request for expedition: crew: doj-office of public affairs: regarding john yoo emails: 11/23/10

8/7/2019 Request for Expedition: CREW: DOJ-Office of Public Affairs: Regarding John Yoo Emails: 11/23/10

http://slidepdf.com/reader/full/request-for-expedition-crew-doj-office-of-public-affairs-regarding-john 1/14

CREWIcitizens for responsibilityand ethics in washington

November 23,2010

By Fax (202-514-5331) and First-Class Mail

Matthew Miller

Director

Office of Public Affairs

U.S. Department of Justice

Room 1128

950 Pennsylvania Avenue, N.W.

Washington, D.C. 20530-0001

Re: FOrA Request for Expedition

Dear Mr. Miller:

Pursuant to U.S. Department of Justice (DOJ) Freedom ofInformation Act (FOrA)

regulations, specifically 28 C.F.R. § 16.5(d)(2), Citizens for Responsibility and Ethics in

Washington (CREW) requests that you grant its request for expedition of the enclosed ForA

request of this date.

CREW's request seeks copies of all emails to or from former Assistant Attorney General

John Yoo over which the Justice Management Division (JMD) has custody. CREW also seeksall documents concerning DOl's efforts to recover emails from Mr. Yoo.

CREW requests expedition in light of the widespread and exceptional media interest in

this matter and the questions that have been raised about the circumstances under which the

emails ofMr. Y00 were destroyed, the extent to which DOJ has attempted to restore the missing

emails , and DOl's continuing failure to answer inquiries about this matter from Congress and the

National Archives and Records Administration. Just recently Assistant Attorney General Ronald

Weich advised the House and Senate Judiciary Committees that DOJ had review recovered

emails not available to OPR when it conducted its investigation into the actions ofMr. Yoo and

others in drafting the now discredited OLC torture memos, and saw no reason to change

Associate Deputy Attorney General David Margolis' conclusions as reflected in his Decision

Memorandum. But DOJ has refused to make those recovered emails available for public review

and has yet to answer longstanding questions from Congress about the missing emails. Please

note that CREW's prior request for expedition of its February 26,2010 FOrA request related to

this matter was granted. Similarly, expedition is warranted here.

Moreover, as CREW explained it is FOrA request, CREW is a non-profit organization

1400EyeStreet, N.w., Suite 450,Washington , D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax I www .citizensfo reth ics



Matthew Miller

November 23,2010

Page Two

engaged primarily in disseminating information it gathers from a variety of sources, including the

FOrA, and seeks information requested in this FOrA request for the express purpose ofdisseminating it to the public. CREW's website, www.citizensforethics.org, contains links to

thousands of pages of documents CREW acquired from multiple ForA requests, as well as

documents related to CREW's FOrA litigation, other complaints, and CREW reports based in

part on documents acquired through the FOrA. Similarly, CREW posts documents received

through the ForA on www.scribd.org, and its documents have received 468,197 visits since

April 14,2010.

For the foregoing reasons as well as those set forth in CREW's FOrA request of

November 18, 2010, CREW requests that you grant its request for expedition.

Pursuant to 28 C.F,R. § 16.5(d)(3), I hereby certify that the basis for CREW's request forexpedition is true and correct to the best ofmy knowledge and belief.

Sincerely,

Anne L. Weismann

Chief Counsel

Enclosure



CREW Icitizens for responsibilityand ethics in washington

November 23,2010

By Facsimile: 202-616-6695

Joan Lapara

FOIA Contact

Justice Management Division


Room 1111RFK



Re: Freedom of Information Act Request

Dear Ms. Lapara:

Citizens for Responsibility and Ethics in Washington ("CREW") makes this request for

records, regardless of format, medium, or physical characteristics, and including electronic

records and information, pursuant to the Freedom ofInformation Act ("FOIA"), 5 U.S.C. §§ 552,

e t ~ , and U.S. Department of Justice ("DOJ") regulations, 28 C.F.R. Part 16.

Specifically, CREW seeks a copy of all emails from or to former Assistant Attorney

General John Yoo over which the Justice Management Division (JMD) has custody. This

request includes, but is not limited to, all recovered emails referenced in a letter from DOJattorney Jacqueline Colemen Snead (attached as Exhibit A) and all emails referenced in

correspondence ofNovember 5, 2010, from Assistant Attorney General Ronald Weich to the

Senate and House Judiciary Committees.

