[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
EXAMINING FOIA COMPLIANCE AT THE DEPARTMENT OF STATE
=======================================================================
HEARING
BEFORE THE
COMMITTEE ON OVERSIGHT
AND GOVERNMENT REFORM
HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 8, 2016
__________
Serial No. 114-162
__________
Printed for the use of the Committee on Oversight and Government Reform
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COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM
JASON CHAFFETZ, Utah, Chairman
JOHN L. MICA, Florida ELIJAH E. CUMMINGS, Maryland,
MICHAEL R. TURNER, Ohio Ranking Minority Member
JOHN J. DUNCAN, Jr., Tennessee CAROLYN B. MALONEY, New York
JIM JORDAN, Ohio ELEANOR HOLMES NORTON, District of
TIM WALBERG, Michigan Columbia
JUSTIN AMASH, Michigan WM. LACY CLAY, Missouri
PAUL A. GOSAR, Arizona STEPHEN F. LYNCH, Massachusetts
SCOTT DesJARLAIS, Tennessee JIM COOPER, Tennessee
TREY GOWDY, South Carolina GERALD E. CONNOLLY, Virginia
BLAKE FARENTHOLD, Texas MATT CARTWRIGHT, Pennsylvania
CYNTHIA M. LUMMIS, Wyoming TAMMY DUCKWORTH, Illinois
THOMAS MASSIE, Kentucky ROBIN L. KELLY, Illinois
MARK MEADOWS, North Carolina BRENDA L. LAWRENCE, Michigan
RON DeSANTIS, Florida TED LIEU, California
MICK MULVANEY, South Carolina BONNIE WATSON COLEMAN, New Jersey
KEN BUCK, Colorado STACEY E. PLASKETT, Virgin Islands
MARK WALKER, North Carolina MARK DeSAULNIER, California
ROD BLUM, Iowa BRENDAN F. BOYLE, Pennsylvania
JODY B. HICE, Georgia PETER WELCH, Vermont
STEVE RUSSELL, Oklahoma MICHELLE LUJAN GRISHAM, New Mexico
EARL L. ``BUDDY'' CARTER, Georgia
GLENN GROTHMAN, Wisconsin
WILL HURD, Texas
GARY J. PALMER, Alabama
Jennifer Hemingway, Staff Director
Andrew Dockham, General Counsel
Katy Rother, Senior Counsel
Sharon Casey, Deputy Chief Clerk
David Rapallo, Minority Staff Director
C O N T E N T S
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Page
Hearing held on September 8, 2016................................ 1
WITNESSES
Mr. Patrick F. Kennedy, Under Secretary for Management, U.S.
Department of State, Accompanied by Janice Jacobs, Transparency
Coordinator, U.S. Department of State, Karin Lang, Director,
Executive Secretariat, U.S. Department of State, and Mr.
Clarence N. Finney, Jr., Deputy Director for Correspondence,
Records, and Staffing Division, Executive Secretariat, U.S.
Department of State
Oral Statement............................................... 5
Written Statement............................................ 9
APPENDIX
Letter of November 12, 2014, from Mr. Kennedy submitted by Mr.
Lynch.......................................................... 80
Letter of October 21, 2015, from Mr. Kennedy submitted by Mr.
Lynch.......................................................... 82
Letter of November 6, 2015, from Mr. Kennedy submitted by Mr.
Lynch.......................................................... 83
Letter of January 19, 2016, to Mr. Kerry submitted by Mr.
Chaffetz....................................................... 87
Letter of November 24, 2015, from Ms. Frifield submitted by Mr.
Cummings....................................................... 90
Email of March 2, 2012, from H submitted by Ms. Maloney......... 94
EXAMINING FOIA COMPLIANCE AT THE DEPARTMENT OF STATE
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Thursday, September 8, 2016
House of Representatives,
Committee on Oversight and Government Reform,
Washington, D.C.
The committee met, pursuant to call, at 10:03 a.m., in Room
2154, Rayburn House Office Building, Hon. Jason Chaffetz
[chairman of the committee] presiding.
Present: Representatives Chaffetz, Mica, Duncan, Jordan,
Walberg, Amash, Gosar, Gowdy, Farenthold, Massie, Meadows,
DeSantis, Buck, Walker, Blum, Hice, Russell, Carter, Grothman,
Hurd, Palmer, Cummings, Maloney, Norton, Clay, Lynch, Cooper,
Cartwright, Lawrence, Lieu, Watson Coleman, Plaskett,
DeSaulnier, and Lujan Grisham.
Chairman Chaffetz. The Committee on Oversight and
Government Reform will come to order. And without objection,
the chair is authorized to declare a recess at any time.
We have a very important hearing today. As you know, the
committee has jurisdiction. We have jurisdiction on Federal
records, jurisdiction on the Freedom of Information Act, have
jurisdiction on the National Archives. It is a very important
part of our process. We are unique in our nation. We are open.
We are transparent. We do provide access to the American people
for what they paid for.
As you also know, Secretary Clinton served as the Secretary
of State from early 2009 through early 2013, but here is the
problem. Since 2009 there have been thousands of congressional
inquiries, thousands of FOIA requests, subpoenas, media
inquiries, and if any of those required Secretary Clinton's
Federal records, i.e., her emails, there was not a way for
those requests to be fulfilled.
This has created a mess and a disaster for the people in
the front line who have to deal with this. And we are thankful
for the four people that serve the United States. They serve in
the State Department. We appreciate them being on this panel
and having to deal with this mess that Hillary Clinton
conveniently created for the State Department on her way out
the door.
Remember, when she left in early 2013, it wasn't until
December 5 of 2014, closing in on 2 years later, that Secretary
Clinton returned 55,000 pages in hard copy format to the State
Department. Roughly 6 months later, this prompted Ambassador
Kennedy to ask for the electronic copies of these records.
But later, the FBI swooped in because they had been given
by the inspector general--the inspector general had highlighted
that there was classified information residing in a non-
classified situation with people who do not have the proper
security clearance. The inspector general found this. They did
what they were supposed to do. They contacted the FBI. The FBI
swoops in and they find thousands and thousands of additional
emails, many of which were classified. Most were not. Most were
unclassified, but they nevertheless found Federal records, not
just her emails, Federal records.
And it is important to note the severity of this because
the classification ranges everything from confidential to
secret, top secret. You even have special access programs that
require a code word access. This information was found in
there. I am sure there will be discussion about how few they
were, but there is a reason in this nation why we go to such
great lengths to classify this information and make sure that
the adversaries do not have access to it.
To address this nightmare, the State Department had
allocated roughly 2008 $12.6 million to fulfill the FOIA
requests. That has now soared to $33 million that the State
Department is having to use. Unfortunately, they are using
millions of dollars in lawsuits. Now, keep in mind what the
State Department is doing. They are using this taxpayer money
to make sure that this information ever gets out to the public.
The public paid for this information, they have access to this
information, and the Federal Government is suing to make sure
that they don't get that. Now, fortunately, the State
Department keeps losing these lawsuits. That is why we start to
get--and have this revealed.
Congressional inquiries sometimes are feckless because
State and others--and it is not just the State Department; I
want to be fair--but State Department is one of the worst from
my vantage point in terms of providing documentation that we
ask for in congressional inquiries. It is very frustrating.
And now, we are starting to realize why this information is
so incomplete, because even the State Department themselves
didn't have Hillary Clinton's Federal records during the 4
years that she served, and here we are in 2016 still trying to
untangle this mess, and these people have to deal with this.
You have people like the Judicial Watch and the Associated
Press and others. You shouldn't have to go to court and sue in
order to get access to information that should be readily
available. Under the Freedom of Information Act, you are
supposed to have a response within 20 days, but look at the
case of the Associated Press. The Associated Press--I believe
it was 2010--just asked for a simple thing. Show us Hillary
Clinton's calendars, her calendars. They wait years for a
response. They get a trickling of a little bit. They finally go
to court, and even with the court, State Department is saying
we can't produce these. Are you kidding me? Her calendars? I
would like to see Hillary Clinton's calendars. You are telling
me you can't produce those? What is going on?
So we have a duty, we have an obligation. Hillary Clinton
created this mess. Hillary Clinton set up this convenient
arrangement with herself. Hillary Clinton picked this timeline.
I know people are going to say, oh, it is the political season.
I just got this information from the FBI. We are days,
legislative days after this has happened. I flew in to go see
and read the documents downstairs, and I tell you, we are going
to move in a rapid pace no matter the political calendar, and
we would be derelict in our duty if we didn't do it. That is
what we do in the Oversight Committee. It was founded in 1814.
That is what we do. We oversee what happens in the executive
branch.
I do appreciate the four people that are here today. They
have served this country and served honorably. We appreciate
their service to their country. You have been left a mess. We
are trying to untangle it. All we ask that you do is share with
us the truth and perspective as you see it, and that is what we
are seeking. No matter what it is, we just want to get to the
truth.
Chairman Chaffetz. So let's recognize the ranking member,
Mr. Cummings, for his opening statement.
Mr. Cummings. Thank you very much, Mr. Chairman.
I want to make sure, Mr. Kennedy and witnesses, that as we
address this mess and as we address this disaster, as the
chairman has described it, and as we enter this hearing
entitled ``Examining FOIA Compliance at the Department of
State'' that we make sure that we look at the entire problem. I
want to know how far back it goes. And we are about the
integrity of this committee and truly addressing FOIA
compliance. We will take a look and see what happened even
before Hillary Clinton and what happened afterwards.
Integrity of the committee, integrity of what we are
supposed to be about, integrity of using the taxpayers' dollars
wisely so that we might be effective and efficient in what we
do.
I wish I could say that I support today's hearing, but I
think everyone in this room knows what is really going on here.
This hearing is not about an effort to improve FOIA or Federal
record-keeping. This is an attack, an attack on Hillary
Clinton's candidacy for President of the United States of
America and just the latest in a series of attacks.
The Republicans started with their discredited Benghazi
investigation, accusing Secretary Clinton of all kinds of
unsubstantiated conspiracies. When they turned up nothing, they
just made up new accusations against her. Then, when the FBI
director, Mr. Comey, sat in that very seat in that witness
chair and debunked those allegations, the Republicans responded
by attacking the FBI director and then making up more
accusations against Secretary Clinton.
When Mr. Comey came before us, I told him that
unfortunately, while at one time he was the darling of the
Republican Party, now he was being placed on trial. The
chairman sent a perjury referral to the Justice Department that
is ludicrous on its face. Then, he sent another referral
accusing Secretary Clinton of obstructing justice. These
actions had their desired effect. They kept repeating the
headline that Hillary Clinton is under investigation.
Over the next 5 days, this committee will hold three
hearings focused directly on Hillary Clinton, one today, one
Monday, and one Tuesday. This frantic pre-election fervor is an
egregious abuse of taxpayer dollars for political purposes.
Today, this hearing is supposed to be, supposed to be focused
on a report issued by the State Department inspector general
that highlighted long-standing challenges, long-standing
challenges with FOIA across five different Secretaries of
State. Yet the Republicans splash only one picture across the
advisory they sent to the press, a picture of Secretary
Clinton.
The IG identified FOIA challenges under Secretaries
Albright, Powell, Rice, Clinton, and Kerry. The Republican memo
for today focused only on one. You guessed it, Secretary
Clinton.
Last night, we obtained an email in which Secretary Powell
back in 2009 provided advice to Secretary Clinton on how to
skirt security rules and bypass requirements to preserve
Federal records. Although Secretary Clinton has made clear that
she did not rely on this advice, in this email Secretary Powell
appears to admit that he did this himself. He also says that he
disregarded security warnings and used his personal mobile
device inside the State Department's secure space.
Now, let me make it very clear. Secretary Powell is a man I
admire greatly, and I have tremendous respect for Secretary
Powell and his decades of service to our nation despite the
poor judgment shown in this email.
However, rather than responding like Republicans have done
by making a series of frivolous criminal referrals just to
generate headlines to help Donald Trump, our goal as a
committee should be to ensure that the historical record is
complete, not limited to Secretary Clinton but the other
Secretaries: Albright, Powell, Kerry, Rice.
Secretary Powell used his personal email account and sent
emails from nongovernmental servers at AOL and did not preserve
these records, yet the Republican memo focused only on the
period between 2009 and 2013 when Hillary Clinton was
Secretary. This memo says the Department ``lost an untold
number of Federal records due to inappropriate record-keeping
practices by Secretary Hillary Clinton and her senior staff.''
Yet Secretary Clinton produced some 55,000 pages of emails
while Secretary Powell has produced none.
If we truly are concerned with preserving the entire
historical record, why hasn't the committee sent a letter
asking AOL to see if any of Secretary Powell's emails are
recoverable? The IG also reported that Secretary Powell sent
classified information from his AOL account, yet the committee
has never asked AOL to scan its systems, sequester national
security information, or identify employees who may have had
access to that information.
On this final issue, classification, I do believe our
committee could play a constructive, a very constructive role,
and I want you to shed light on this, Mr. Kennedy, but only if
we do it in a bipartisan way, this whole idea of
classification.
As part of our review so far, we have seen all kinds of
ridiculous outcomes. We have seen agencies disagree on
classification decisions. We have seen one agency say a
document is classified and another agency say a document is not
classified. We have seen unclassified documents suddenly become
retroactively classified. We have seen documents with
classification markings that were completely wrong. And we have
seen documents that are explicitly marked unclassified, become
classified after the fact.
I do not know how anyone can decipher this broken system,
and there is no independent arbiter within the executive branch
to handle these kinds of issues. This is exactly the type of
cross-agency issue that our committee was intended to address,
and I hope we can do so together in a bipartisan way or we are
going to find ourselves in these predicaments again and again
and again where one agency says it is classified, another one
says it is not, retroactive today, wasn't before. In some kind
of way we need to address that.
Mr. Kennedy, you have been around long enough that
hopefully you and the others here can shed some light as to how
we as a government oversight committee--after all, we oversee
State and intelligence and others--trying to figure out how we
can make sure that we avoid those clashes in the future. With
that, Mr. Chairman, I thank you and I yield back.
Chairman Chaffetz. I thank the gentleman.
We will hold the record open for 5 legislative days for any
members who would like to submit a written statement.
I will now recognize our witnesses. We are pleased to
welcome the Honorable Patrick F. Kennedy, Under Secretary for
Management at the United States Department of State. It is
proper to address him, I believe, as Ambassador, and my
apologies that your nameplate doesn't say that, but it should.
The Honorable Janice Jacobs is the transparency coordinator
at the United States Department of State. Ambassador, we thank
you for being here as well.
Ms. Karin Lang is the director of the Executive Secretariat
at the United States Department of State.
And Mr. Clarence Finney, Jr., deputy director for
Correspondence, Records, and Staffing Division of the Executive
Secretariat at the United States Department Of State. We
welcome you here as well and thank you. I believe you have been
in this role since 2006, correct?
[Nonverbal response.]
Chairman Chaffetz. We welcome you all and thank you for
being here. Pursuant to committee rules, all witnesses are to
be sworn before they testify, so if you will please rise and
raise your right hands. Thank you.
[Witnesses sworn.]
Chairman Chaffetz. Thank you. Let the record reflect that
all witnesses answered in the affirmative.
It is my understanding that you are all representatives
from the Department of State, and that rather than giving
individual statements that Ambassador Kennedy will give one
statement.
We are very generous with our time here, Ambassador, so
please feel free. The time is yours.
WITNESS STATEMENT
STATEMENT OF PATRICK F. KENNEDY
Mr. Kennedy. Thank you very much. Chairman Chaffetz,
Ranking Member Cummings, committee members, good morning. Thank
you for your invitation and your interest in FOIA. I appreciate
the opportunity to discuss the State Department's ongoing
efforts to improve our FOIA process.
I am joined today by my colleagues, Ambassador Janice
Jacobs, Director Karin Lang, and Deputy Director Clarence
Finney. Ambassador Jacobs returned to the State Department in
2015 to serve as the Secretary's transparency coordinator.
Karin Lang is the director of the Executive Secretariat staff,
and among many responsibilities, she is responsible for
coordinating the Executive Secretariat's response to FOIA
requests. And Clarence Finney is one of Ms. Lang's deputies
particularly responsible for FOIA matters.
The State Department is committed to openness and to
encouraging public interest in U.S. foreign policy. Two
important efforts underscore our commitment to openness: first,
our efforts to preserve a complete record of U.S. foreign
policy under the Federal Records Act; and second, our efforts
to ensure that the American public can gain access to that
record using the Freedom of Information Act.
