubled researcher at the lab to carry out the attacks.

    Bruce Ivins, the researcher whom the FBI fingered as the anthrax mailer shortly after his 2008 suicide, studied anthrax for more than a quarter of a century at the lab, the U.S. Army Medical Research Institute of Infectious Diseases (USAMRIID) at Ft. Detrick. While the FBI never turned up hard proof that Ivins carried out the killings, the bureau amassed a circumstantial case against him.

    Regardless of whether Ivins was the perpetrator, sophisticated genetic tests showed that a flask of anthrax under his control contained the same genetic markers as those in the deadly spores found in the letters, suggesting Ivins’ anthrax may have been the parent material. As many as 219 people had access to spores distributed from Ivins’ flask, government documents have stated.

    The suit was the only one to progress so far on behalf of any of the 22 people sickened by as many as seven anthrax letters mailed to media outlets in New York and Florida and to the Washington offices of two U.S. senators.

    At least a dozen attorneys from the Justice Department’s Civil Division aided in defending the suit. Even so, they caused a major embarrassment last summer when they said in a court filing that Ivins lacked the specialized equipment in his containment laboratory needed to produce the anthrax used in the attacks. Chastened by the FBI and the department’s Criminal Division, they soon filed 10 corrections withdrawing their assertions.

    Lawyers for Maureen Stevens and her children vacillated during the case on whether to accept that Ivins was the killer. They ultimately contending that the government shouldn’t have permitted him to work with a deadly pathogen such as anthrax after learning he was receiving treatment for mental health problems.

    In any event, they argued, security at the lab was so lax that a tiny amount of anthrax could have been whisked from the facility in any number of ways and used to grow the trillions of spores used in the mailings.

  7. DXer said

    I’m told that the FBI does not have the attachments that USAMRIID does. That surprises me. How can AUSA Lieber and lead investigator Ed discuss the rabbit formaldehyde experiment without reading the protocol which describes it? Is that why they have never mentioned the word “rabbits” — not even once?

    I would have expected that the FBI, in obtaining the terrabytes of information, also would have been certain to get the attachments — at least for those individuals with access to Ames for the relevant Fall 2001 period. That’s where the most meaty stuff is nowadays.

    Sometimes it is a 42 -page document containing the protocol for an experiment Sometimes NGAV meeting minutes. Sometimes a powerpoint presented to the NGAV. Sometimes calendars. Typically far more meaty than goes into the actual transmitting email.

    In 2009 and 2010, the DOJ and FBI reviewers caused some emails to be pulled and to not be produced. GAO should inquire as to the justification for withholding any and all documents under FOIA. There should be pages inserted where there was a withheld document with the statutory exemption noted. The requirement that redactions be noted applies also when removing an email from an archive of emails. Scott Shane of the New York Times brilliantly asked for all emails in September 2008. If DOJ and FBI was going to pull some — while overlooking the production of each batch of emails and delaying things by many many months — the pulling of particular emails should have been noted and justified. Otherwise, a false chronology and narrative is being offered up.

    USAMRIID FOIA has a big, unrelated litigation with deadlines. We thank them for their diligence and following up on the status of the 6 attachments that are in the queue. We urge that USAMRIID move forward with any documentation of the DOJ/FBI pulling of emails so as to avoid any trouble down the road.

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