In addition, CREW seeks all documents concerning DO]'s efforts to recover emails from

Mr. Y00 , including but not limited to efforts described or referenced by Acting Deputy Attorney

General Gary Grindler in his February 26,2010 testimony before the Senate Judiciary Committee

and his recently submitted written follow-up to questions posed by the Committee.

Please search for responsive records regardless of format, medium, or physical

characteristics. We seek records of any and all kind, including electronic records, audiotapes,

videotapes, photographs, and computer print-outs. Our request includes any telephone messages,

voice mail messages, and daily agenda and calendars and information about scheduled meetings.

If it is your position that any portion of the requested record is exempt from disclosure,

CREW requests that you provide it with an index of those documents, as required under Vaughn

v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415 U.S. 977 (1972). As you are aware, a

1400Eye Street,

NW,Suite

450,Washington, D.C.

20005

I202.408.5565

phone I202.588.5020 fax

I www.citizensforethic



Joan Lapara

November 23,2010

Page Two

Vaughn index must describe each document claimed as exempt with sufficient specificity "to

permit a reasoned judgment as to whether the material is actually exempt under FOIA."Founding Church ofScientology v. Bell, 603 F.2d 945, 959 (D.C. Cir. 1979). Moreover, the

Vaughn index must "describe each document or portion thereofwithheld, and for each

withholding it must discuss the consequences of supplying the sought-after information." King v.

Us. Dep 't ofJustice, 830 F.2d 210, 223-24 (D.C. Cir. 1987).

In the event that some portions of the requested record are properly exempt from

disclosure, please disclose any reasonably segregable, non-exempt portions of the requested

record. See 5 U.S.C. §552(b); Schiller v. Nat 'ILabor Relations Bd., 969 F.2d 1205,1209 (D.C.

Cir. 1992). If it is your position that a document contains non-exempt segments and that those

non-exempt segments are so dispersed throughout the document as to make segregation

impossible, please state what portion of the document is non-exempt, and how the material isdispersed through the document. Mead Data Central v. Us. Dep 't of the Air Force, 455 F.2d

242,261 (D.C. Cir. 1977). Claims ofnon-segregability must be made with the same detail as

required for claims of exemptions in a Vaughn index. If a request is denied in whole, please state

specifically that it is not reasonable to segregate portions of the record for release.

Fee Waiver Request

In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 28 C.F.R. § 16.11(k), CREW

requests a waiver of fees associated with processing this request for records. The subject of this

request concerns the operations of the federal government and expenditures, and the disclosures

will likely contribute to a better understanding of relevant government procedures by CREW andthe general public in a significant way. Moreover, the request is primarily and fundamentally for

non-commercial purposes. 5 U.S.C. § 552(a)(4)(A)(iii). See, e.g., McClellan Ecological v.

Carlucci, 835 F.2d 1282, 1285 (9th Cir. 1987).

Specifically, the requested records are likely to contribute to the public's understanding of

the nature of the destroyed emails of John Yoo, as referenced in the July 29,2009 OPR Report,

"Investigation into the Office ofLegal Counsel's Memoranda Concerning Issues Relating to the

Central Intelligence Agency's Use of 'Enhanced Interrogation Techniques' on Suspected

Terrorists," and the extent and timing ofDOrs efforts to restore those emails. Disclosure of the

volume and subject ofMr. Yoo's existing email records, whether in electronic or paper form,

would inform the public about whether and to what extent the destruction of emails was limitedto Mr. Y00 ' s role in drafting the terror memoranda and may have been the result ofwillful

actions by Mr. Yoo or others, in violation ofDOJ policy and federal laws. Disclosure of the

efforts ofDOJ to restore any of the missing emails would inform the public about whether and

the extent to which DOJ and the attorney general have complied with their legal obligations

under the Federal Records Act, and the timeliness ofDOrs response to congressional inquiries

on this matter. Finally, disclosure of the requested emails would allow the public to determine



Joan Lapara

November 23,2010

Page Three

the appropriateness of DO]' s conclusion that none of the restored emails provides any basis tochange the conclusion of Associate Deputy Attorney General David Margolis.