It is clear to the committee, to us, and to anyone reading
the news that the State Department struggles with the volume of
FOIA materia. Since fiscal year 2008, our new FOIA requests
have risen 300 percent from 6,000 to over 24,000 requests per
year. We face a FOIA backlog approximately of 30,000 requests,
17,000 direct requests to the State Department and about 13,000
referrals from other agencies to the State Department that need
our response or contribution as well. I want to make clear that
this backlog is not acceptable and we are working to reduce it.
The rate of incoming cases is increasing, and many of these
cases are increasingly complex. It is our experience that
requesters come first to the State Department to request
information on any and all national security issues. These
requests are often a mixture of complex subject matters,
including terrorism, arms conflict, foreign government
relations, security, and diplomacy. These complex requests
require multiple searches throughout the State Department and
throughout often any of our 275 embassies, missions, and
consulates around the globe, often involving the review of
highly classified or highly sensitive material, as well as in-
depth coordination with other Federal agencies.
The most common complaint we receive from the public is
delays in receiving timely responses. Our goal is to do
everything we can to complete each request as quickly as
possible with as much responsive information as we can, and our
FOIA staff works diligently to make this happen.
To address these challenges, the Department has undertaken
a number of steps recently to improve records management,
including our response to FOIA requests. We are working closely
with the National Archives and Records Administration.
Secretary Kerry has focused attention on FOIA and asked the
inspector general to review these issues. And we have directed
more resources towards FOIA processing.
Working with NARA, we have ensured that we are capturing
records appropriately. In 2014, the State Department adopted
the NARA-approved approach to preserving emails, which captures
all senior emails. And we started that in 2015. This program
has been expanded to over 688 senior State Department
officials, including Secretary Kerry, and we will deploy a tool
to search these captured materials by the end of this calendar
year.
The increased use of email, however, strains our decades-
old records management systems, but we are on schedule, with
the additional resources we have deployed and through the
assistance of all the work Ambassador Jacobs has done, to meet
NARA's December 2016 deadline to be able to manage our email
records electronically.
Efforts by Secretary Kerry: Earlier this year, the
Secretary sent a department-wide notice reminding employees
about their FOIA responsibilities and the need for
transparency. We are training in enhanced ways our employees on
records preservation.
In order to focus a dedicated, high-level review on these
issues, last September the Secretary appointed Ambassador
Janice Jacobs, as I have mentioned, as our transparency
coordinator. She is focused solely on records management
improvements, including FOIA processing, by moving from a 20th-
century paper-based system to a modern electronic system.
Ambassador Jacobs can, in response to any of your questions,
describe her efforts to identify procedural, bureaucratic, and
technological solutions.
The Inspector General's Review: Last year, Secretary Kerry
asked the State Department's inspector general to explore those
issues. The State Department IG has issued four reports with
recommendations for improved records management, including
FOIA, and all of the OIG's recommendations are resolved and we
have implemented the majority of them. The others are still in
process because of time and resource constraints.
In January 2016 the OIG found weaknesses in the FOIA
processing by the Executive Secretariat, which the Executive
Secretariat has acknowledged. Improvements have been made so
far, including establishing written procedures for FOIA
searches, including emails; increased training; better
oversight by senior staff; and the establishment of metrics.
The inspector general's May 2016 report concerned email
practices of five Secretaries of State and shortcomings and how
emails were preserved in the past. It is clear that the
Department should have done a better job in preserving emails
of Secretaries of State and their senior staff going back
several administrations.
The Department is much better situated today than during
the historical periods reviewed by the OIG. By early 2015 we
had already taken a number of important steps. For instance, as
noted, NARA and IG both agree the past preservation problems of
Secretary Clinton and her immediate staff were mitigated by the
production of emails to the Department. We then worked
diligently from May 2015 to February 2016 to release more than
52,000 pages of former Secretary Clinton's emails. These emails
are now a part of the Department's permanent records and are
available on our FOIA website for the public to see.
We recently reviewed--received additional Clinton emails
from the Federal Bureau of Investigation, which we have begun
processing. And as noted, State is automatically archiving
Secretary Kerry's emails through the NARA-approved Capstone
program, along with 687 other senior officials.
Increased Resources for the FOIA Office: The Department has
reallocated and reprogrammed from $18 million in 2014 to $26.2
million in 2015 and $32.5 million this year. Over the past
year, the FOIA office has added 25 additional full-time
positions and converted another 25 positions from part-time to
full-time. This comes at a time when the Department's
operation--operational funding has increased 25 percent in
constant dollar terms over the last 5 years.
While we have had a dedicated FOIA requester service team
to answer questions about specific status requests, a new FOIA
public liaison officer joined the State Department in May to
enhance our abilities to be responsive to the American public.
Have these steps made a difference? Yes. We are beginning
to see results. In fiscal year 2014, we achieved a 23 percent
reduction in our appeals backlogged by streamlining our case
processing. In fiscal year 2015, the Department closed 9 out of
10 of its oldest FOIA requests. Later this year, we plan to
start posting nearly all of the documents released through
FOIA, no matter who the requester was, on our public website.
This will result in more material on broader ranges of topics,
potentially reducing the need for anyone to file a new request
for information that has in fact already been reviewed.
The Department is committed to finding more ways to
streamline the FOIA process and to reduce our backlog. We look
forward to exploring this issue with you today.
Mr. Chairman, that concludes my statement. I have a written
statement that I would ask to be included in the record.
Chairman Chaffetz. Absolutely.
[Prepared statement of Mr. Kennedy follows:]
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]
Mr. Kennedy. And I and my colleagues are open to your and
the committee's questions. Thank you, sir.
Chairman Chaffetz. Thank you. I now recognize myself.
Let me address the Secretary Powell issue. There are some
important differences. First of all, the inspector general, who
we rely on heavily, was able to go back and speak with the
former Secretaries of State except Hillary Clinton, who refused
to be engaged with the Inspector General.
In Secretary Clinton's case, this is the only case that I
am aware of where there has been an accusation of a destruction
of documents that were under subpoena.
Mr. Comey, the FBI director, came and testified before this
committee that they didn't look at any of the comments that
Secretary Clinton gave under oath. And I would also point back
to the January letter of this year where we asked the State
Department to look back 15 years, not just picking on one, but
15 years, which is a long--I think exceptionally long time, but
looking back. And certainly emails have changed.
And finally, I would just suggest that I think there are
legitimate concerns about retroactive classifications, over-
redactions, those types of things. And I am pleased to report
to the committee, because I think Mr. Cummings has some
legitimate concerns, that we are going to get a chance to
question those people on Monday. That is why we are doing the
hearing.
It is an embarrassment that the unclassified, unclassified
documents that are residing in the skiff, unclassified, are
only able to be reviewed by members of this committee, the
Appropriations, and Judicial Committee. If you reside in
another committee and are a Member of Congress, you are
prohibited by this administration from looking at unclassified
documents. I don't know how to explain that, and I think it is
absolutely wrong.
Mr. Finney, you are on the front lines. I know the
management team at the State Department didn't want you to be
here because we had to issue a subpoena to be here, and I don't
take that as you in your personal capacity making that
decision. But nevertheless, we are glad that you are here.
You have been in this position since 2006. You didn't ask
for this. I am very sympathetic to the--you haven't testified
before Congress. All I ask you to do is just be truthful. Tell
us the way you saw it, what happened, and we will do everything
we can to make sure that you get your story and your version of
what happened out there.
When did you first know that there was a problem? Just go
ahead and move this microphone up close and--there you go.
Mr. Finney. First of all, sir, I want to thank you for
giving me the opportunity to come forward. I have always wanted
to speak the truth. This particular situation and the comfort
zone of this area is different ----
Chairman Chaffetz. Sure. Sure. So go ahead. When did you
first know there was a problem?
Mr. Finney. I noticed a problem as far with records?
Chairman Chaffetz. Yes, with Secretary Clinton, yes, and
her records.
Mr. Finney. The first time I noticed a problem when you
look at that is basically when we noted that we had received
some documents. There was initially a letter that went out, and
once we had started receiving documents from Secretary Clinton,
that's when we realized ----
Chairman Chaffetz. When was that?
Mr. Finney. I couldn't tell you the specific date.
Chairman Chaffetz. Yes, I mean, I don't expect to get the
exact day of the week, but roughly when was that?
Mr. Finney. I couldn't tell you the exact time. I just know
that when we had actually started receiving the actual
documents ----
Chairman Chaffetz. Was that after she had left?
Mr. Finney. Yes.
Chairman Chaffetz. Did you raise any concerns prior to
that, any questions about did she have a .gov account? Ms. Lang
evidently said in a deposition that you did. You raised
concerns.
Mr. Finney. Yes, sir. The concern was--and basically was--
when she came on board, you know, they asked the question will
she have a State.gov account? And I was told she would not. And
also what--that was something that was not uncommon because the
Secretary prior to her did not have a State.gov account and
also the Secretary prior to that, previous Secretary, did not
have a State.gov account.
Chairman Chaffetz. So the fact that you weren't getting
records from Hillary Clinton, did you ever raise that question,
that concern? Were you told to--what did they tell you to say
or not say about that?
Mr. Finney. No one told me anything to say or not say.
Again because she did not have a State.gov account, that was
something that was not abnormal because previous Secretaries
did not have State.gov accounts. The records that we were
receiving were placed into a repository, which is the
Secretariat Tracking and Retrieval System.
Chairman Chaffetz. But you got the Secretary Clinton dump
of 55,000 pages almost 2 years after she left, correct?
Mr. Finney. Say that--not knowing the exact time frame,
sir, I would just say, yes, we did receive them.
Chairman Chaffetz. Okay. I believe that was December 5 of
2014 when Mrs. Clinton--Secretary Clinton returned 55,000 pages
of emails.
Has the State Department--after December 5, 2014, has the
Department received any additional Hillary Clinton work emails
that were Federal records?
Mr. Finney. After the 55,000, that's what you're saying
specifically?
Chairman Chaffetz. Yes. Yes.
Mr. Finney. Recently, my office was involved in some
records they had just recently received, but in that particular
case, the only purpose that I was involved with was really just
looking at the records, seeing if they were personal or work-
related, and that was the reason why we got involved in that
process because the Department was receiving so many records
and the staffing was lacking so ----
Chairman Chaffetz. So, Ms. Lang, how many records did the
State Department receive after December 5, 2014?
Ms. Lang. I'm sorry. Can you be more specific? Are you
talking about from Secretary Clinton, from other former
employees?
Chairman Chaffetz. No, I am talking specifically about
Hillary Clinton work emails that were Federal records. How many
did you get after December 5?
Ms. Lang. The Federal Bureau of Investigation has
transferred a number of documents to the State Department,
which are still ----
Chairman Chaffetz. And what is that number? Do you know the
number?
Ms. Lang. Those are still undergoing a records review.
Chairman Chaffetz. Was it 17,448?
Ms. Lang. My office in the Executive Secretariat staff is
not leading that effort. I would ----
Chairman Chaffetz. So who is? Who knows this number?
Ambassador Kennedy?
Mr. Kennedy. Mr. Chairman, to the--we received a number of
disks from the FBI. We are in the process of inputting them
into our classified analysis system and counting them. And we
know of 14,900-odd documents, and the FBI has mentioned that
there could be tens of thousands of others in the string of
disks that we're processing now.
Chairman Chaffetz. And all of those came after December 5,
2014?
Mr. Kennedy. All of those, Mr. Chairman, were received
within the last month.
Chairman Chaffetz. Ambassador Kennedy, on May 22, 2015, you
asked, as the representative of the State Department, you asked
Secretary Clinton's attorney David Kendall for an electronic
copy of the 55,000 pages of emails. When did Secretary Clinton
provide the electronic copy to you?
Mr. Kennedy. Intervening in that thing, Mr. Chairman, the
FBI then took possession of all the electronic material that
Mr. Kendall had to the best of my knowledge.
Chairman Chaffetz. So did Secretary Clinton fulfill your
request to return the Federal records via electronic format?
Mr. Kennedy. The--Secretary Clinton's attorney, to the best
of my knowledge, provided that electronic material to the FBI.
Chairman Chaffetz. Or it was seized, one of the two. But I
am asking, it is kind of embarrassing that you had to ask them
to return it in electronic format. They went and printed all
this stuff out and gave you a hard copy. So did they ever give
you an electronic copy per your request?
Mr. Kennedy. To the best of my understanding, Mr. Chairman,
they do--they no longer have an electronic copy because it's in
the possession of the FBI.
Chairman Chaffetz. Because it was seized, right? Yes. And
you have since asked the FBI to turn over that?
Mr. Kennedy. We have asked the FBI to provide us with any
material that they have in their possession that may be Federal
records. As I mentioned a moment ago, Mr. Chairman, they have
provided us with a number of disks. We are loading that
system--those disks into our electronic system so then we--that
we can, first of all, disaggregate the time periods because
there are potentially records there prior to when she was
Secretary of State and after when she was Secretary of State;
secondly, because this is their recoveries from her servers,
there could be material in there which are Federal records and
material which are not Federal records so we have to
disaggregate those. And then we will process all the Federal
records, as we would do for any Federal record.
Chairman Chaffetz. So what number are you up to now? Do you
know?
Mr. Kennedy. As I said, we are--with--right now, we're up
to 14,900 documents that we are reviewing in both the two
stages of disaggregation first.
Chairman Chaffetz. Okay. Last question--I have exceeded my
time--but how do I get Hillary Clinton's calendars? Why does
that take so long? The original FOIA request came in 2010, and
you are arguing in court that you still can't get it done by
the end of the year. A judge has had to intervene to force you
to produce the calendars. How difficult is a calendar? Who is
in charge of that, by the way?
Mr. Kennedy. Mr. Chairman, when we have 30,000 FOIA
requests pending, we also have requirements under statute to do
what is called historical declassification in which we have
moved 26 million pages in the last 5 years ----
Chairman Chaffetz. Okay. Wait, wait. All I am trying to
talk about is Hillary Clinton's emails--or Hillary Clinton's
calendars. I would like to see--as chairman of the Oversight
Committee, I would like to see Hillary Clinton's calendars.
When can you provide that to me?
Mr. Kennedy. I will find the time and get back--I will find
when that is and get back to you. We have--we ----
Chairman Chaffetz. When will you get back to me by, by
Tuesday?
Mr. Kennedy. By Tuesday I can give you an idea when that
information might be available. If I might, sir, the AP request
was--for the calendars was actually part of a larger swath of
six FOIA requests that we're engaged in ----
Chairman Chaffetz. Okay. Okay.
Mr. Kennedy.--and if I might, one other thing, the point
that I think is relevant here and also addresses a point that
Ranking Member Cummings made is that the way the law is
constructed now, we are required to produce in response to a
FOIA request within 20 days. Given the volume of requests,
given the complexity of requests, given the classified
material, given our other statutory document requests for the
foreign relations series, historical declassification, there is
simply no way, Mr. Chairman, that I can deal with every
government agency and 275 posts within 20 days. That is simply
a physical impossibility.
That is why we are being sued, because I cannot literally
unless I turn the entire State Department off of every national
security mission it had and put it exclusively on FOIA. Now,
eventually, I would produce no new documents and I wouldn't
have a FOIA problem, but there is a true resource, time, and
other issues that have to be dealt with here, sir.
Chairman Chaffetz. To be clear, I would like to know how
many different versions of calendars Hillary Clinton has, and I
would like to know when you can provide to this committee all
calendars while she was serving as Secretary of State, and you
will get back to me in roughly a week. Is that fair?
Mr. Kennedy. I can get back to you with a report on how our
processing is coming, yes, sir, because what we were doing for
all these FOIA requests that we were treating ----
Chairman Chaffetz. My request is not a ----
Mr. Kennedy.--them all equally.
Chairman Chaffetz.--FOIA request, okay?
Mr. Kennedy. I ----
Chairman Chaffetz. I don't understand the FOIA part, but I
am just asking you ----
Mr. Kennedy. Mr.--I understand fully. I think this becomes
the 24th request that this committee has made of us in the last
year, and we've already produced ----
Chairman Chaffetz. That is not bad. We ----
Mr. Kennedy.--like 108--we've already provided this
committee with 185,000 pages of documents, and we will continue
to work with this committee to provide more.
Chairman Chaffetz. Thank you.
I now recognize the gentleman from Massachusetts, Mr.
Lynch.
Mr. Lynch. Thank you, Mr. Chairman. I do want to point out
that you went over a little bit on your time, and I just pray
for equal time. Thank you.
