CREW citizens for responsibility and ethics in washington February 26, 2010 By fax (202-514-5331) and first-class mail Matthew Miller Director Office of Public Affairs USS. Department of Justice Room 1128 930 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 Re: FOIA Request for Expedition Dear Mr. Miller: Pursuant to U.S. Department of Justice (“DOJ”) Freedom of Information 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 record keeping guidance issued to staff of the Office of Legal Counsel (“OLC”) from January 2000 to the present concerning how electronic records, including email, are to be treated for purposes of federal record keeping laws. CREW also seeks records indicating, reflecting, or commenting on any problems with the storage or retention of emails of OLC staff, including but not limited to former Assistant Attomeys General John Yoo and Patrick Philbin, from January 2000 to July 2009. 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 of Messrs. Yoo and Philbin were destroyed in light of their critical importance in explaining the roles the two played in the crafting of the highly controversial ~ and now discredited — OLC memoranda authorizing torture of detainees. Just today, the Senate Judiciary Committee held a hearing during which Acting Deputy Attorney General Gary Grindler was asked about the destruction of these email. On February 24, 2010, the National Archives and Records Administration requested that DOJ provide a response within 30 days explaining this, matter and submit a report if DOJ determines an unauthorized destruction has occurred. The recent revelation that the emails of Mr. Yoo have been destroyed as well as those of Mr. Philbin. ' CREW’s FOIA request is enclosed as Exhibit 1. 1400 Eye Steet, NW, Suite 450, Washington, D.C. 20005 | 202.408.5565 phone | 202.588.5020 fax | _wwwitizensfoethics.org <—Matthew Miller Page Two February 26, 2010 for a critical period raise substantial concerns about the government’ integrity that affect public confidence in the Department of Justice, given its apparent decision not to investigate the destruction of these email even though they constitute critical evidence relevant to its investigation of the actions of John Yoo and Patrick Philbin in drafting the torture memoranda. See, e.g., Editorial, The Torture Lawyers, The New York Times, February 25, 2010 (attached as Exhibit 2). In light of this media interest and the possible questions about the government's integrity affecting public confidence, CREW satisfies the DOJ requirements for expedition. See 28 CER. § 16.5(@)(1)(iv). Moreover, as CREW explained in its FOIA request, CREW is a non-profit corporation ‘engaged primarily in disseminating information 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. CREW’s website, www.citizensforethics.org, contains links to thousands of pages of documents CREW acquired from multiple FOIA requests, as well as documents related to CREW’s FOIA litigation and other complaints. Similarly, a website founded by CREW, www.governmentdoes.org, also includes the many thousands of pages of documents CREW acquired from its FOIA requests, For the foregoing reasons, as well as those set forth in CREW’s FOIA request of February 26, 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 of my knowledge and belief. Sincerely e L. Weismann Chief Counsel EnclosuresEXHIBIT 1CREW citizens for responsibility and ethics in washington February 26, 2010 By Fax (202) 514-0563 and first-class mail Bette Farris Supervisory Paralegal Office of Legal Counsel Department of Justice Room 5515 950 Pennsylvania Avenue, N.W. Washington, D.C. 20530-0001 Re: Freedom of Information Act Request Dear Ms. Farris: 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 of Information Act (“FOIA”), 5 U.S.C. §§ 552, ef seq,, and U.S. Department of Justice (“DOJ”) regulations, 28 C.F.R. Part 16. Specifically, CREW seeks a copy of all record keeping guidance issued to staff of the Office of Legal Counsel (“OLC”) from January 2000 to the present concerning how electronic records, including email, are to be treated for purposes of federal record keeping laws. In addition, CREW seeks a copy of all records indicating, reflecting, or commenting on any problems with the storage or retention of emails of OLC stalf, including but not limited to former Assistant Attorneys General John Yoo and Patrick Philbin, from January 2000 to July 2009. 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. Ifit 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 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 of Scientology v. Bell, 603 F.2d 945, 959 (D.C. Cir. 1979). Moreover, the Vaughn index must “describe each document or portion thereof withheld, and for each 1400 Eye Street, NW, Suite 450, Washington, 0.C. 20005 | 202.408.5565 phone | 202.588.5020 fax | _wwaxciizensforetics.o7, =Bette Farris Page Two February 26, 2010 withholding it must discuss the consequences of supplying the sought-after information.” King v US. Dep't of Justice, 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'l Labor 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 is dispersed through the document. Mead Data Central v. U.S. Dep't of the Air Force, 455 F.2d 242, 261 (D.C. Cir. 1977). Claims of non-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 Requ In accordance with 5 U.S.C. § 552(a)(4)(A)(ii) and 28 CFR. § 16.11(k), CREW requests a waiver of fees associated with processing this request for records. ‘The subject of this request concems the operations of the federal government and expenditures, and the disclosures will likely contribute to a better understanding of relevant government procedures by CREW and the general public in a significant way. Moreover, the request is primarily and fundamentally for non-commercial purposes. 