CREW is a non-profit corporation, organized under section 501(c)(3) of the Internal

Revenue Code. CREW is committed to protecting the public's right to be aware of the activities

of government officials and to ensuring the integrity of those officials. CREW is dedicated to

empowering citizens to have an influential voice in government decisions and in the government

decision-making process. CREW uses a combination of research, litigation, and advocacy to

advance its mission. The release of information garnered through this request is not in CREW's

financial interest. In addition, CREWwill disseminate any documents it acquires from this

request to the public through www.scribd.com and CREW's website, which also contains links

to thousands ofpages of documents CREW acquired from multiple FOIA requests. Seewww.citizensforethics.org. CREW's website includes documents relating to CREW's FOIA

litigation, Internal Revenue complaints, and Federal Election Commission complaints

Under these circumstances, CREW fully satisfies the criteria for a fee waiver.

News Media Fee Waiver Request

CREW also asks that it not be charged search or review fees for this request because

CREW qualifies as a "representative of the news media" pursuant to the FOIA and SEC

regulation 17C.F.R. § 200.80(e)(10). InNat'l Sec. Archive v. Us. Dep 't ofDefense, 880 F.2d

1381, 1386 (D.C. Cir. 1989), the Court of Appeals for the District ofColumbia Circuit found theNational Security Archive was a representative of the news media under the FOIA, relying on the

FOIA's legislative history, which indicates the phrase "representative of the news media" is to be

interpreted broadly; "[i]t is critical that the phrase 'representative of the news media' be broadly

interpreted if the act is to work as expected. . . . In fact, any person or organization which

regularly publishes or disseminates information to the public . . . should qualify for waivers as a'representative of the news media.'" 132 Congo Rec. S14298 (daily ed. Sept. 30, 1986) (emphasis

added), cited in id.

CREW routinely and systematically disseminates information to the public in several

ways. First, CREW maintains a frequently visited website, www.citizensforethics.org, that

received 33, 453 visits in October 2010. The website reports the latest developments andcontains in-depth information about a variety of activities of government agencies and officials.

In addition, documents that CREW acquired through its FOIA requests and posted on

www.scribd.org, have received 468,197 reads since April 14, 2010.

Second, since May 2007 CREW has published an online newsletter, CREWCuts, that as

ofOctober 2010 has 17,322 subscribers. CREWCuts provides subscribers with regular updates



Joan Lapara

November 23,2010

Page Four

regarding CREW's activities and information the organization has received from governmententities. A complete archive of past CREWCuts is available at

http://www.citizensforethics.org/newsletter.

Third, CREW publishes a blog, Citizens bloggingfor responsibility and ethics in

Washington, that reports on and analyzes newsworthy developments regarding government ethics

and corruption. The blog, located at http://www.citiznesforethics.org/blog, also provides links

that direct readers to other news articles and commentary on these issues. CREW's blog had

1,089 hits in October.

Finally, CREW has published numerous reports to educate the public about government

ethics and corruption. Examples include: The Revolving Door, a comprehensive look into thepost-government activities of24 former members of President Bush's cabinet; 2009 Most

CorruptMembers ofCongress; 2008 Top Ten Ethics Scandals; 2008 Most Embarrassing Re-

Elected Members ofCongress; and Those Who Dared: 30 Officials Who Stood Up For Our

Country. These and all other CREW's reports are available at

http://www.citizensforethics.org/reports.

Based on these extensive publication activities, CREW qualifies for a fee waiver as a

"representative of the news media" under the FOIA and agency regulations.

Request for Expedition

Pursuant to 5 U.S.c. § 552(a)(6)(E)(I) and 28 C.F.R. § 16.5(d)(iv), CREW requests that

DOJ expedite the processing of this request. As required by DOJ regulations, 28 C.F.R. §

16.5(d)(2), CREW is submitting its request for expedition to the director of Public Affairs. A

copy ofCREW's request is enclosed as Exhibit B.

CREW also requests that DOJ expedite its request pursuant to 28 C.F.R. § 16.5(d)(ii). As

explained above, CREW is engaged primarily in the dissemination of information that it gathers

from a variety of sources, including the FOIA, and seeks the information requested in this FOIA

request for the express purpose of disseminating it to the public. In addition to www.scrib.org

that contains the documents CREW has acquired through the FOIA, CREW's website contains

numerous examples of its efforts, including reports it has published based on information itreceives through the FOIA. For example, CREW's report, "Record Chaos: The Deplorable State

ofElectronic Record Keeping in the Federal Government," was based in significant part on

documents it requested under the FOIA from a variety of agencies, including DOl

There is a particular urgency to inform the public about the circumstances underlying the

destruction of the emails of former high-ranking OLC official John Yoo, especially given the



Joan Lapara

November 23,2010

Page Five

recent assertion by Assistant Attorney General Weich to the Senate and House Judiciary

Committees that its review of recovered emails "that were not available to OPR during itsinvestigation" gave it no reason to "change[] the conclusions ofAssociate Deputy Attorney

General David Margolis as reflected in his Decision Memorandum." Even though DOJ quite

obviously has completed its recovery efforts and review ofthis matter, it has yet to respond to a

request from the National Archives and Records Administration, made in February of this year,

to explain within 30 days the missing records, including a report ifDOJ determines an

unauthorized destruction occurred.