Mr. Kennedy--first of all, I want to thank the witnesses
for cooperating with the committee and helping us with our
work. I want to ask you about former Secretary Powell's emails
from his AOL account. And I want to point out that he served
between 2001 and 2005 as Secretary of State. And during his
tenure, there were 92 million data breaches at AOL.
So as Secretary Powell laid out in his own book here--and,
look, I have enormous respect and admiration for Secretary
Powell, and we remain as a country thankful for his courageous
service. But what I am trying to point out is the disparate
nature of this inquiry and how we are completely ignoring what
Secretary Rice did and Secretary Powell did, and instead, the
committee, with nine separate investigations and counting, has
targeted Hillary Clinton for her conduct under similar
circumstances.
So Secretary Powell on page 109 of his book--I might as
well plug it, It Worked for Me: In Life and Leadership: Colin
Powell--he says, ``To complement the official State Department
computer in my office, I installed a laptop computer on a
private line with an AOL account. My personal email account on
the laptop allowed me direct access to anyone online, so I
started shooting emails to my principal assistants, to
individual Ambassadors, and increasingly to my Foreign Minister
colleagues who, like me, were trying to bring their ministries
into the 186,000-mile-per-second world,'' referring to the
speed of light, I guess.
So a lot of communications, Ambassadors, Foreign Ministers,
arguably some classified information in there, but it is being
done on a completely private line. And the problem is that
unlike Secretary Clinton, Secretary Powell apparently did not
save or print out any emails.
I have a letter that you sent on November 12, 2014, I ask
unanimous consent to submit in the record.
Mr. Lynch. In your letter you ask Secretary Powell's
representative to provide all of Secretary Powell's records
that were not in the State Department record-keeping system, is
that correct?
Mr. Kennedy. Yes, sir.
Mr. Lynch. Okay. That would have included emails from his
AOL account that were work-related, right?
Mr. Kennedy. Yes, sir.
Mr. Lynch. Okay. Did Secretary Powell--well, let me ask
you. How many emails did he produce pursuant to your request?
Mr. Kennedy. Secretary Powell responded that he did not
have access any more to any of those records, sir.
Mr. Lynch. He didn't have access to them?
Mr. Kennedy. Yes, sir.
Mr. Lynch. So the number would be zero?
Mr. Kennedy. Yes, sir.
Mr. Lynch. Okay. I have another letter from you dated
October 21, 2015.
Mr. Lynch. In this letter you ask Secretary Powell's
representative to contact AOL to determine whether any of his
emails were still on their system, is that correct?
Mr. Kennedy. Yes, sir.
Mr. Lynch. Okay. To the best of your knowledge, did
Secretary Powell follow up to do this?
Mr. Kennedy. We never received a response to that request,
sir.
Mr. Lynch. Okay. I got another letter from you, Ambassador
Kennedy, dated November 6, 2015.
Mr. Lynch. And in this letter you inform the National
Archives that Secretary Powell never contacted AOL. Isn't that
right?
Mr. Kennedy. That is correct, sir.
Mr. Lynch. Okay. And again, Ambassador Kennedy, in July
2015 the Chief Records Officer for the National Archives asked
the State Department to contact AOL directly to determine
``whether it is still possible to retrieve the email records
that may still be present.'' Mr. Kennedy, did you ever contact
AOL?
Mr. Kennedy. Our lawyers advised, sir, that we are not a
party to ----
Mr. Lynch. Would that answer be a no? Did you contact AOL?
Mr. Kennedy. No, sir, we did not contact AOL.
Mr. Lynch. Okay. So you got the Chief Records Officer
asking you to contact AOL and you are saying no and your
attorneys are telling you no?
Mr. Kennedy. Telling--that we cannot make a request for
someone else's records from their provider. That request has to
be made by them, sir.
Mr. Lynch. Now, at some point the inspector general
informed you that Secretary Powell sent classified information
from his AOL account. Did you contact AOL then?
Mr. Kennedy. Again, it's the same answer, sir. We asked
that ----
Mr. Lynch. Let me ----
Mr. Kennedy. We asked that Secretary Powell contact AOL.
Mr. Lynch. So that answer would be no? I mean, but you have
a responsibility here, though--you admit that--by virtue of
your position?
Mr. Kennedy. We--I--yes. We contacted Secretary Powell ----
Mr. Lynch. Let me ask you. How many documents have you
given to this committee pursuant to investigation of Secretary
Clinton? What is the number there?
Mr. Kennedy. I know that it is somewhere probably in the
neighborhood of 50,000.
Mr. Lynch. Just 50,000?
Mr. Kennedy. So far.
Mr. Lynch. Given to this committee pursuant to an
investigation of Secretary Clinton? I thought we said earlier
there were about 168,000?
Mr. Kennedy. That--those were--that's not--those--we have
23 different requests from this committee ----
Mr. Lynch. Okay. Let me ask you. How many documents have
you provided to this committee pursuant to our investigation of
Colin Powell?
Mr. Kennedy. I believe that--we provided this committee the
three documents that the ----
Mr. Lynch. Great. Okay.
Mr. Kennedy.--FBI ----
Mr. Lynch. All right, 50,000 to 3. I think it shows you the
lopsided focus here.
To your knowledge, has anybody in State Department ever
picked up the phone and called AOL about these questions?
Mr. Kennedy. As I said in response to your earlier
question, sir, it is--we cannot get records of another
individual from a--their provider. They have to do it.
Mr. Lynch. I don't get this. This is ridiculous. This is
the National Archives asking you to contact AOL, but you didn't
do that. You ask Secretary Powell to contact AOL; he didn't do
that.
Now, you remember Secretary Powell served at a very
critical time. There was dubious information provided about
weapons of mass destruction in Iraq that led this country to
war. There were some very important decisions of enormous
consequence in this country at that time. And yet we are
totally silent on that inquiry.
Meanwhile, we have got nine investigations and counting on
Secretary Clinton. This is not how this is supposed to work.
This committee is supposed to be pursuing the truth, and I have
to say that your noncooperation here--even though it is at the
advice of counsel--is I think putting the country at a
particular point of vulnerability with respect to this
investigation.
I just think if we are going to do this and we are going to
put our Secretaries of State and our national leaders under the
microscope, it shouldn't be just, you know, half--it shouldn't
be just the Democrats under investigation. And that is what I
feel is going on right here. That is what I feel is going on
right here and that we have got tens of thousands of documents
produced as a result of an investigation of Secretary Clinton
and we have got zero--well, three, three, three documents that
you say you have provided with respect to Secretary Powell.
This is a sham. This is a sham. And I think the comments of
the Republican leader earlier indicated that this whole attempt
was to rip down Hillary Clinton and ruin her reputation. That
is what this is all about. And we are spending--look, I didn't
have to spend any taxpayer money to get Colin Powell's
admission that he used a private email, an unclassified system
to go on AOL that was hacked 92 million times during his
tenure. I didn't have to spend taxpayer money to find out what
he did. All I had to do was read his book in his own words.
And here we are, like I said, the ninth investigation. Now,
we are going to have another one, I expect, just to rip down
Hillary Clinton. And the only reason that we are doing it is
because she is running for President of the United States. That
is the plain and God-awful truth. That is what this is about,
and it is a shame. It is a shame.
I yield back the balance of my time.
Chairman Chaffetz. I thank the gentleman. I would highlight
that the letter that we sent in January of this year asked the
State Department for the current and past four Secretaries of
State, and I would ask unanimous consent to enter this record
dated January 19, 2015--I am sorry; I said this year--2015 into
the record.
Mr. Cummings. Mr. Chairman?
Mr. Lynch. Would that be '16 or '15?
Mr. Cummings. Does the chairman yield?
Chairman Chaffetz. Sure.
Mr. Cummings. I am wondering, what was the follow up on
that from these folks?
Chairman Chaffetz. It is incomplete. We don't have all the
information yet. We have some but we don't have ----
Mr. Cummings. On Colin Powell and Rice and ----
Chairman Chaffetz. We asked for the current and past four
Secretaries of State.
Mr. Cummings. I just want to know what we have got. I mean
----
Chairman Chaffetz. Well, let me get that from the staff. It
is a very appropriate question, and we will follow up, but it
is incomplete. We did ask for it not just of this current one,
not of the past one, but the past four so ----
Mr. Cummings. What about AOL? Can we ask them to get us
that information? I mean, the fervor of which we are going
after Hillary Clinton just seems like we have so much power
over the subpoena, it seems like we would want to get those
records. Is the chairman willing to go to AOL and try to get --
--
Chairman Chaffetz. First order of business, I ask unanimous
consent to enter this into the record. Without objection, so
ordered.
Chairman Chaffetz. And I will work with you to recover
those emails. I just want the Federal records. I just ----
Mr. Cummings. All of them.
Chairman Chaffetz. All ----
Mr. Cummings. All of them.
Chairman Chaffetz. All of them.
Mr. Cummings. Yes.
Chairman Chaffetz. If we have to use the power of the
committee to extract them and using subpoenas, I am willing to
do that.
Mr. Cummings. You hear that, Mr. Kennedy? We are going to
be working with you to get that done.
Mr. Kennedy. Yes, sir, Mr. Ranking Member. Could I add one
thing?
Chairman Chaffetz. Sure.
Mr. Kennedy. In consultations with representatives of the
four prior Secretaries of State, neither Secretary Albright nor
Secretary Rice used email, not--they have certified that to us.
Chairman Chaffetz. Yes. And that is my understanding. I
would also note that we rely heavily on the inspectors general,
and there is an inspector general report on this. And it is
very frustrating that the inspector general, impartial, in
there to do their job, the only person that refuses to interact
is Hillary Clinton. And that is just a fact. That is not
political. That is not--it is just a fact. She won't cooperate
with the inspector general. Even the State Department asks for
an electronic copy that was never provided.
There is but one investigation, one investigation that we
are conducting relating to what is happening here and these
Federal records and the potential destruction. We have other
inquiries of the State Department, Art in Embassies, embassy
security, things that we are doing in very much a bipartisan
way. But let's be careful on how we represent this. There is
one investigation.
Mr. Cummings. And that is of Hillary Clinton.
Chairman Chaffetz. If we were quiet until the FBI--and when
the FBI testified they didn't ask these questions, it begs the
question and we have a job to do and we are going to do it.
Mr. Cummings. Mr. Chairman ----
Chairman Chaffetz. Yes?
Mr. Cummings.--just--I know we want to move on ----
Chairman Chaffetz. Sure.
Mr. Cummings.--I am looking forward to working with you to
get all the records. I think the American people deserve that.
Chairman Chaffetz. I agree.
Mr. Cummings. And I don't want it to be a one-sided single
investigation of Hillary Clinton because I do think it goes
against the integrity of the committee.
Chairman Chaffetz. I hear you. I hear you.
Mr. Lynch. Mr. Chairman ----
Chairman Chaffetz. Mr. Lynch, yes?
Mr. Lynch.--just in terms of Ambassador Kennedy's last
comment that he reached out to Secretary Albright and Secretary
Rice. Secretary Rice served between 2005 and 2009. That was
well into the era of email. Have you checked, did she have a
personal account or any--I mean, they certify they didn't use
email. I find that very hard to believe.
Mr. Kennedy. I have spoken personally with Secretary Rice's
attorney, and he--that was his response, sir.
Mr. Lynch. Okay. Thank you.
Chairman Chaffetz. But I believe he was asking about
Secretary Albright, too.
Mr. Lynch. No, I was asking about Secretary Rice ----
Chairman Chaffetz. But both, yes.
Mr. Lynch.--2005 to 2009.
Chairman Chaffetz. Right. I will now recognize the
gentleman from Florida, Mr. Mica, for 5 minutes.
Mr. Mica. Well, again, for the record, Ambassador Kennedy,
you did say that they did not use--the two previous did not use
email, is that correct?
Mr. Kennedy. That is what their--we have--we have no
records ----
Mr. Mica. Okay. Well ----
Mr. Kennedy.--and we have talked to their representatives,
Mr. Mica, and--to confirm that.
Mr. Mica. Okay. So, again, the way we got into this, folks,
is we had a legitimate investigation into what took place in
Benghazi, and actually all of this was discovered sort of by
accident. But the fact is, Mr. Finney, how long have you been
in your position with State over Correspondence and Records?
Mr. Finney. Yes, sir. I came to the State Department.
Mr. Mica. I can't hear you. Real loud.
Chairman Chaffetz. Real close. There you go.
Mr. Finney. Yes, sir. I ----
Mr. Mica. What year?
Mr. Finney. Yes, sir. I came to the State Department in
July of 2006.
Mr. Mica. And the fact is in 2011 actually you were first
alerted to the use of the Secretary--here is a picture of the
Secretary. This is an article from a publication that said you
identified in 2011 or raised questions about how the Secretary
was operating. And I guess did you go to Lang and Lang made you
aware that she was using a private server? How did you find out
she was using a private server? You asked the question was she
using a government account, and the response came back no. Who
told you that?
Mr. Finney. That was told to me by individuals within S/ES-
IRM. A specific person, I couldn't remember.
Mr. Mica. But that goes back some time ago.
Now, you have an important responsibility. You are supposed
to keep the records and correspondence when they leave office,
and then you meet with folks. I mean, these are Members of
Congress. We all have the same obligation. We are custodians or
trustees of information, and some of that we cannot take with
us. You are not supposed to. In fact, I think it is against the
law. Isn't there a statute prohibiting taking that with you? Is
that ----
Mr. Finney. Yes.
Mr. Mica. I am not an attorney. Okay. Yes.
Mr. Finney. Yes, sir.
Mr. Mica. You met with Secretary Clinton's staff, did you
not? Did you meet with the Secretary or just her staff?
Mr. Finney. I met with her staff, sir.
Mr. Mica. And is it Abedin? Was she there and you told them
the obligations of what they had to turn over? Did you provide
them with that information?
Mr. Finney. First of all, exactly who was in that meeting,
I'll have to go back and ----
Mr. Mica. Okay. But Abedin, was she there?
Mr. Finney. Again ----
Mr. Mica. Yes. Okay. But you told them what the obligation
under the law and requirements of the State Department are
returning information?
Mr. Finney. Yes, sir, myself and the agency records
officer.
Mr. Mica. At the time did you mention anything about what
was on a private server of business that may have been
conducted in an official capacity?
Mr. Finney. Again, had no idea of ----
Mr. Mica. But you told them anything dealing with public
information that should be part of State Department documents
that you are the custodian for should be turned over to you,
correct?
Mr. Finney. We briefed them about what their
responsibilities are, sir, but ----
Mr. Mica. And then how long did it take--we heard--again,
this request within--as they left. I am told it took 2-1/2
years for the first so-called data dump. Is that correct,
Ambassador Kennedy?
Mr. Kennedy. Could you ----
Mr. Mica. How long before--when did you get the first dump
of information from the Clintons?
Mr. Kennedy. In December, sir.
Mr. Mica. Of last year?
Mr. Kennedy. December 14.
Mr. Mica. Fourteen? But was sometime after they left?
Mr. Kennedy. That is correct, sir.
Mr. Mica. Two years after they left. I had 2-1/2 years.
Ms. Lang. Sir, if I may?
Mr. Mica. No, I have a limited amount of time.
And were told at the time that that was all the
information? Did anyone tell you that that is all the
information they had in data and emails?
Mr. Kennedy. If we're talking about the delivery in
December ----
Mr. Mica. Yes.
Mr. Kennedy.--of 2014 of the 55,000 pages ----
Mr. Mica. Was there a transmittal document?
Mr. Kennedy. We--we ----
Mr. Mica. Did the transmittal document say this is all we
have or this is everything we found?
Mr. Kennedy. The--I believe something ----
Mr. Mica. I would like to see that transmittal document,
too.
But then, you tell me the FBI has been dumping additional
data to you all, records that they found that they did not
provide, right?
Mr. Kennedy. What the FBI essentially did to the best of my
understanding, sir, is use forensics to go ----
Mr. Mica. I know, but my point is that there is a
requirement under law to turn over the documents, and this
gentleman is responsible--he told them what to do ----
Mr. Kennedy. Right.
Mr. Mica.--and the terms of the law or the regulations, and
they were to comply. They did not.
Mr. Kennedy. They--according to their attorney ----
Mr. Mica. I want to see the documents.
Mr. Kennedy.--they provided ----
Mr. Mica. They obviously didn't, and we have gotten dumps
of additional information according to the testimony you gave
here today.
