In my rather limited law practice these days, one of the things I am doing is helping the Energy & Environment Legal Institute in its cases against New York Attorney General Eric Schneiderman seeking disclosure of public records information as to his communications with other AGs and environmental activists relating to his supposed investigation of ExxonMobil. Today we got his response in one of the cases. The response contains a paragraph that will give you some insights into how this FOIA game works, and also why people like Hillary Clinton like to use private email accounts and servers.
In our case, the requesting entities were very alert to the private email game, and therefore they specifically requested that private email accounts be searched for requested documents. But the New York AG's office simply ignored that specific request, and said they were just not going to do it. Here is the response of the New York AG on that issue:
Although the Request had specified that it sought communications of Attorney General Schneiderman "using either his official or non-official email and text messaging accounts (e.g., Gmail, private cell phone as well as State-provided accounts)," the OAG does not search personal accounts of its employees in the ordinary course of fulfilling the nearly three thousand FOIL requests it expects to receive in 2016 . . . , unless the Records Access Officer has reason to believe that a personal account includes responsive records that are not also on the OAG's network. . . . Here, the Records Access Officer had no reason to believe that the Attorney General's personal email account was the exclusive custodian of any potentially responsive OAG records. All OAG employees, including the Attorney General, have been instructed to refrain from using personal accounts for OAG business. . . .
(This is from page 5-6 of the AG's Memorandum of Law in Opposition to Petitioner's Article 78 Proceeding. The document is publicly available from the court's website, but unfortunately you need an account and a password to get access. If you have such an account, the case number is 101181/2016.)
A couple of things there are of interest. First, they say that they don't search for private emails, even though specifically requested, unless they "ha[ve] reason to believe that a personal account includes responsive records . . . ." Well, did they take the trouble to ask? And the answer is, they completely fail to address that obvious question. What's your guess as to the answer?
And then there's that great line "All OAG employees, including the Attorney General, have been instructed to refrain from using personal accounts for OAG business . . . ." Great! Oh wait -- weren't all State Department employees, including the Secretary of State, instructed to refrain from using personal accounts for official business? Of course they were! But then, we know that at least if you rank high enough, even when caught red-handed you will not be punished for ignoring that instruction -- not even a slap on the wrist.
And just in case you don't recall from earlier this year, here is an article from the Daily Caller back in March on the systematic use by officials at EPA of private emails in their communications with environmental lobbyists. That scandal was broken largely through persistent FOIA requests from the same Energy & Environment Legal Institute (although I did not represent them in those matters.) Daily Caller quotes E&E Executive Director Craig Richardson as follows:
EPA has essentially outsourced it’s rule-making function to ‘green’ activists and rent-seeking lobbies hell-bent on destroying traditional energy sources in an effort to replace [them] with renewables, an industry that their wealthy benefactors are already making a killing at the taxpayer and ratepayer expense,” Richardson said.
How our government works. And the public is not to be allowed to find out about it. Lovely, isn't it?