Nor has DOJ responded to written questions to then Acting Deputy Attorney General

Gary Grindler from the Senate Judiciary Committee following his February 26,2010 testimony

before that Committee. The Committee's five follow-up questions ask the following: (1) has

DOJ "opened a formal investigation into the circumstances surrounding the destruction of thesee-mail records"; (2) "[w]hat steps is the Justice Department taking to retrieve the missing

emails"; (3) whether DOJ will "determine whether the destruction ofMr. Yoo's and Mr.

Philbin's e-mails violated any criminal statutes"; (4) whether DOl's inspector general will "be a

part of this investigation"; and (5) whether DOJ will "determine whether Mr. Yoo used a second

e-mail address - including a nongovernmental e-mail- to communicate with officials from the

White House." Despite the passage of nearly nine months, the DOl's only response to date has

been to inform the Committee that the review commissioned by Mr. Grindler "is nearing

completion."

The inconsistency of these messages - that DOJ, on the one hand, is ready to conclude

there is nothing in the recovered Yoo emails to change the conclusions ofthe OPR Report and,on the other hand, cannot yet answer any questions about their destruction - raises a serious

question about whether the Department is attempting to cover up the truth behind the missing

emails and whether it has complied with its obligations under the Federal Records Act. Under

these circumstances, the public has a pressing need for the information contained in the

documents CREW is requesting.

Pursuant to 28 C.F.R. § 16.5(d)(3), I hereby certify that the basis for CREW's request for

expedition, as outlined above, is true and correct to the best ofmy knowledge and belief.

If you have any questions about this request or foresee any problems in releasing fully the

requested records, please contact me at (202) 408-5565. Also, if CREW's request for a feewaiver is not granted in full, please contact our office immediately upon making such



EXHIBIT A



Jacqueline Coleman Snead

Senior Counsel


Civil Division

Federal Programs Branch

20 Massachusetts Avenue N.W. Rm 7214

Washington, DC 20530

Tel: (202) 514-3418

Fax: (202) 616-8470

November 18,2010

FOR SETTLEMENT PURPOSES ONLY

VIA ELECTRONIC MAIL AND FIRST-CLASS, U.S. MAIL

Anne Weismann, Esq.

Citizens for Responsibility and Ethics in Washington

1400 Eye Street, N.W., Suite 450

Washington, DC 20005

Re: CREW v. Department ofJustice, Case No.1 0-750

Dear Anne:

This letter responds to your offer to dismiss the above-referenced lawsuit if the Office of

Legal Counsel ("OLC") explains how and where it located the emails responsive to yourFreedom of Information Act ("FOIA") request for emails to or from former Deputy Assistant

Attorney General John Yoo between June 2001 and May 2003. As explained in OLC's partial

responses to your FOIA request dated August 31,2010 and September 30,2010, OLC conducted

a search of only the paper and electronic records ofMr. Y00 that OLC retained. Upon an

attorney's departure, OLC generally retains a copy of the existing electronic files in a "Departed

Users" folder (containing subfolders arranged by name) in a networked directory labeled "OLC,"

which OLC can access. OLC generally retains hard copy files left by an attorney in boxed

storage. In response to your FOIA request, OLCretrieved the several boxes labeled with

Mr. Yoo's name from storage and located the "jyoo" folder in the "Departed Users" folder. The

boxes and that computer folder were searched for emails within the time period specified in your

FOIA request. I OLC has described the results of that search in letters dated August 31,2010 andSeptember 30,2010 and in the draft Vaughn index provided October 15,2010.

1 As explained in its letter dated August 31, 2010, OLC discovered the folder of another

former OLC attorney in Mr. Yoo's retained email files; that folder was reviewed as well for

responsiveness to CREW's FOIA request. .