I want to know about the destruction of the--the hammering
of the BlackBerrys. Those were personal BlackBerrys that the
Secretary owned, is that what I am told? That was not Federal
property? Do you know? You are the custodian of the properties
or the data. Should they have turned the BlackBerrys over if
they were government BlackBerrys?
Mr. Finney. First of all, sir, I'm responsible for the
records of the individual who are ----
Mr. Mica. But they also have to give over property. You
don't know anything about the hammering of the ----
Mr. Finney. No, sir.
Mr. Mica.--BlackBerrys or whether they were personal. And I
also want to--I would like to know for the record, too, the
staff BlackBerrys that were turned over, if any of those were
not turned over, if they were destroyed, too, Mr. Chairman. I
request that information.
Mr. Mica. I yield back.
Chairman Chaffetz. I thank the gentleman.
I would now recognize the ranking member, Mr. Cummings.
Mr. Cummings. Thank you very much, Mr. Chairman.
Ambassador Kennedy, I am extremely concerned, as I have
said before, about this whole issue of classification. You got
people being accused of crimes and a lot of it and it has
become very significant what is classified and what is not
classified. I think you--would you agree with that? It is
significant?
Mr. Kennedy. Classification is always significant ----
Mr. Cummings. Yes.
Mr. Kennedy.--yes, sir, Mr. Ranking Member.
Mr. Cummings. So, Mr. Kennedy, I want to ask you about the
instances when experts from different agencies disagree about
whether information is classified. I have an email here dated
April 10, 2011. It was written by someone from the State
Department operations center based on a phone call with
Christopher Stevens, who was a special envoy to Libya. It is up
on the screen.
[Slide.]
Mr. Cummings. In the first line of the email it says ``SBU
per Special Envoy Stevens.'' What does SBU mean?
Mr. Kennedy. It means sensitive but unclassified, sir,
unclassified.
Mr. Cummings. So this email was explicitly marked
unclassified, is that right?
Mr. Kennedy. Yes, sir.
Mr. Cummings. And it appears that the Special Envoy Stevens
considered this information unclassified, is that correct?
Mr. Kennedy. That is correct, sir.
Mr. Cummings. So anyone reading this email would assume
that it was not classified, is that correct?
Mr. Kennedy. That is correct, sir.
Mr. Cummings. The problem is that at some point after the
email was sent, the intelligence community came in and claimed
that it was classified. On September 15, 2015, the State
Department sent a letter to Senator Corker explaining that the
intelligence community was wrong. The letter stated, ``Someone
within the intelligence community later, subsequent to his
posting, claimed should have been redacted as secret.'' The
letter from the State Department goes on to say that the
suggestion that the email should have been treated as
classified was ``surprising and, in the Department's judgment,
incorrect.'' Ambassador, why was it surprising that someone in
the intelligence community claimed that this email was
classified?
Mr. Kennedy. Mr. Chairman--sorry, Mr. Ranking Member, there
is a common discussion, a common thread that runs between the
State Department and the intelligence community constantly, and
it's called in our parlance parallel reporting. The State
Department officer, in the course of his or her responsibility,
goes out and talks to people, receives information.
The--there was no classification attached to that
information. In other words, the foreign government did not
provide us classified information, so it was an unclassified
discussion between a State Department officer and a private
citizen, a foreign government official, or whatsoever. We file
that report unclassified, sensitive but unclassified at times.
We do not classify it.
As this is going on, the intelligence community, through
either human intelligence or national technical means, in
effect steals the same information or something very close to
it, and they classify it. And they're classifying it because of
the sources and methods involved in maintaining it.
So we often see parallel reporting, State Department
unclassified reporting and intelligence community reporting
talking to the same matter. And therefore, you can have a
document that is very close. We looked at this very carefully
and we were surprised--which is why we used that term in that
letter--is because a number of the data points in this letter--
excuse me, in this email reporting Ambassador Stevens'
conversation are different, and therefore, these are separate.
And so we--but the problem, Mr. Ranking Member, of parallel
reporting is something we see all the time but is actually a
good thing because no government wants to operate on a single
thread.
Mr. Cummings. It is a bad thing, though, when the FBI could
possibly bring charges against somebody for disclosing
documents that they claim to be classified when, in fact, they
weren't classified.
Mr. Kennedy. That ----
Mr. Cummings. So, I mean, you could call it healthy all you
want.
Mr. Kennedy. But, Mr. Ranking Member, what I'm saying is we
did not classify it. This is our information in this email that
you are referencing, Mr. Ranking Member. This is also
information that parallels public press briefings from the NATO
press office in Brussels. And so this is unclassified. If the
FBI came to us and said we want to take this as a court action,
we would say this information is unclassified. We would so
certify it, as we have.
Mr. Cummings. So just the last question, unfortunately,
this gets even more confusing because when the FBI issued its
report to Congress, they told us that this email was classified
at the time that it was sent. Did the FBI ask the State
Department whether you consider this specific email to be
classified?
Mr. Kennedy. I can't give you a particular answer. I know
we provided information to the FBI, and this was one of the
documents we certified as unclassified.
Mr. Cummings. And, sir, do you have any suggestions as to
how we go forward with regard to trying to clear up these
kind--because there is no arbiter, is that right? Is there an
arbiter? In other words, if you got intelligence saying it is
classified, you have got State saying it is unclassified, I
mean, who arbitrates this? I mean, how do we come up to a
conclusion?
Mr. Kennedy. As I understand the rules, Mr. Ranking Member,
that each agency is the authority over the documents that it
produced. The State Department produced this document, the
State Department has said it's unclassified, and therefore de
facto, de jure, it is unclassified.
Mr. Cummings. Thank you very much, Mr. Chairman.
Mr. Kennedy. Mr. Ranking Member, could I ask, since you
made reference to the letter to Senator Corker, could I ask
that that letter be entered into the record?
Mr. Cummings. I certainly--I thank you. I meant to do that.
And I ask that the letter dated November 24, 2015, to Senator
Corker be made a part of the record.
Chairman Chaffetz. Without objection, so ordered.
Mr. Cummings. Thank you very much, Mr. Chairman.
Chairman Chaffetz. I thank the gentleman.
I now recognize the gentleman from Ohio, Mr. Jordan, for 5
minutes.
Mr. Jordan. Ambassador Kennedy, how long have you worked at
the State Department?
Mr. Kennedy. A little over 42 years, sir.
Mr. Jordan. And you are the guy at State Department
currently responsible for record retention, maintaining the
records, and complying with all appropriate records laws and
archive laws, is that right?
Mr. Kennedy. I am the senior agency official. I have a
number of people who assist me in that responsibility.
Mr. Jordan. You sent a letter to four former Secretaries of
State about records and getting information from those previous
Secretaries of State. Is that accurate?
Mr. Kennedy. Yes, sir.
Mr. Jordan. Actually, you sent it to their designees if I
remember correctly?
Mr. Kennedy. Yes, sir. They were designees ----
Mr. Jordan. Their lawyer, their ----
Mr. Kennedy. Attorneys or their ----
Mr. Jordan. Yes. Yes. Yes.
Mr. Kennedy.--senior staff representative.
Mr. Jordan. When did you send that letter?
Mr. Kennedy. I believe it was sent in July, August of '14
----
Mr. Jordan. I thought it was ----
Mr. Kennedy.--October '14.
Mr. Jordan. Okay. That is what I thought. I had October 28,
2014. And why did you send that letter? What prompted you to
decide that you needed to send that letter to the four previous
Secretaries of State?
Mr. Kennedy. Basically, we had been reviewing thousands of
pages of documents in response to a number of requests,
including requests from this committee regarding the Benghazi
temporary special mission attacks. And as we worked through all
the documents, all the volume of material involved in that
process, we noticed that there was the use of a non-State email
address that apparently may have come from Secretary Clinton.
Mr. Jordan. Well, that is not what you told us when we
deposed you in February this year. You said you did it because
of NARA concerns.
Mr. Kennedy. Well, because--yes.
Mr. Jordan. Is that the same difference?
Mr. Kennedy. It's the same difference.
Mr. Jordan. All right.
Mr. Kennedy. We saw a potential Federal record, and
therefore, that ----
Mr. Jordan. So what prompted you was the Benghazi Committee
request and requests from this committee and FOIA requests, and
you weren't complying with the NARA law, is that right?
Mr. Kennedy. We--no, we were--we--we were looking through
documents in response to a committee request.
Mr. Jordan. Okay. Okay.
Mr. Kennedy. We saw evidence that there might be a Federal
record from a non-Federal source ----
Mr. Jordan. Got it.
Mr. Kennedy.--and that then trips our requirements to
provide ----
Mr. Jordan. Between the time you knew ----
Mr. Kennedy.--the Federal Records Act.
Mr. Jordan. When all this prompted you, the request and the
NARA law and everything else, when all this prompted you,
between the time you knew you had to do something different and
when you actually sent the letter, did you talk to any of the
former Secretaries of State, any of those four or any of their
four designees?
Mr. Kennedy. Not to the best of my recollection.
Mr. Jordan. Did you communicate with any of them?
Mr. Kennedy. Not to the best of my recollection.
Mr. Jordan. Did you meet with any of them or talk to any of
them about any subject?
Mr. Kennedy. I regularly am in communication with former--
one of the responsibilities of the position of the Under
Secretary for Management is to be in contact with former
Secretaries of State on managerial, administrative, support --
--
Mr. Jordan. Did you ----
Mr. Kennedy.--issues so ----
Mr. Jordan. Did you ----
Mr. Kennedy.--the answer to that is yes.
Mr. Jordan. Well, let me just get specific. Did you talk to
Cheryl Mills between the time you knew you had to do something
different with record retention and when you sent the letter?
Mr. Kennedy. I don't remember doing so, sir.
Mr. Jordan. You don't remember talking to her at all?
Mr. Kennedy. No, I don't remember talking to her about the
records.
Mr. Jordan. Did you meet with her at all in that time
frame?
Mr. Kennedy. Cheryl Mills was and remained beyond the
departure of Secretary Clinton as the special representative
for Haiti, and I had a number --because of the importance of
Haitian issues ----
Mr. Jordan. So you told us in February you had lunch with
her in this time frame ----
Mr. Kennedy. Yes.
Mr. Jordan.--and you met with her on numerous occasions. Is
that accurate?
Mr. Kennedy. That is--that is what I'm saying, sir.
Mr. Jordan. Okay. You also said when we asked you, I asked
you--I said between the time you learned that you needed to do
something different as far as record retention goes and when
you actually sent the letter, you had numerous conversations
with Cheryl Mills, but you are saying none of them dealt with
this issue?
Mr. Kennedy. That is correct because ----
Mr. Jordan. In fact, you answered me and you said this: ``I
never tipped her off.'' Is that accurate?
Mr. Kennedy. If I--could I ----
Mr. Jordan. I am just quoting ----
Mr. Kennedy.--answer ----
Mr. Jordan.--back what you said to us in that deposition.
Mr. Kennedy. Oh. I am not changing my deposition one iota,
but two things, sir. One is I was not brought up to date
immediately on the fact that my colleagues and staff had come
across this one email thing and then were researching through
the material. That was not brought to my attention ----
Mr. Jordan. Here is ----
Mr. Kennedy.--until much later.
Mr. Jordan. Here is what I want to get to. The FBI released
their report last Friday. They say on page 15, ``During the
summer of 2014, State Department indicated to Cheryl Mills a
request for Clinton's work-related emails would be forthcoming.
And in October of 2014 the State Department followed up by
sending an official request to Clinton asking for her work-
related emails.''
Now, you just said in February when you were under oath and
you were deposed in front of the Benghazi Committee that you
never tipped her off, but somebody tipped her off because
during the summer of 2014 she got a heads up that this letter
was coming. Do you know who tipped her off?
Mr. Kennedy. No, sir, I do not.
Mr. Jordan. And it wasn't you, Ambassador Kennedy?
Mr. Kennedy. Not--not to the best of my knowledge, no, sir.
Mr. Jordan. Ambassador Kennedy, were you interviewed by the
FBI?
Mr. Kennedy. Yes, sir.
Mr. Jordan. Ambassador Jacobs, did you tip Hillary Clinton
off in the summer of 2014 before this letter ----
Ms. Jacobs. No, sir, I did not.
Mr. Jordan. Were you interviewed by the FBI?
Ms. Jacobs. No, I was not.
Mr. Jordan. Ms. Lang, did you tip Hillary Clinton off or
Cheryl Mills off in the summer of 2014?
Ms. Lang. No, I did not, sir.
Mr. Jordan. Were you interviewed by the FBI?
Ms. Lang. No, I was not, sir.
Mr. Jordan. Mr. Finney, did you tip Cheryl Mills off?
Mr. Finney. No, sir.
Mr. Jordan. Did you tip Hillary Clinton off?
Mr. Finney. No, sir.
Mr. Jordan. Were you interviewed by the FBI?
Mr. Finney. No, sir.
Mr. Jordan. So somebody who was interviewed by the FBI told
the FBI we tipped her off. Have you done an investigation,
Ambassador Kennedy, on who might have tipped off--I mean, here
is what this gets to. Once again, Hillary Clinton gets treated
different than anybody else. She got tipped off. I don't think
Ambassador Powell got tipped off--have you started an
investigation, Ambassador Kennedy, on who might have tipped
Hillary Clinton off before she got the letter requesting ----
Mr. Kennedy. No, sir, I did not.
Mr. Jordan.--these documents?
Mr. Kennedy. I have not.
Mr. Jordan. Any idea who did tip her off?
Mr. Kennedy. No, sir.
Mr. Jordan. I yield back.
Chairman Chaffetz. I thank the gentleman.
I will now recognize the gentleman from Pennsylvania, Mr.
Cartwright, for 5 minutes.
Mr. Cartwright. Thank you, Mr. Chairman.
Ambassador Kennedy, I want to ask you some questions about
the three emails out of the 30,000 that FBI Director Comey
referenced that supposedly had some kind of classification
markings on them. And of course if anyone is scoring along at
home, that means 29,997 emails produced with no markings
whatsoever, not even defective or incorrect classification
markings.
I want to talk about the manual on how you properly mark a
classified document. Executive Order 13526 and the directive
implementing it require classified documents to be marked in a
certain way. The document must identify the original
classifier, correct, Ambassador Kennedy?
Mr. Kennedy. That is correct, sir. There is, in effect, a
four-line marking that must go ----
Mr. Cartwright. It must identify ----
Mr. Kennedy.--on all classified documents.
Mr. Cartwright.--the agency of the office of origin,
correct?
Mr. Kennedy. Yes, sir.
Mr. Cartwright. It must identify the reason for
classification, correct?
Mr. Kennedy. Yes, sir.
Mr. Cartwright. It must identify the date for
declassification, right?
Mr. Kennedy. Yes, sir.
Mr. Cartwright. And classified documents typically have to
have a banner or a header at the top and bottom that say
classified along with the level of classification, am I correct
in that?
Mr. Kennedy. Yes, sir.
Mr. Cartwright. Okay. So five different requirements in the
manual, and the three emails that Director Comey testified
about had none of these indicators. Am I correct in that?
Mr. Kennedy. That is correct, sir.
Mr. Cartwright. Not one of the five required marking
requirements, am I correct in that?
Mr. Kennedy. That is correct, sir.
Mr. Cartwright. Okay. The three emails had none of them. As
a result, Director Comey, sitting where you are sitting right
now, testified that it would be reasonable for somebody looking
at a document with none of these required markings immediately
to infer that they were not classified. Are you aware of that
testimony?
Mr. Kennedy. I am aware of it, sir.
Mr. Cartwright. And do you agree with Director Comey that
someone who was familiar with properly marking classified
documents would reasonably consider such documents without any
of these five requirements not classified?
Mr. Kennedy. I fully agree with the director.
Mr. Cartwright. Now, State Department spokesman John Kirby
said that the parentheses ``C'' markings, the one that referred
to confidential, the lowest level of classifications, on those
three emails John Kirby said those markings themselves were in
error and they were not ``necessary or appropriate at the time
they were sent as an actual email.'' Is that your understanding
as well?
Mr. Kennedy. Yes, sir.
Mr. Cartwright. Well, I want to show you one of these
emails, and it is dated August 2, 2012. The marking--and we
have that up on the screen for you as well.
[Slide.]
Mr. Cartwright. Do you have that, Ambassador?
Mr. Kennedy. I do, sir.
Mr. Cartwright. All right. The marking that Director Comey
referred to is the C in parentheses at the beginning of the
email, and that is the marking that the State Department said
was a mistake. Do you see that?