5 U.S.C. § 552(a)(4)(AMili). See, e.g., MeClellan Ecological v. Carlucei, 835 F.2d 1282, 1285 (9th Cir. 1987). Specifically, the requested records are likely to contribute to the public’s understanding of the destruction of the emails of John Yoo and Patrick Philbin related to their drafting of the OLC ‘memoranda on torture, as referenced in the July 29, 2009 OPR Report, “Investigation into the Office of Legal Counsel’s Memoranda Concerning Issues Relating to the Central Intelligence Agency's Use of “Enhanced Interrogation Techniques’ on Suspected Terrorists.” Disclosure of the governing record keeping policies for emails would inform the public about whether and to what extent the destruction of these email may have violated DOJ policy and federal laws. Disclosure of records documenting potential system problems with the storage and retention of OLC emails would also shed light on these issues. 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 gamered through this request is not in CREW’s financial interest. In addition, CREW will disseminate any documents it acquires from thisBette Farris Page Three February 26, 2010 request to the public through www,governmentdocs.org, an interactive website CREW founded that includes thousands of pages of public documents from a number of organizations in addition to CREW. CREW's website also contains links to thousands of pages of documents CREW acquired from multiple FOIA requests. See www.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 17 C.F.R. § 200,80(e)(10). In Nat’? Sec, Archive v. U.S. Dep't of Defense, 880 F.2d 1381, 1386 (D.C. Cir. 1989), the Court of Appeals for the District of Columbia Circuit found the National 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 Cong, Ree. $14298 (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.citizensforethies.org, that received $7,428 visits in January 2010. The website reports the latest developments and contains in-depth information about a variety of activities of government agencies and officials. In addition, www.governmentdocs.org, the website CREW maintains that includes documents acquired through FOIA requests, received 15,463 visits in January. Second, since May 2007 CREW has published an online newsletter, CREWCuts, that currently has 16,504 subscribers. CREICuls provides subscribers with regular updates regarding CREW’s activities and information the organization has received from government entities. A complete archive of past CREWCuts is available at http:/www.citizensforethics.org/newsletter, Third, CREW publishes a blog, Citizens blogging for 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 2,068 hits in January.Bette Farris Page Four February 26, 2010 Finally, CREW has published numerous reports to educate the public about government ethics and corruption, Examples include: The Revolving Door, a comprehensive look into the post-government activities of 24 former members of President Bush’s cabinet; 2009 Most Corrupt Members of Congress; 2008 Top Ten Bthics Scandals; 2008 Most Embarrassing Re- Elected Members of Congress; and Those Who Dared: 30 Officials Who Stood Up For Our Country. These and all other CREW’s reports are available at hutp://www.citizensforethies.org/seports 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)() and 28 CFR. § 16.5(d)(iv), CREW requests that DOJ expedite the processing of this request. As required by DOJ regulations, 28 C.P.R. § 16.5(d)(2), CREW is submitting its request for expedition to the director of Public Affairs. A copy of CREW’s request is enclosed. 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 the interactive website that CREW founded, www.governmentdocs.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 it receives through the FOIA. For example, CREW’s report, “Record Chaos: The Deplorable State of Electronic Record Keeping in the Federal Government,” was based in significant part on documents it requested under the FOIA from a variety of agencies, including DOJ ‘There is a particular urgency to inform the public about the circumstances underlying the destruction of the emails of former high-ranking OLC officials, including Messrs. Yoo and Philbin. Since the release of the OPR report that revealed the destruction of their emails, the Senate Judiciary Committee has inquired specifically into this matter at a hearing held on February 26, 2010, and the National Archives and Records Administration has requested within 30 days a