- 2 -

Although the above explanation is all the consideration you requested for dismissing the

instant lawsuit, I would like to respond to an implicit question in your November 10,2010 email

to me, in which you mention "a recent AP article" that referenced '''newly found e-mails' sent by

John Yoo." While you did not provide a copy of the article, I did find that phrase in an APposting from November 9,2010. The emails referenced in that article were not located in files

retained and searched by OLe. OLC's search, as described above and explained previously, was

limited to records retained by OLC and did not include "any paper or electronic records of

Mr. Yoo's emails available elsewhere in the Department." See Letter to Anne Weismann from

Paul Colborn (Sept. 30, 2010). The Department informed the Senate Judiciary Committee during

a February 26, 2010 hearing that the Assistant Attorney General for Administration was working

with Department information technology experts to determine whether any ofMr. Y00 ' s emails

(other than those OLC retained) were recoverable. The Justice Management Division is the

custodian of those recovered emails.

I trust that based on this information, you will agree to dismiss this lawsuit with eachparty to bear its own costs, and I will work with you to facilitate that voluntary dismissal. In the

event that you decide to litigate the adequacy ofOLC's search, then I suggest we discuss a

briefing schedule and submit ajoint proposed schedule to the Court. I look forward to hearing

from you soon.

QUELINE COLEMAN SNEAD

Senior Counsel

Federal Programs Branch

Civil Division



EXHIBITB



CREW Icitizens for responsibilityand ethics in washington

November 23,2010

By Fax (202-514-5331) and First-Class Mail

Matthew Miller

Director

Office of Public Affairs


Room 1128



Re: FOIA Request for Expedition

Dear Mr. Miller:

Pursuant to U.S. Department of Justice (DOJ) Freedom ofInformation Act (FOIA)

regulations, specifically 28 C.F.R. § 16.5(d)(2), Citizens for Responsibility and Ethics in

Washington (CREW) requests that you grant its request for expedition of the enclosed FOIA

request of this date.

CREW's request seeks copies of all emails to or from former Assistant Attorney General

John Yoo over which the Justice Management Division (JMD) has custody. CREW also seeks

all documents concerning DOJ's efforts to recover emails from Mr. Yoo.

CREW requests expedition in light of the widespread and exceptional media interest in

this matter and the questions that have been raised about the circumstances under which the

emails ofMr. Y00 were destroyed, the extent to which DOJ has attempted to restore the missing

emails, and DOJ's continuing failure to answer inquiries about this matter from Congress and the

National Archives and Records Administration. Just recently Assistant Attorney General Ronald

Weich advised the House and Senate Judiciary Committees that DOJ had review recovered

emails not available to OPR when it conducted its investigation into the actions ofMr. Yoo and

others in drafting thenow

discredited OLC torture memos, and saw no reason to changeAssociate Deputy Attorney General David Margolis' conclusions as reflected in his Decision

Memorandum. But DOJ has refused to make those recovered emails available for public review

and has yet to answer longstanding questions from Congress about the missing emails. Please

note that CREW's prior request for expedition of its February 26, 2010 FOIA request related to

this matter was granted. Similarly, expedition is warranted here.

Moreover, as CREW explained it is FOIA request, CREW is a non-profit organization

1400 Eye Street, NW., Suite 450, Washington, D.C. 20005 I 202.408.5565 phone I 202.588.5020 fax I www.citizensforeth



Matthew Miller

November 23,2010

Page Two

engaged primarily in disseminating information it gathers from a variety of sources, including the

FOrA, and seeks information requested in this FOrA request for the express purpose ofdisseminating it to the public. CREW's website, www.citizensforethics.org, contains links to

thousands of pages of documents CREW acquired from multiple FOrA requests, as well as

documents related to CREW's FOrA litigation, other complaints, and CREW reports based in

part on documents acquired through the ForA. Similarly, CREW posts documents received

through the FOrA on www.scribd.org, and its documents have received 468,197 visits since

April 14,2010.

For the foregoing reasons as well as those set forth in CREW's FOrA request of

November 18,2010, CREW requests that you grant its request for expedition.

Pursuant to 28 C.F.R. § 16.5(d)(3), I hereby certify that the basis for CREW's request for

expedition is true and correct to the best ofmy knowledge and belief.

Sincerely,

Anne L. Weismann

Chief Counsel

Enclosure

request for expedition: crew: doj-office of public affairs: regarding john yoo emails: 11/23/10

Documents