Mr. Kennedy. Yes, sir.
Mr. Cartwright. And then four paragraphs follow. Do you see
them?
Mr. Kennedy. Yes, sir.
Mr. Cartwright. Each of the paragraphs says SBU and we have
covered that in today's hearing. SBU means sensitive but
unclassified, right?
Mr. Kennedy. That means--yes, sir, and that means it does
not have to be moved in classified channels.
Mr. Cartwright. So every one of these four paragraphs in
the bulk of this email are sensitive but unclassified, right?
Mr. Kennedy. Yes, sir.
Mr. Cartwright. Okay. So this email is, in fact
unclassified and it always has been, hasn't it?
Mr. Kennedy. Yes, sir.
Mr. Cartwright. Now, did the FBI consult with you about the
classification status of this email?
Mr. Kennedy. They did not consult with me personally. I
know the State Department did provide some input to the FBI,
but their decisions are their decisions--their writings are
their writings.
Mr. Cartwright. When you say ``their,'' who do you mean?
Mr. Kennedy. The FBI, sir.
Mr. Cartwright. All right. Do you know why the FBI did not
consult with you about the classification status of this email?
Mr. Kennedy. I would have to check, Congressman, to see if
they consulted with someone else at the State Department. I
know they did not consult with me. But the--but as you
correctly point out, the subject line there is--does not have
any classified material in it, nor does the text of the--of
that. And even the redactions that are there, the redaction B-5
is a redaction for deliberative process, not for
classification. So this document is unclassified.
Mr. Cartwright. I thank you, Ambassador, and I yield back.
Chairman Chaffetz. I thank the gentleman.
I will now recognize the gentleman from Michigan, Mr.
Walberg, for 5 minutes.
Mr. Walberg. Thank you, Mr. Chairman, and thanks to the
panel for being here.
Mr. Finney, when did you first become aware of the extent
to which Secretary Clinton relied on private server emails to
address her conduct, her responsibilities in State Department
business?
Mr. Finney. Sir, I couldn't give you the actual date and
time frame, but I do know that when we had started receiving
the actual documents at the State Department, that's when I
came to realize that she was using another device other than --
--
Mr. Walberg. Do you recall a January 2009 FOIA request for
correspondence related to Secretary Clinton?
Mr. Finney. Sir, without looking at the case, I couldn't
specifically know.
Mr. Walberg. But you would identify the fact that you have
logs, so if you can't recall it right here, there is a January
9 of '09 request for information and correspondence from
Secretary Clinton. So you would be able to go back, whether you
recall it right now.
Mr. Finney. Yes, sir. If we've received it in the Executive
Secretariat, then we could go back.
Mr. Walberg. On the basis of that, did you review email
correspondence from the Secretary in putting together the
response to this January 2009 request?
Mr. Finney. No, sir, because we did not have emails--she
did not have a State.gov account, so all we could search was
our records that we had, sir.
Mr. Walberg. So you then, as I understand it, did not
realize the extent to which the Secretary was using her private
email server, and on the basis of that, you couldn't do
anything about it?
Mr. Finney. Again, sir, did not know that she had a server
or other email accounts that she was using until we received it
in the Department.
Mr. Walberg. Well, if this request was made in 2009, how
was the Department able to close a request for correspondence
covering Secretary Clinton when the Department did not have
access to all of the email correspondence from the Secretary?
Mr. Finney. Again, sir, I would have to see the specific
request and see what they're asking and see if it, in fact ----
Mr. Walberg. But they did ask. You have got a log of that.
Mr. Finney. Again, sir, I would have to see if we in the
Executive Secretariat received it because when FOIAs come in,
they do not come directly to the Executive Secretariat. They
come to a bureau ----
Mr. Walberg. Now that you know, is the Department reopening
requests that would encompass the Secretary's emails that were
closed prior to disclosure that she was using her private
server, private emails for conducting official business?
Mr. Finney. I'm not able to answer that question, sir,
because I'm only responsible for the Executive Secretariat ----
Mr. Walberg. Who would be responsible for that? Mr.
Kennedy, now that you know it?
Mr. Kennedy. Now--that is why, Congressman, that we have
posted all of the 52,000 emails we received on the State
Department's public Web site so that if there was an email that
we now have but we did not have then, and therefore, since we
did not have it, we were telling the truth in response at that
moment. If anyone thinks that one of their inquiries did not
get a full response, we have posted all that material, all the
52,000-odd documents to our public FOIA Web site in a
searchable form so that we can be, in effect, retroactively
responsive to any earlier inquiries that we did not have
records of then.
Mr. Walberg. Wow.
Mr. Kennedy. So we are at--anyone who had made a request,
they can now go to the--our Web site and they--all the 52,000
----
Mr. Walberg. So we got the requests?
Mr. Kennedy. Pardon me, sir?
Mr. Walberg. We have the requests, then, on the Web site?
That is what you are saying?
Mr. Kennedy. No, we have the documents on the Web site.
Mr. Walberg. Okay.
Mr. Kennedy. All 52,000 documents are on the Web site, and
therefore, if we did not respond before because we did not have
the record then and we have the record now, the 52,000, we put
all 52,000 of them up on the State Department public Web site,
accessible to every member of the public.
Mr. Walberg. Again, Mr. Chairman, I think this the reason
for this hearing, isn't it? The sloppiness, the messiness, and
the ability for a Secretary of State to do something that
shouldn't have been done.
Mr. Finney, do you recall a FOIA request from August 27,
2010, that specifically requested emails sent to Hillary
Clinton?
Mr. Finney. Not right offhand, sir.
Mr. Walberg. As of January 25, 2011, this request had been
marked pending. Given that this FOIA request specifically asked
for records related to email sent to the Secretary, your
processing should have, as I understand it, included review of
the Secretary's inbox. Did that processing take place?
Mr. Finney. Again, sir, I'll have to see if in fact the
Executive Secretariat actually received the request.
Mr. Walberg. Mr. Chairman, I yield back.
Chairman Chaffetz. I thank the gentleman.
Before he does that, if he would yield for a second.
There was a choice. The Secretary had a choice. She chose
to not abide by the rules of the State Department, and she went
off and for her own convenience created her own account, her
own server, and her own mess.
Mr. Walberg. Federal records.
Chairman Chaffetz. Federal records. There was a choice.
This was not a mistake. A mistake is when you accidentally put
the letter E at the end of potato. This is a conscious decision
to go a different route. And if you want to protect yourself
and make sure that there is not a reclassification problem or
something else, then use the .gov account. That is why it is
there. It is safe and secure.
And by the way, there are two systems at the State
Department. You can't just take classified information and hit
forward. That doesn't work like that. So we have got to get
into the depths of this. It is in part why we have the hearings
next week. But this was a very conscious choice and she chose
not to use the safety, the security, the expertise of the State
Department. She put the country and her Federal records in
jeopardy and created this mess that these poor people are going
to have to clean up for years to come.
I will now recognize Mr. Lieu of California.
Mr. Lieu. Thank you, Mr. Chair.
Ambassador Kennedy, it is true, isn't it, that the Freedom
of Information Act does not apply to Members of Congress?
Mr. Kennedy. To the best of my knowledge, sir, that is
true.
Mr. Lieu. So let me just let that sink in for a moment. We
in Congress have passed this law asking other Federal agencies
to meet these standards that we ourselves are unwilling to
meet. It is pure hypocrisy. It is a double standard.
But it gets worse in this case. Did you know, Ambassador,
that all Members of Congress get security clearances?
Mr. Kennedy. I believe so, yes, sir.
Mr. Lieu. And we get it not because we go through a
background check but because we happen to win the most number
of votes in our district. And as Members with security
clearances, we get to have private email servers. We can have
one private email server. We can have five. We can have 27. We
could have private email accounts. We can conduct official
business on our private email server on our private email
account.
So I am not going to continue to participate in the
hypocrisy of today's hearing. Instead, I would like to use the
remainder of my time to talk about an issue that actually
matters, and that is the slaughter of children and civilians in
the country of Yemen being enabled by the U.S. Department of
State.
And, Ambassador, as a principal advisor to John Kerry and
as Under Secretary, I am sure that you know that last year the
State Department started providing material assistance to a
Saudi Arabia-led military coalition in the country of Yemen.
Are you aware that numerous human rights groups such as Amnesty
International, Human Rights Watch, as well as reporters on the
ground have documented numerous war crimes being committed by
this Saudi Arabia-led military coalition?
Mr. Kennedy. Congressman, I have seen references to that in
the press, but if I might, not an attempt to avoid your
question because I would be glad to arrange for someone to--
there are six Under Secretaries at the State Department. I am
the Under Secretary for Management.
Mr. Lieu. Right.
Mr. Kennedy. My writ is rather large but it does not
encompass political military ----
Mr. Lieu. I ----
Mr. Kennedy.--activities ----
Mr. Lieu. I ----
Mr. Kennedy.--foreign military assistance, or others.
Mr. Lieu. I understand and ----
Mr. Kennedy. I will be glad to work with you, though.
Mr. Lieu. I understand. And as a member in the minority
party, I do not get to set the agenda, but I have four State
Department officials here so I am going to ask these questions.
Are you aware that Amnesty International published a report
documenting at least 33 cases where the Saudi Arabia coalition,
with assistance of the United States, targeted and killed
civilians, many of them nowhere near military targets? And you
can just answer yes or no.
Mr. Kennedy. I have not seen that report, sir.
Mr. Lieu. Okay. All right. Are you aware that just last
month, this Saudi Arabia-led coalition targeted and killed
children at a school? There were 28 kids, 18 were injured, 10
were killed. Some were as young as 6, 7, 8 years old. Are you
aware of that?
Mr. Kennedy. No, sir, I am not.
Mr. Lieu. Are you aware that this Saudi Arabia-led military
coalition struck a fourth hospital facility last month, this
time a Doctors Without Borders hospital, killing numerous
patients, doctors, and hospital staff? Are you aware of that?
Mr. Kennedy. I think I may have seen that in the
newspapers, sir.
Mr. Lieu. You would agree with me, wouldn't you, that it is
a war crime if you target and kill civilians nowhere near
military targets?
Mr. Kennedy. I am not a lawyer, sir, but obviously the
direct and--the direct and--targeting of civilians without any
other justification is certainly not ----
Mr. Lieu. Thank you.
Mr. Kennedy.--not acceptable.
Mr. Lieu. Thank you. And you are aware that the United
States is providing refueling of Saudi Arabia jets, logistical
support, intelligence, and other assistance, correct?
Mr. Kennedy. I am aware that we are assisting the Saudi
Arabians to--forces to combat terrorist activities in Yemen,
yes, sir.
Mr. Lieu. And the State Department has now proposed yet
another sale of billions of dollars of arms and munitions to
Saudi Arabia that the State Department noticed when Congress
was in recess so that we would have very little time to act on
it. Is that correct?
Mr. Kennedy. I am not aware of that congressional
notification, sir, but I do--aware that the work with the
government of Saudi Arabia to help combat terrorism in the
Middle East.
Mr. Lieu. Combating terrorism is fine. Using war crimes to
do it is not fine.
Are you aware that a person who aids and abets someone who
is committing war crimes can also be guilty of war crimes?
Mr. Kennedy. I--no, sir, I am not a lawyer.
Mr. Lieu. Okay. So my recommendation is that you check with
the lawyers of the State Department and you ask them the
question why is the State Department looking like it is aiding
and abetting the commission of war crimes in Yemen.
And with that, I yield back.
Mr. Kennedy. I promise you, sir, that I will arrange for
the appropriate senior official of the State Department to be
in touch with you.
Chairman Chaffetz. And to Mr. Lieu, I would also ----
Mr. Lieu. Thank you.
Chairman Chaffetz. To Mr. Lieu, I would also add that we
have, for a couple months, been trying to get Secretary Kerry
to come appear before this committee, sensitive to his
schedule, but we are at the point where we may have to step it
up a notch. But it is the intention of the committee to have
the Secretary come to answer. So hone those questions, and
hopefully, that will happen in the next week or two.
Mr. Lieu. Thank you, Mr. Chairman.
Chairman Chaffetz. Thank you. I will now recognize the
gentleman from South Carolina, Mr. Gowdy.
Mr. Gowdy. Thank you, Mr. Chairman.
Mr. Finney, I had a series of questions for you that I will
submit to you in writing. I am going to have to deviate from
what I had planned to do because of the ranking member's
opening statement, which I found instructive, if not
predictable.
So I want us to summarize for just a second. Secretary
Clinton said she followed all State Department rules and
regulations, but the truth is she did not. Secretary Clinton
said her unique email arrangement was approved by the State
Department, but it was not. Secretary Clinton said she used one
device for convenience, but she did not. Secretary Clinton said
she did not send or receive classified material, but she did.
She said she turned over all of her work-related emails, but
she did not. She said her attorneys personally reviewed each
email, but they did not.
So when faced with a series of demonstrably false
statements, utterly impeached by both fact and logic, the
ranking member did what lots of criminal defense attorneys do,
which is blame the investigator. And when that didn't work,
they throw the Hail Mary pass of all criminal defense
attorneys. Other people did it, too.
Which brings me to General Colin Powell, one of the most
respected people in our country's history, you know, Secretary
Clinton told the FBI--and I will concede she says different
things to the public than she says to the FBI--but she told the
FBI that Colin Powell's advice had nothing to do with her
decision to set up her unique email arrangement with herself.
Now, I am going to say that again in case anybody missed it.
Secretary Clinton told the FBI under penalty of not telling the
truth, that Colin Powell's advice, email, had nothing to do
with her decision to set up that unique email arrangement with
herself.
Now, I will say this in defense of Mr. Cummings. I
understand why he may not believe her. I understand that. I
understand why he may have credibility issues with anything
that the Secretary said. I get that. But I think it would have
been fair when you are using your opening to criticize Colin
Powell to at least point out the person you are trying to
defend doesn't even say Colin Powell was the impetus behind her
decision to have that unique email arrangement with herself.
So let me ask you this. Secretary Clinton was asked--
because she frequently says 90 to 95 percent of her emails were
in the State Department's system. Have you heard her say that?
Mr. Finney. Sir, I can't recall.
Mr. Gowdy. Well, it won't take you long to find it. She
says it a lot. Or she said it a lot and then she was asked, who
told you that? Who told you that 90 to 95 percent of your
emails were in the State Department's system? And you may find
her answer interesting. We learned that from the State
Department and their analysis of the emails that were already
on the system. We were trying to help them close some gaps. I
like the word gaps. I guess if you consider the Grand Canyon to
be a gap, then yes, there were some gaps in her email.
Did you have 90 or 95 percent of her emails on your system?
Mr. Finney. Again, sir, the only emails we would have is
what has been provided recently, which was that 55,000 that we
got ----
Mr. Gowdy. Well, no, I am going back before that, Mr.
Finney. She said you already had them before she gave them to
you. You already had 90 to 95 percent. Was that true?
Mr. Finney. Again, sir, the emails that we're looking at,
talking about the State.gov emails, she did not have a
State.gov account, and as far as the emails that we received
from her came at that time frame when it was turned to the
Department and it was processed by a bureau.
Mr. Gowdy. But she made this contention before she ever
returned them. She said you already had 90 to 95 percent. She
was just helping you fill in some gaps. If you had 90 to 95
percent, why weren't you complying with FOIA?
Mr. Finney. Again, sir, what I have in our system is what--
received by a bureau ----
Mr. Gowdy. Well, let me see if ----
Mr. Finney.--and not just the ----
Mr. Gowdy.--I can put that in South Carolina terms that I
can understand. If she said that you already had 90 to 95
percent of her emails before she ever returned them, that ain't
true.
Mr. Finney. Sir, if I may say this, unless she's talking
about the files that were sent to other individuals within the
State Department, sent to their State.gov account.
Mr. Gowdy. Well, how does that capture personal-to-personal
emails? And how about the 14,000 that she didn't turn over. Did
you have those?
Mr. Finney. Again, sir, what you're talking about here ----
Mr. Gowdy. Oh, I understand her position. The fact that I
didn't keep them doesn't mean that whoever I sent it to didn't
keep it. I get that. What if it is private to private? How are
you supposed to have Sidney Blumenthal's emails if it is
private account to private account? How do you have that?
Mr. Finney. Sir, if you look at what we're doing today in
accordance to the Federal Records Act of 2014 that was amended,
it requires that if an employee uses their Gmail account or
private-issued account, they are required by law to send that
email to their State.gov account. That was amended in 2014, and
that is what I'm briefing and the State Department briefs
today.