response from DOJ explaining this matter, including a report if DOJ determines an unauthorized destruction occurred. The urgency of their inquiries is prompted by the critical importance of the destroyed email in understanding the roles Messrs. Yoo and Philbin played in the drafting of the highly controversial, and now discredited, torture memos. Immediate action is required to preserve any hope of recovering the destroyed emails. Under these circumstances, the public has a pressing need for the information contained in the documents CREW is requestingBette Farris Page Five February 26, 2010 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 of my 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 fee waiver is not granted in full, please contact our office immediately upon making such determination. Please send the requested records to Anne L. Weismann, Citizens for Responsibility and Ethics in Washington, 1400 Bye Street, N.W., Suite 450, Washington, D.C. 20005, Singgrely, Afine L. W Chief Counsel Enclosure cc: Matthew MillerEXHIBIT 2Editorial - The Torture Lawyers - NYTimes.com Page | of 2 The New York Times: ACADEMY AWARD® serene cus. NOMINEE February 25, 2010 EDITORIAL The Torture Lawyers Is this really the state of ethics in the American legal profession? Government lawyers who abused their offices to give the president license to get away with torture did nothing that merits a review by the bar? A five-year inquiry by the Justice Department's ethies watchdogs recommended a disciplinary review for the two lawyers who produced the infamous torture memos for former President George W. Bush, but they were overruled by a more senior Justice Department official. ‘The original investigation found that the lawyers, John Yoo and Jay Bybee, had committed “professional misconduct” in a series of memos starting in August 2002. First, they defined torture so narrowly as to make it almost impossible to accuse a jailer of torturing a prisoner, and they finally concluded that President Bush was free to ignore any law on the conduct of war. ‘The Justice Department's Office of Professional Responsibility said appropriate bar associations should be asked to look at the actions of Mr. Yoo, who teaches at the University of California, Berkeley, and Mr. Bybee, who was rewarded for his political loyalty with a lifetime appointment to the federal bench. It was a credible accounting, especially since some former officials, like Attorney General John Ashcroft, refused to cooperate and e-mails from Mr. Yoo were mysteriously missing, But the more senior official, David Margolis, decided that Mr. Yoo and Mr. Bybee only had shown “poor judgment” and should not be disciplined. Mr. Margolis did not dispute that Mr. Yoo and Mr. Bybee mangled legal reasoning and produced work that ultimately was repudiated by the Bush administration itself. He criticized the professional responsibility office's investigation on procedural grounds and excused Mr. Yoo and Mr. Bybee by noting that everyone was frightened after Sept. 11, 2001, and that they were in a hurry. htp:// www.nytimes.com/2010/02/25/opinion/2Sthurl .html?refopinion&epagewanted=print 2/26/2010Editorial - The Torture Lawyers - NYTimes.com Page 2 of 2 Americans were indeed frightened after Sept. 11, and the Bush administration was in a great rush to torture prisoners. Responsible lawyers would have responded with extra vigilance, especially if, like Mr. Yoo and Mr. Bybee, they worked in the Justice Department's Office of Legal Counsel. When that office renders an opinion, it has the force of law within the executive branch. Poor judgment is an absurdly dismissive way to describe giving the green light to policies that have badly soiled America's reputation and made it less safe. As the dealings outlined in the original report underscore, the lawyers did not offer what most people think of as “legal advice.” Mr. Yoo and Mr. Bybee were not acting as fair- minded analysts of the law but as facilitators of a scheme to evade it. The White House decision to brutalize detainees already had been made. Mr. Yoo and Mr. Bybee provided legal cover. We were glad that the leaders of the House and Senate Judiciary Committees, Representative John Conyers Jr. and Senator Patrick Leahy, committed to holding hearings after the release of the Justice Department documents. ‘The attorney general, Eric Holder Jr., should expand the investigation into “rogue” interrogators he initiated last year to include officials responsible for facilitating torture. While he is at it, Mr. Holder should assign someone to look into the disappearance of Mr. Yoo’s e-mails. ‘ion should decide whether its rules are adequate for deterring The American Bar Asso and punishing ethical failures by government lawyers. The quest for real accountability must continue. The alternative is to leave torture open as a policy option for future administrations, ‘Copyaht 2010 The Nave York Times Company BivacyPoicy | Terms ofSenice | Search | Covestons | RSS| EssLLook | Hele | oniactUs | WorkiorUs | Ste Me hitp:/;www.nytimes.com/2010/02/25/opinion/2Sthur!html?ref-opinion&pagewanted=print 2/26/2010