Mr. Gowdy. It sounds like it was a couple years too late,
but I am out of time.
Chairman Chaffetz. I thank the gentleman.
I now recognize the gentlewoman from the Virgin Islands,
Ms. Plaskett, for 5 minutes.
Ms. Plaskett. Thank you very much, Mr. Chairman. And good
morning to you all. Thank you for being here.
I believe that the ranking member--and I don't want to get
into his head--was pointing out the disparity between the two
Secretaries not to absolve Secretary Clinton of her
responsibility because as we have all seen in testimony that
she has given that she has taken full responsibility for her
own emails--but to point out the disparity and the bias in this
own committee in how it treats different Secretaries of State.
I want to ask you about some emails that I hope you have
received from other Secretaries. Ambassador Kennedy, do you
have any emails from the Secretary of State who was the
Secretary of State in December 2002 or January of 2003?
Mr. Kennedy. No. No, I do not.
Ms. Plaskett. And that would be Secretary Colin Powell,
would that not?
Mr. Kennedy. Yes, ma'am.
Ms. Plaskett. Those are very interesting emails, I would
think, because that would be the 2 months before he gave
testimony on February 5, 2003, before the United Nations saying
that there were weapons of mass destruction, which has resulted
in the death of almost tens of thousands of Americans with the
Iraq war. But this committee, which says that it is
investigating these breaches and these emails because they are
concerned with the lives of Americans, don't seem to be
concerned with the email traffic that went on that precipitated
that testimony, which led us to war. They are not concerned at
all with those emails, but they are concerned with Secretary
Clinton's emails.
How many emails have you received from Secretary Colin
Powell?
Mr. Kennedy. The only ones that I'm aware of that are in
our possession are the documents that you just handed out that
we received via the FBI in an interchange between Secretary
Clinton and then-former Secretary Powell.
Ms. Plaskett. I have got a great one from that exchange,
which is an email exchange between Secretary Clinton and former
Secretary Colin Powell from January 23, 2009. And we can put
that up there. And I would ask unanimous consent to submit that
into the record. This is 2 days after Secretary Clinton was
sworn in when she asked Secretary Powell for advice on how he
used his personal mobile device in his office at the State
Department, which is a secure space for classified information
called a SCIF.
So, Ambassador Kennedy, can you explain why Diplomatic
Security does not permit anyone to bring a Blackberry or cell
phone, an iPhone into a Secretary's office at the Department?
Mr. Kennedy. We operate under the--under rules laid out by
the--by the former director of the CIA, now the director of the
Office of National Intelligence, in that you do not ingest
certain documents into a secure compartment information
facility because they may pick up signals and transmit them
out.
Ms. Plaskett. Now, Secretary Powell, who everyone I believe
in the House would admit is an amazing American, a patriot to
this country, describes in this email with Secretary Clinton
that he used a personal phone line to set up ``to communicate
with a wide range of friends directly without it going through
the State Department servers.'' He said he also used that
account to do business with foreign leaders and other State
Department officials who were using their personal email
accounts.
Now, this is not to say that Secretary Clinton should have
done this. What I am pointing this out to say is that Secretary
Powell, by his own admission in this email, says that he did
this as well. And we know that some very, very serious matters
were discussed during his time frame, which this committee does
not seem to be interested in at all.
And Secretary Powell has given how much of his AOL email
accounts to you all during your FOIA requests?
Mr. Kennedy. We have received no documents from Secretary
Powell.
Ms. Plaskett. And I heard Mr. Finney say that there is a
directive that if an email is sent from a personal email that
is related to State Department matters, it should be sent then
to a State Department email account?
Mr. Kennedy. That is something that was put into effect in
2014 prior to the--after the amendments to the Federal Records
Act. The earlier requirement was that if you sent an email from
your personal account, you could either copy it to yourself or
provide a paper copy.
Ms. Plaskett. And was a paper copy provided from Secretary
Powell?
Mr. Kennedy. I am aware of no paper copies.
Ms. Plaskett. No paper copy? And when is this committee
going to receive that? And where is the urgency that we seem to
have for Secretary Clinton, giving us this - going to, in fact
be given across the board to the other Secretary? Secretary
Powell explained that he disregarded Diplomatic Security, the
NSA, and the CIA and used his personal mobile device in secure
State Department spaces. He says, ``And the issue was DS would
not allow them into the secure space especially up your way.
When I asked why not, they gave me all kinds of nonsense about
how they gave out signals and could be read by spies, et
cetera, same reason they tried to keep mobile phones out of the
suite. They never satisfied me and NSA/CIA wouldn't back off.
So we just went about our business and stopped asking. I had an
ancient version of a PDA and used it.''
Mr. Kennedy, were you aware that Secretary Powell used his
PDA in the SCIF?
Mr. Kennedy. No, I was not. I was not in this position at
that time.
Ms. Plaskett. Are you aware of that now?
Mr. Kennedy. I am aware of it from having read ----
Ms. Plaskett. Would the ----
Mr. Kennedy.--the email.
Ms. Plaskett. Would the Secretary who was in your position
at that time have allowed that to have occurred?
Mr. Kennedy. He would not have.
Mr. Amash. [Presiding] The gentlewoman's time has expired.
Ms. Plaskett. Thank you.
Mr. Amash. I now recognize the gentleman from North
Carolina, Mr. Meadows.
Mr. Meadows. Thank you, Mr. Chairman. Thank each of you for
your testimony.
I think part of what my colleague opposite is talking about
is a double standard, and so certainly if Colin Powell has
emails that belong and should belong to the Federal Government
and the people of this great country, they need to go--you need
to go after them, you need to request them official, and you
need to get them. I am with her on that. Whether it is Colin
Powell or Hillary Clinton, they do not belong to those
individuals. They belong to the American people.
But let's talk about a double standard because the very
email that my colleague opposite just put up actually is an
email that she obtained from the State Department in the last
couple of days, isn't that, correct, Ambassador Kennedy?
Mr. Kennedy. We received a request from the ranking member
signed by ----
Mr. Meadows. Seven members, right?
Mr. Kennedy. The seven-member rule, yes, sir.
Mr. Meadows. Yes. So let me ask you how this happens
because the double standard that I am seeing here is an
incredibly quick response by the State Department when it is
responded to the ranking member in defense of this particular
hearing and a slow walk when it comes from the chairman.
And let me give you some examples because in January of
this year the chairman requested information as it related to
Hillary Clinton's FOIA requests and so forth, and it took 40
days to get a performance evaluation on Ms. Lang. That was the
only response in 40 days, all right? Do you find that
troubling, Ambassador Kennedy?
Mr. Kennedy. No.
Mr. Meadows. Oh, you don't find that troubling?
Mr. Kennedy. No, sir. If I could explain ----
Mr. Meadows. No, just--that is good enough. You have
responded. So you don't find it troubling. So let me ask, the
ranking member Mr. Cummings asked for information on
Condoleezza Rice and Colin Powell on February the 4th. You got
a full response to him in less than 30 days, isn't that
correct?
Mr. Kennedy. The difference is you asked for one ----
Mr. Meadows. I didn't ask for the difference. Did you ----
Mr. Kennedy. You asked for one--you asked for one document
----
Mr. Meadows. All right. Well, we will go there.
Mr. Kennedy. It is very easy to find one document ----
Mr. Meadows. All right. But ----
Mr. Kennedy.--it produced 186,000 documents ----
Mr. Meadows. Fair enough, Ambassador Kennedy. So let's go
to the specifics. On September 2 you get a letter from the
ranking member asking for Colin Powell's emails between he and
Hillary Clinton--I mean, between Hillary Clinton and Colin
Powell, the supposedly seven-member request, on September 2,
and 5 days later he gets the emails. Do you find that
extraordinarily fast in that there was a FOIA request for that
same information that has been outstanding since 2014? So the
public asked for it in 2014, the ranking member asked for it 5
days ago, and you got it to him before this hearing. Do you not
see a double standard there?
Mr. Kennedy. I see two things, Mr. Congressman. One is we--
in--we did--this is part of the material we just received from
the FBI, so we did not have it until ----
Mr. Meadows. So the ----
Mr. Kennedy.--in the past month.
Mr. Meadows. The FOIA request--you sent this information to
the person who requested the FOIA as well?
Mr. Kennedy. That FOIA--I don't--I would have to find out
where ----
Mr. Meadows. All right, because here is the interesting
other aspect. You made a caution, ``The Department has concerns
about the public release of these documents. FOIA markings and
redactions reflect the fact that the documents are currently
being processed for FOIA and have undergone an initial review.
However, the preparation of these documents for the public
release has not yet been completed.'' But yet they released
them. Di you not see a problem with that?
Mr. Kennedy. Mr. Meadows, we try, to the best of our
ability, to respond to committees of Congress.
Mr. Meadows. I ----
Mr. Kennedy. That is a priority--there is ----
Mr. Meadows. But it is with unbelievable ----
Mr. Kennedy. You're ----
Mr. Meadows.--speed when it fits the narrative that you
want to do. So here is my request of you, Ambassador. I have
got two. The chairman asked for a very simple request that has
been outstanding from the AP about a calendar. It shouldn't be
a hard request. It is not 137,000 pages. Can you respond in the
same length of time that you responded to the ranking member in
5 days?
Mr. Kennedy. The answer that--to that, sir, is whether or
not there is any information that we have to call out on those
calendars ----
Mr. Meadows. You have been looking at it since the 2010 for
the AP. I would think that eventually you would be able to do
it, 5 days.
Mr. Kennedy. Sir ----
Mr. Meadows. All right, here is the last one ----
Mr. Kennedy.--we can get ----
Mr. Meadows.--because I am running out of time. Two years
ago I asked you a question in Foreign Affairs under sworn
testimony, was it you or Hillary Rodham Clinton who decided to
not publish the bonuses for State Department? Because it has to
be one or the other, either you or Hillary Rodham Clinton. Two
years later, I am still waiting for a response. I want a direct
response. Was it your decision to make sure that bonuses are
not public and not transparent or was it hers?
I will yield back.
Chairman Chaffetz. We would like you to answer the
question.
Mr. Kennedy. Sorry. The time--the answer is, sir, that I--I
do not recall the question from you, and therefore, I humbly
apologize. I will get you an answer. My general recollection is
that it was a decision made government-wide not to publish
documents--not to publish bonuses, but I will ----
Mr. Meadows. Mr. Chairman ----
Mr. Kennedy. I will research that.
Mr. Meadows.--to clarify, there is only one of two people
who could have made that decision, either you or Hillary Rodham
Clinton. Who was it? That is what I want to know.
Mr. Kennedy. It definitely wasn't Secretary Clinton. That
kind of decision did not go up to her.
Chairman Chaffetz. Wait a second. You just said you didn't
----
Mr. Meadows. So you said you don't know but yet you know it
wasn't her? That is the answer ----
Mr. Kennedy. Yes, because I would never send an issue of
that nature to the Secretary of State because the Secretary of
State, no matter whether it's George Shultz, Colin Powell, or
Hillary Rodham Clinton or John Kerry does not need to deal with
an issue of that stature.
Chairman Chaffetz. All right, thank you. I will now
recognize the gentlewoman from the District of Columbia, Ms.
Norton.
Ms. Norton. Thank you, Mr. Chairman. You know, the words
``government reform'' are in the title to this committee, so I
grow weary when we play gotcha all the time and no reform comes
out of the system. I am very interested in what happened here
because I think it does illustrate probably the kind of
confusion one might expect in a system that has classified and
unclassified. So I am really looking for what the reform we can
get out of this system and asking you, Ambassador Kennedy, to
help me out.
Director Comey, for example, testified that there were
30,000 emails that the Secretary provided to the State
Department. Two thousands were later determined to be
classified. Now, let me tell you the danger I see in that. This
is after-the-fact classification. Now, you know, we always
complain about over-classification. This isn't that. It is
after the fact. This is something that should be secret so it
shouldn't be shared, but by that time, who knows how many
people have had it shared with them.
So I am trying to come to grips with after-the-fact
classification. Do you see a systemic problem when so many
members--2,000; it is a larger number there, so they would be
senior foreign service members--could have been writing
information they believe to be unclassified just to be
overturned, God knows when, by FOIA in which case everybody
would say whoops, I just didn't know?
And apparently, for those 2,000, at least 1,000 people were
on these emails. Could I ask you what advice does the State
Department give its employees about the possibility of
retroactive classification? Does it warn them that these emails
are not classified now but don't share them because they are
subject to being reclassified as classified?
Mr. Kennedy. Congressman, you've posed a very, very salient
question, and if I could address it two ways. First of all,
there is a large amount of information that the State
Department receives in the course of its business that we call
foreign government information. This is information we get from
a foreign government in the course of our diplomatic activities
around the world.
Ms. Norton. You mean all of that wouldn't be classified?
Mr. Kennedy. Not all of it would be classified. Much of it
is not given to us in confidence and there is not a risk of
loss of life if the information came out that is given to us
and we treat it as unclassified foreign ----
Ms. Norton. Loss of life, I'm not familiar with that
standard.
Mr. Kennedy. Well ----
Ms. Norton. What about loss of face?
Mr. Kennedy. I mean, that's what I'm getting to, ma'am.
This information is given to us and we treat it as sensitive
but unclassified.
Ms. Norton. Now, as sensitive, does that mean ----
Mr. Kennedy. Sensitive ----
Ms. Norton.--don't share this information ----
Mr. Kennedy. Don't share this information ----
Ms. Norton.--it could be classified later?
Mr. Kennedy. No, it's just sensitive information because it
was received often from a foreign source.
Ms. Norton. And we are only talking about ----
Mr. Kennedy. There are two ----
Ms. Norton. Are we only talking about foreign source? Were
all 2,000 foreign source?
Mr. Kennedy. No. To the best--we did a little calculation
and it's rough. Two thousand of the 2,100 emails were--are
confidential. We believe it's 70 percent of those 2,000, some
more or less 1,400 information were classified because they
contained foreign government information.
If you went to the Department of Defense or to the
Department of Energy, they have by statute--and the State
Department has been asking for a change in the law for several
years--that we have asked for the ability to declare that
material restricted so we can--do not have to release it to the
public because as you rightly pointed out, ma'am, it can be an
embarrassment. A foreign government gives us an ----
Ms. Norton. So sensitive versus restricted, what is the
difference?
Mr. Kennedy. It--the restricted means we would have the
authority under the FOIA to not provide that information to the
public.
Ms. Norton. Does that mean subject to possible
classification?
Mr. Kennedy. No, it just means that it would be exempt from
FOIA. And the reason why we have to retroactively ----
Ms. Norton. Yes, I am worried about there being ----
Mr. Kennedy. The reason we have to ----
Ms. Norton. Yes.
Mr. Kennedy.--retroactively classify it is we do not have
the same abilities and authorities that the Department of
Defense and the Department of Energy can do. They have an
ability to say this is exempt from FOIA. We don't have that--if
we had that, my ballpark back-of-the-envelope guess is 1,400 of
the 2,100 classifications would have disappeared and they would
have been available to the Congress because they--because of
the sensitive nature of foreign government exchange, they would
not have been available to anyone who reads it. And you
obviously all realize that a FOIA request doesn't only go to
American citizens. Anybody can make a FOIA request.
Ms. Norton. So this is very important as far as I am
concerned. So the reform here I would take it would be that--
what you are doing--you are being forced to use the
classification label ----
Mr. Kennedy. Exactly. We need the authority to have a
foreign government information exemption, and we have asked for
that from the Congress ----
Ms. Norton. Would this require a statutory change?
Mr. Kennedy. It does require a statutory change.
Ms. Norton. Mr. Chairman, please note that because I do
think that is important to know. I am not sure the committee
knew that. That testimony is important for me, and I think it
comes out, I think, at a good time when we are trying to find
out not only what happened but what to do about it.
Let me ask you finally, have you directed these thousand
people to do anything about like, for example, deleting this
classified information? Remember ----
Mr. Kennedy. We're ----
Ms. Norton.--retroactively classified from their systems.
Have you asked them, since it is now classified, to make sure
it is gone from your system? And indeed, what can you do about
it if it is retroactive?
Mr. Kennedy. We take certain steps with the highly
classified, but from the--for the FGI material we have not
taken that step ----
Ms. Norton. Don't you think you should?
Mr. Kennedy.--because those are within our system and we --
--
Ms. Norton. You mean those cannot be shared anyway?
Mr. Kennedy. We have now marked them so they were not going
to be released to ----
Ms. Norton. Could I just ask one--should they be deleted or
not?
Mr. Kennedy. We would not delete them. We would transfer
them to another system because we do not delete Federal
records.
Ms. Norton. Thank you, Mr. Chairman.
Chairman Chaffetz. Thank you. And it is a good takeaway. I
appreciate, Ambassador, your sharing that perspective and
driving that home with us, so thank you again.
I will now recognize the gentleman from Georgia, Mr. Hice,
for 5 minutes.
Mr. Hice. Thank you, Mr. Chairman.
Ambassador Jacobs, when responding to a FOIA request, who
in the State Department is responsible for determining what is
redacted?
Ms. Jacobs. Thank you for the question. It is the
responsibility of the people who work in our FOIA office, which
is in our Bureau of Administration, to determine what is
redacted.
Mr. Hice. Who is the lead person? Where does the buck stop?
Ms. Jacobs. It's a number of people who are trained and
skilled in the FOIA law who do this. There's not one particular
person.
Mr. Hice. Could you provide the names of those individuals
for us?
Ms. Jacobs. I can.
Mr. Hice. Okay. Is there a specific criteria that they use
to determine what is redacted and what is not?
Ms. Jacobs. Yes, sir. It's basically the FOIA law, the
exemptions that exist under the FOIA law.
Mr. Hice. Okay. When responding to a request from Congress,
who is responsible for determine what is redacted?
Ms. Jacobs. There are different standards that are used for
Congress, sir. I think that you get more information than we
would release to the public ordinarily.
Mr. Hice. I am not so sure that we do. How is the process
different between a FOIA request and a congressional request
when it comes to what is redacted and what is not?
Ms. Jacobs. I think we are guided by the different
agreements, arrangements that we have with Congress. Certainly
for releases to the general public, we follow the FOIA law, and
I think with Congress perhaps there are different procedures
that we follow.
Mr. Hice. Do you know what those different procedures are?
That is my question.
Ms. Jacobs. I'm not exactly sure of all of them. I'd have
to get back to you, sir?
Mr. Hice. Well, would you get back with me and clarify that
issue?
Ms. Jacobs. I will do that.
Mr. Hice. You have been really in charge, your role as
transparency coordinator in the State Department. Do you
believe the State Department is being transparent?
Ms. Jacobs. Yes, sir, I do. I think to the best of our
ability we are committed to openness and to--especially under
FOIA to releasing whatever we can.
Mr. Hice. Okay. But the question goes beyond FOIA. It goes
to congressional requests as well, and it is extremely
frustrating. You know, just for example I noticed with the FBI
but they just released a 58-page summary to the public,
publically released the other day. I was scanning through it.
In fact, I have a copy of it right here.
And listen, I understand--Mr. Chairman, I understand fully
when there are potential compromises in our national security,
I understand the need for redacted material. That is not even
in question, I don't believe, with anyone. But the current
process seems so arbitrary and just all over the map where and
how redactions take place. And frankly, this is an issue that
goes across the entire executive branch. And the questions out
there are multiple.
I am looking right now with the summary that came out the
other day, Ms. Clinton's birthday is redacted. I mean, what is
the potential national security threat of that? You can go in
Wikipedia and find it. In fact, I did.
Mr. Kennedy. Congressman, if I ----
Mr. Hice. That is--no, sir. If I ----
Mr. Kennedy. If I could just ask just ----
Mr. Hice. No, I am not asking you a question right now. I
am expressing frustration in the whole process. You know, the
very next sentence it mentions Ms. Clinton's five attorneys,
four of them by name but one of them is redacted. We seem to be
all over the map, and quite frankly, the end result appearance
at least--and I am not making an accusation--but the absolute
appearance is that obstruction is involved many times when it
comes to what is redacted and what is not.
And how in the world can we do our job of oversight when we
are not given the requested information that we need to do our
job or when what is received is so redacted it is difficult to
determine what has been really given us and what has not been
given.
So, Mr. Chairman, I think any reasonable person would
frequently look at the material, whether it is through a FOIA
request or a congressional request, and have great concerns
that information that is needed for whatever requested purpose
is not being provided accurately. And this, Ambassador Jacobs,
raises a question as to transparency at State, as well as other
departments.
And so, Mr. Chairman, I would just hope that we can not
only get the material that we have requested, all of it, but I
hope also that transparency can occur. It is America that is
suffering when we are not allowed to do the job that we have
been tasked to do here in Oversight.
And with that, Mr. Chairman, I yield back.
Chairman Chaffetz. Before he yields if the gentleman would
yield to me.
Mr. Hice. Yes, sir.
Chairman Chaffetz. Ambassador Jacobs, you are heading up
the transparency--or you are the transparency coordinator. What
is it that you believe Congress should not be able to see?
Ms. Jacobs. Sir, thank you for the question. I am not
completely familiar with all of the agreements and arrangements
that we have. I do know that in general ----
Chairman Chaffetz. But why should there be any agreements
and arrangements?
Ms. Jacobs. Well ----
Chairman Chaffetz. What could Congress not see? You were
brought in by Secretary Kerry, right ----
Ms. Jacobs. Yes.
Chairman Chaffetz.--to be the transparency person.
Ms. Jacobs. Yes.
Chairman Chaffetz. So you are champion of transparency.
What is it that Congress should not be able to see?
Ms. Jacobs. I think that Congress should have access to all
of the information that they are entitled to. I believe that
there are certain restrictions that--to privacy ----
Chairman Chaffetz. Give me an example. You have been in
foreign service for 33 years, so give me an example of
something that I as the chairman of the Oversight Committee or
Mr. Hice should not be able to see.
Ms. Jacobs. Highly classified compartmented information
perhaps if you don't have ----
Chairman Chaffetz. Like ----
Ms. Jacobs.--the proper clearance.
Chairman Chaffetz. SAP information?
Ms. Jacobs. I assume so, unless you have the proper
clearance.
Chairman Chaffetz. What else?
Ms. Jacobs. Information related to privacy--you know,
personally identifiable ----
Chairman Chaffetz. No, sorry ----
Ms. Jacobs.--information.
Chairman Chaffetz.--got that one wrong. Sorry. Congress is
exempt from the Privacy Act. So try again. What else?
Ms. Jacobs. Sir, I really believe that you should have
access to whatever information ----
Chairman Chaffetz. But when you get this thing, it is sent
to us and it is chock full of redactions. Why?
Ms. Jacobs. Is this--are you referring to ----
Chairman Chaffetz. No, we don't ----
Ms. Jacobs.--information that we sent or the FBI?
Chairman Chaffetz.--the whispering. We will allow you all
to do it. You don't need to kind of whisper in her ear and tell
her ----
Ms. Jacobs. No.
Chairman Chaffetz.--what the right answer it.
Ms. Jacobs. The question was whether this was information
from the FBI or from the State Department?
Chairman Chaffetz. I am asking from the State Department.
Ms. Jacobs. Okay. I--what I can do is offer to come up and
----
Chairman Chaffetz. You are here right now.
Ms. Jacobs. I understand, sir, but this is ----
Chairman Chaffetz. Ambassador Kennedy, come on, you have
got probably the most experience here. Give me an example. What
is it that Congress should not see?
Mr. Kennedy. I think that not every member of the
congressional staff should be entitled to ----
Chairman Chaffetz. I didn't ask about staff. I said Members
of Congress.
Mr. Kennedy. Okay. Then, Mr. Chairman, the only thing that
I believe is valid is executive--internal executive branch
deliberations leading to a decision.
Chairman Chaffetz. And that has ----
Mr. Kennedy. I think that is a prerogative of the Congress
to have its deliberations secret, and it's a prerogative of the
executive branch to arrive at a position and then come up and
defend that position wholly and fully before the Congress but
not necessarily all the internal puts and takes that went into
it ----
Chairman Chaffetz. And ----
Mr. Kennedy.--before an executive branch decision was made,
sir.
Chairman Chaffetz. And there is--the President can claim
executive privilege. There is a process to do that where the
President actually has to sign a document invoking that
executive privilege.
Mr. Cummings, if ----
Mr. Cummings. Yes, just real quick.
Chairman Chaffetz. Yes.
Mr. Cummings. Ambassador Kennedy, I am just curious about
something Mr. Hice just asked. Why would a birthday be
redacted? I am just curious.
Mr. Kennedy. Privacy ----
Mr. Cummings. You were trying to answer it and I was just
----
Mr. Kennedy. Yes, sir.
Mr. Cummings.--wondering what you were going to say?
Mr. Kennedy. We think that names of spouses, names of
children, birth dates, Social Security numbers, that
information is not necessary for the conduct of any business,
and there is always the possibility of spillage. I am not
accusing any Member of Congress or any staff member, but we
desperately try to make sure that information that is protected
under the Privacy Act is used only on an absolute need-to-know.
And ----
Chairman Chaffetz. The Privacy Act does not apply to
Congress, and what you are doing is you are conflating FOIA
with congressional requests. We have a SCIF. We deal with
classified information.
We have exhausted this for right now. Let's now recognize
the gentlewoman from New York, Mrs. Maloney.
Mrs. Maloney. Thank you, Mr. Chairman and Mr. Ranking
Member.
I would say that what this hearing shows very clearly is
that the classification system is broken, and it needs to be
reformed. This is something we could work together on in a
bipartisan way, and in fact, I will introduce this week a sense
of Congress that the classification system needs to be reviewed
and needs to be reformed.
I have here an email that the State Department marks as
sensitive but unclassified, clearly calls is unclassified,
calls it unclassified at the top and at the bottom, and yet the
FBI called it classified. Now, there is clearly something wrong
here.
Now, this memo was a memo written by a senior diplomat, a
Jeffrey Feltman, and he was the assistant secretary for the
Bureau of Near Eastern Affairs, a senior diplomat. It is his
personal email. And he calls each paragraph that he wrote SBU,
which stands for sensitive but unclassified. Now, if you look
at the State Department's foreign affairs manual, it clearly
says sensitive but unclassified information is ``not
classified.''
So I would like to ask you, Mr. Kennedy, if you received
this from a senior diplomat whose judgment you trust and he
marks unclassified at the top, and the bottom, and four other
times in the body of the document, would you think the document
is unclassified?
Mr. Kennedy. I think the document is unclassified, but,
Congresswoman, if I received a FOIA request and the text
contained foreign government information that had been shared
with us in confidence, I would not wish it releasable to the --
--
Mrs. Maloney. We heard that.
Mr. Kennedy.--to the world. So that's ----
Mrs. Maloney. We heard that.
Mr. Kennedy. That is the underpinning of our discussion,
ma'am.
Mrs. Maloney. We hear that. The chairman hears that. We are
going to work on it. But my point is there is something clearly
wrong with the system where an individual is charged with
criminal activity because they have received a document that is
marked unclassified, unclassified, unclassified and then the
FBI comes in and says, oh, it is classified. So the whole
system of classification in my opinion needs desperately to be
reformed.
And I would say that every member of this panel on the
Republican and Democratic side, if we received this memo, we
would think it is unclassified because that is what it is
stamped. But this was part of what the FBI called classified at
the time, and I see this as something that needs to be
corrected and it needs to be reformed ----
Mr. Kennedy. I--if I could, I fully, fully and absolutely
agree with you, and that is why we have been for years seeking
the ability for a FOIA exemption that would permit us to make
foreign government information exempted ----
Mrs. Maloney. We heard what you have said, but my point
that I am making right now, although that is an important one,
is that this system is fundamentally flawed when an
individual--in this case, Secretary Clinton--received an email
like this one and is accused of criminal activity for relying
on the judgment of an experienced diplomat that is trusted by
the State Department.
Mr. Kennedy. I fully agree with you on that.
Mrs. Maloney. And I feel that that is really outrageous. I
would say it is an abuse of power, it is wrong, and it needs to
be changed. And we are the Government Reform Committee. We
should start working on it right now. Is it explicitly
designated in, let's see, one, two, three, four, five, six
places as unclassified, and now the FBI is saying that is
classified.
Mr. Chairman, I ask unanimous consent to place this
document in the record. I think it is a strong example of a
system that is broken, is not working, is hurting our
government, misleading people, inappropriate, and just plain
wrong. My question is why haven't you reformed this before?
Mr. Kennedy. Because we have been seeking--we've been
seeking for multiple years a statutory change that would give
us the same authorities that the Department of Defense and the
Department of Energy have so this would not have been
classified. It would have been marked exempt from public
release under a new legal ----
Mrs. Maloney. But clearly, right now, it is marked as
classified by the FBI. The ----
Mr. Kennedy. No ----
Mrs. Maloney.--State Department is marking it unclassified.
Mr. Kennedy. No, no, we--the State Department was forced,
was forced to mark this classified in order to preclude public
release to the ----
Mrs. Maloney. But, sir ----
Mr. Kennedy.--entire world.
Mrs. Maloney. Sir, my point is it is marked one, two,
three, four, five, six times as unclassified.
Mr. Kennedy. It's marked ----
Mrs. Maloney. If I was working for Secretary Clinton, I
would have handed her this document and said, Madam Secretary,
it is marked unclassified. See, it is unclassified,
unclassified, unclassified. And now, because of this court,
which needs to be corrected, it is now ``criminal activity.''
Mr. Kennedy. The State Department ----
Mrs. Maloney. There is something terribly wrong with this
system, and I believe that you should have worked in the most
earnest way to have changed this and stopped--I consider this
abuse ----
Mr. Kennedy. I fully agree with you ----
Mrs. Maloney. It is a flawed ----
Mr. Kennedy.--and that is why ----
Mrs. Maloney.--system that ----
Chairman Chaffetz. The gentlewoman's ----
Mrs. Maloney.--that claims that this is ----
Chairman Chaffetz. The gentlewoman's time ----
Mrs. Maloney.--a criminal activity. It is wrong.
Chairman Chaffetz. The gentlewoman's time is expired.
Mr. Kennedy. May I finish my ----
Chairman Chaffetz. Let's move on. You asked for unanimous
consent. Without objection, so ordered. That will be entered
into the record.
Chairman Chaffetz. Let's now recognize the gentleman from
Texas, Mr. Farenthold.
Mr. Farenthold. Thank you very much.
Ambassador Kennedy, Secretary Clinton said she had only had
convenience in mind when choosing to use a personal email
account. Has this been convenient for State to respond to the
FBI?
Mr. Kennedy. I'm sorry. I don't quite understand the
question.
Mr. Farenthold. Okay. Was it convenient--because of
Secretary Clinton's use of a private email account for her
email, she said she used it for convenience. It may have been
her convenience. Was it convenient for the State Department to
comply with the FBI inquiries because she did this?
Mr. Kennedy. Well, we would have had to review her
documents for public release under FOIA whether or not she had
used one server or another server.
Mr. Farenthold. So how did Secretary Clinton's emails from
her private server get delivered to the State Department? Did
she send you a copy of the PDF file? Did she send you--or the
PST files from Outlook? How did they come to the State
Department?
Mr. Kennedy. We received approximately 55,000 pages in hard
copy, sir.
Mr. Farenthold. So the fact that she didn't--they weren't
on any of your servers, they came on hard copy, so you had to
scan them, I guess?
Mr. Kennedy. We have a system that we use for processing
documents. It uploads some ----
Mr. Farenthold. So it certainly would have been a whole lot
more convenient and less expensive for the taxpayer had she
been on the State Department server. Would you agree with that?
Mr. Kennedy. If they had been available to us
electronically, we would not have had to scan, yes, sir.
Mr. Farenthold. And the State Department uses something
called SMART. Can you tell me about the State Messaging Archive
and Retrieval Toolset?
Mr. Kennedy. Yes, sir. SMART is a tool that we had
developed. It was a--it's--was an early attempt to come up with
a system that would make archiving and retrieval easier. It
had--it was something that was never fully adopted because it
has significant flaws to it. That is one of the things that
Ambassador Jacobs and a team that works for me have been
working on to put into place a new system that would replace
SMART because it didn't--it was good but it was not successful.
Mr. Farenthold. But now because Secretary Clinton's emails
were not on SMART, it ended up taking more time, being less
convenient, and was more expensive, is that not ----
Mr. Kennedy. That ----
Mr. Farenthold.--correct?
Mr. Kennedy. No--no, sir. The Executive Secretariat did not
adopt SMART and did not adopt it before Secretary Clinton's
tenure so that the decision of not having her emails--her
emails would not have been on SMART even if they were on our
system because of the ----
Mr. Farenthold. So what ----
Mr. Kennedy.--inadequacies of the SMART system. And that
was not her choice. It was the previous Executive Secretariat.
Mr. Farenthold. All right. So let's go to Ambassador
Jacobs. We have heard lots of testimony today about how much
time and money responding to all these requests have taken. It
seems like coming up with a system to do that efficiently would
be a priority. Where are we in that? I mean, it sounds like you
all's budget has gone up, your production has gone down. I
mean, it seems like we are in a lose-lose position right now.
Ms. Jacobs. Thank you, sir. Thank you for the question.
Thank you for giving me an opportunity to talk a little bit
about some of the changes that we are making that I think are
going to make us much more efficient and effective.
One is the whole email. The use of email is something that
not just the State Department but I think other Federal
agencies have struggled with as to the amount of emails and how
to capture them and store them. We are--we, the State
Department, all Federal agencies are under a mandate issued by
the National Archives and OMB to capture and manage all of our
email traffic by the end of this year, December 31, 2016. To do
that we are--first of all, you heard earlier about the Capstone
approach, which was approved by NARA for capturing all of the
emails ----
Mr. Farenthold. Okay. So, again, I have limited time. Where
are you all in implementing it?
Ms. Jacobs. Okay. So we ----
Mr. Farenthold. Are you going to get there and ----
Ms. Jacobs. We are, sir.
Mr. Farenthold.--when is this going to get better?
Ms. Jacobs. We are, sir. We are going to meet the December
2016 deadline, I'm happy to say. We are capturing all those
emails.
Mr. Farenthold. Okay.
Ms. Jacobs. We're going to capture the emails of other
people, and we're acquiring new technology that will allow us
to search said email.
Mr. Farenthold. All right. And finally, have we learned the
lesson that we are not going to let future Secretaries of State
or high-ranking officials use private email servers? Are we
going to keep them on a government server where we can manage
them?
Ms. Jacobs. Sir, we have taken several measures to make
sure that that happens.
Mr. Farenthold. And do you agree with that, Ambassador
Kennedy?
Mr. Kennedy. Absolutely, sir.
Mr. Farenthold. All right. And I will yield back the
remainder of my time.
Mr. Kennedy. Could I answer one other point that--you are
absolutely correct, sir, that we have managed to squeeze
additional funds and place them in FOIA, including for the--
some of the equipment that Ambassador Jacobs is talking about.
However, as we have been increasing the budget, the demand is
up over 200 percent. We are now receiving 30,000 FOIA--we have
30,000 FOIA requests pending, and just--the number of people
asking for material keeps going up. So we--that's why--that is
another reason why we are very committed to getting this done.
Mr. Farenthold. And it is actually reassuring that that
number is going up. It makes me glad more people are concerned
about how their government operates and the increased
transparency throughout our nation's capital and our government
is a good thing.
Chairman Chaffetz. As the gentleman yields back, I would
point out, though, that in 2008 the State Department was
spending about $400,000 in lawsuits. Now, they are spending
about $4 million in lawsuits. So it is duplicitous to say we
are trying to save--hey, we are trying to open up the openness
and transparency. At the same time, you are in Federal court
fighting, arguing not to release information that is owned by
the public.
Mr. Kennedy. Mr. Chairman ----
Chairman Chaffetz. No, we are going to recognize the
gentleman from Oklahoma, Mr. Russell, now for 5 minutes.
Mr. Russell. Thank you, Mr. Chairman. And thank all four of
you for being here today. We do appreciate your long service to
our country.
Ambassador Kennedy, do you believe that Congress has a
responsibility to hold the government accountable?
Mr. Kennedy. Absolutely.
Mr. Russell. Okay. Do you believe that government agencies
should withhold information from Congress, either classified or
handled secretly in our classified vaults, or unclassified
information that would be handled by our committees?
Mr. Kennedy. I am not in control of special ----
Mr. Russell. But it is important that someone with your
dedicated decades of service, ambassadorial level, you have
handled a lot of classified information so ----
Mr. Kennedy. I am always prepared to share classified
information with Congress, but ----
Mr. Russell. And we appreciate that.
Mr. Kennedy.--I know that under the rules of the House and
Senate, it is House and Senate rules that give the Senate
Select Committee and the House Permanent Select Committee on
Intelligence privileges that are not available to others. And
so I ----
Mr. Russell. Sure.
Mr. Kennedy.--cannot jump over House and Senate rules.
Mr. Russell. And I think we are all in violent agreement on
that, but it is important that those Select Committees have
information.
If what I have read in the vaults regarding Mrs. Clinton's
mishandling of classified information were known to the
American people, as I have been in the vaults to peruse them,
the American public would be absolutely appalled. But we can't
talk about that. Instead of focusing on this mishandling and
its subsequent obfuscation by Mrs. Clinton by members of her
personal staff, the Department of State, and by her attorneys,
we are now seeing a typical play: admit nothing, deny
everything, make counter accusation.
Take the case of Secretary Powell. Listening today, one
would think that he was somehow doing what was just normal for
Secretaries of State in the State Department by not securing
things or not being in a proper closed loop with State
Department communication when reality is General Powell said
the truth is--and I am quoting--``she was using the private
email server a year before I even sent her a memo.'' He also
states in statements that he had no recollection of a dinner
conversation advising her to take such actions to circumvent
anything.
But it does bring up some questions, so let me ask them.
Ambassador Kennedy, did Secretary Powell use a dozen-and-a-half
devices and make nearly all of them disappear and destroy some
with hammers?
Mr. Kennedy. I am--I do not--I'm not aware, sir ----
Mr. Russell. Okay.
Mr. Kennedy.--of Secretary Powell's--what Secretary Powell
did or did not do with his private ----
Mr. Russell. Okay. Did Secretary Powell or his proxies use
bleaching software to eliminate any trace of Federal records on
separate servers after they had been requested?
Mr. Kennedy. I am aware--I'm not aware of Secretary
Powell's practices ----
Mr. Russell. I'm not either. As to classified information,
well, did Secretary Powell keep or provide private servers for
any email communication?
Mr. Kennedy. I do--I know that Secretary Powell ----
Mr. Russell. Not a private email account like Yahoo or AOL.
We are talking private servers.
Mr. Kennedy. I do not see a difference and ----
Mr. Russell. Okay. I don't ----
Mr. Kennedy.--distinction there, sir.
Mr. Russell.--either. I think we are in the same
conclusions.
As to classified information, how is it that the Department
of State's staff, which are very able, and the FBI, which are
also very able, were able to determine what top secret special
access program information was enough so to withhold it from
Congress and yet somehow we are to believe that Mrs. Clinton
was somehow not intelligent enough to discern the difference
between special access program information or not? How is it
that the State Department with all of their experience and the
FBI with all of theirs were somehow better qualified than
someone who had been a United States Senator, someone who had
been, say, a Secretary of State? How is that possible?
Mr. Kennedy. To answer that question, sir, we would have to
be in another forum.
Mr. Russell. And we will, and so we will get to ask it
again.
And let me ask you, in your experience, which I greatly
admire, by the way, sir, administration to administration--I
served decades in the military. I held a top-secret special
compartmentalized classification in the military. I know how to
handle sensitive information. I know you do, too.
Did you ever in your career or experience think it was
appropriate to cut and paste from a classified setting whether
it was marked anything, but to cut and paste from a classified
setting and to paste that information to an unclassified
setting? Would that be a practice that the State Department
under any set of rules would be appropriate?
Mr. Kennedy. It is not, sir, but I have seen in all the
material that I reviewed, no evidence, nor did the inspector
general or the FBI find that the Secretary of State--former
Secretary Clinton did so.
Mr. Russell. Well, then we will have in the classified
setting maybe some further questions to ask.
This is what is exasperating. Since 1814, we the people
empower the government, which we draw our power from the
consent of the governed, to uphold the Constitution of the
United States. I have been doing this since I was 18, now in a
different capacity. We have a responsibility for oversight, and
we must not exasperate the American people. They can see what
is clearly understood, and yet we play these delay games: admit
nothing, deny everything, make counter accusations, put hurdle
after hurdle so that the clock will somehow run out, and we
must provide that information.
And with that, Mr. Chairman, I will yield back.
Mr. Kennedy. And may I respond, sir?
Chairman Chaffetz. No. We have got to keep the pace going
here.
I will now recognize the gentleman from Alabama, Mr.
Palmer.
Mr. Palmer. Thank you, Mr. Chairman.
Ambassador Kennedy, a FOIA requires--and this is according
to the Office of Inspector General--a FOIA requires a response
within 20 days, but the Secretary of State's office on multiple
occasions has taken more than 500 days to respond. While the
average response for Federal agencies across the government for
a simple request is 20.5 days, the State Department's average
is 91 days. For a complex request, the government-wide average
was 119 days. The State Department average is 535 days. What do
you believe is a reasonable amount of time to respond to these
FOIA requests?
Mr. Kennedy. Sir, obviously, we want to go faster, but
Mr. Palmer. Well, what ----
Mr. Kennedy.--there is a significant problem here. We
have--we used to get maybe 10,000 FOIA requests a year. We
are--now this year will have a backlog of 30,000. I have poured
additional resources into it. I--we have gone from some 64
people to 93, and depending on the budget for fiscal year 2017,
I'll push it under--to 118.
Mr. Palmer. Do you prioritize requests? For instance, when
you received a request for producing a calendar, is that a
simple or a complex case? I mean ----
Mr. Kennedy. No--we--in order ----
Mr. Palmer.--how ----
Mr. Kennedy.--to be responsive to the Freedom of
Information Act as we interpret it, we use FIFO, first in,
first out.
Mr. Palmer. So--but ----
Mr. Kennedy. And so ----
Mr. Palmer.--this wouldn't have been--would this have been
a Freedom of Information request for the calendars? If we
request the calendars, would that ----
Mr. Kennedy. No. There ----
Mr. Palmer.--how long would it take you to produce ----
Mr. Kennedy. There are two ----
Mr. Palmer.--the calendar?
Mr. Kennedy. There are two separate strains. There is
congressional document requests and the requests under the
Freedom of Information Act or the Privacy Act. One are public
requests, one are for--from the--from the Congress. And as I
responded earlier to the chairman, we will engage as soon as I
get back this afternoon ----
Mr. Palmer. So ----
Mr. Kennedy.--on the subject. We have ----
Mr. Palmer. How long do you think that will take?
Mr. Kennedy. I have to--I do not--I know we are partially
through the Associated Press request ----
Mr. Palmer. I just asked a ----
Mr. Kennedy.--and ----
Mr. Palmer.--request. If the chairman asks for the
calendars, how long will it take to get the calendars?
Mr. Kennedy. I have to find out how many more have to be
processed.
Mr. Palmer. How many more what?
Mr. Kennedy. Because we at least as a courtesy as part of
the agreement, we mark documents to the Congress about whether
or not their public release would be detrimental to ----
Mr. Palmer. This is just a calendar.
Mr. Kennedy.--national security. If the Secretary of State
was having a meeting--a sensitive meeting with a foreign
government ----
Mr. Palmer. She is not there anymore.
Mr. Kennedy. The existence of that meeting, sir, could be
dispositive of--along the lines of activities that Secretary
Kerry is carrying on. I'm not talking about, sir, to be clear,
withholding information from you, but we have to process it so
that you know what we consider sensitive as opposed to ----
Mr. Palmer. Let me ----
Mr. Kennedy.--classified.
Mr. Palmer.--move to something else. According to the
Inspector General's Office, the State Department has previously
reported that certain records did not exist only to later
report that they actually do. Mr. Finney, it is your
responsibility to ensure that the historical record is
complete. Is that an accurate assessment?
Mr. Finney. Yes, sir, for the Office of the Secretary.
Mr. Palmer. And I believe that you do a good job at that. I
believe that you make a professional and honest effort to do
that. Does it concern you that you don't have all of Secretary
Clinton's records?
Mr. Finney. Sir, it always concerns me as far as making
sure that we're taking care of getting the records for the
Archives for the State Department.
Mr. Palmer. Do you think you have all of her records?
Mr. Finney. Sir, I have all that has been given to us, and
that's what we're processing.
Mr. Palmer. Are you aware that records have not been given
to you?
Mr. Finney. Sir, all I have is what we have been given.
Mr. Palmer. I am asking, though, are you aware that there
are records that have not been given to you?
Mr. Finney. No, sir. All I have is what we've been given.
Mr. Palmer. Are you aware that there is a missing laptop
and an external storage device?
Mr. Finney. No, sir.
Mr. Palmer. Well, there is, and the response that I
believe--that came from the Secretary's office--is this
correct, Mr. Chairman? If this is incorrect, you can correct
me. But they said it was lost in the mail. Now, I would assume
that this laptop contains information that should be in the
record. It was a State Department laptop, State Department
external drive. What I would like to know is if it was lost in
the mail, did anyone make any attempt to file a lost parcel
claim with the post office?
Mr. Finney. Sir, I don't have any information on that at
all.
Mr. Palmer. Well, I would like to find out if--Mr. Kennedy.
Mr. Kennedy. If I might, Mr. Palmer, to the best of my
recollection, piecing your question to my knowledge, is the
laptop in question was not a State Department laptop. It was
not State Department property, and therefore, we don't know--we
don't know what was personal information on it or not. And ----
Mr. Palmer. But that ----
Mr. Kennedy. But also in response to ----
Mr. Palmer. But here is the reason we are here is because
she was using non-State Department software, non-State
Department servers, non-State Department communications
devices, many of which was destroyed. Some of the electronic
documents were bleached so that they are not recoverable. And
you have got a laptop and an external storage device that is
missing they claim is lost in the mail, and I would just like
to know if there was any effort made to recover it because it
fits a pattern. And I can't help but be a little bit skeptical
about what is coming from the State Department and from former
Secretary Clinton about their willingness to provide the
information that has been requested.
Mr. Kennedy. If I might, sir, the FBI has been turning over
additional information that we--they have recovered from
servers, from duplicates. We are in the process now of going
through that material. We are now in the process of the first
disk, which we understand contained about 14,900 pages. So we
are going through that. We are committed to making sure that
the Federal archives are whole, and we will process the 14,900
and then the FBI has given us additional disk material that
they have recovered from backups, and we will do those as well
and then make the records available.
Mr. Palmer. My time is expired, but the last thing that I
want to ask you to do is I would like for you--even though it
was not a State Department laptop and not a State Department
external storage device, I would like for you to do the due
diligence necessary and this--Mr. Finney, if you have a role in
this as well--to try to find out what happened to that laptop
and whether or not there was an effort to recover it from the
post office if, in fact it was actually lost in the mail.
I yield back.
Chairman Chaffetz. I thank the gentleman.
I will now recognize Mr. Carter of Georgia.
Mr. Carter. Thank you, Mr. Chairman, and thank all of you
for being here today.
Mr. Finney, I want to start with you, and I just want to
make sure I understand exactly your title and your role. Your
title is deputy director for Correspondence, Records, and
Staffing Division? Is that correct?
Mr. Finney. That is correct, sir.
Mr. Carter. And you have the responsibility of conducting
and coordinating FOIA searches in response to FOIA requests?
Mr. Finney. That is correct, for the Office of the
Secretary, yes, sir.
Mr. Carter. For the office for the Secretary of State. Mr.
Finney, according to a deposition that was given by Karin Lang
by Judicial Watch, your office was under the belief that then-
Secretary Hillary Clinton didn't use email for work-related
purposes, and your office was not aware of this email use
until, according to sworn testimony, 2013. Is that pretty much
right?
Mr. Finney. I don't know the specific dates, but if that is
what my director said, that is correct, sir.
Mr. Carter. Okay. During Secretary Clinton's tenure as
Secretary of State, did you know if she was using private email
for work-related purposes?
Mr. Finney. No, sir.
Mr. Carter. You did not know that?
Mr. Finney. No, sir.
Mr. Carter. According to the State Department IG report,
there were dozens of people who knew about it. They knew that
Secretary Clinton was using a personal email account and they
knew that she was using a personal server for work, but you
didn't know? And according to your title, it would appear to me
that you should have known. Why do you think they didn't tell
you?
Mr. Finney. Sir, I couldn't give you any information on the
reason why, sir. I just don't have that information.
Mr. Carter. Did you ever ask if Secretary Clinton was using
a personal email?
Mr. Finney. No, sir. The question I asked was when she came
on board and even after we saw the picture on the news was does
she have a State.gov account? And when they told me she did
not, that's where it stopped, sir.
Mr. Carter. So what does it mean that she doesn't have a
State.gov account?
Mr. Finney. When she doesn't have a State.gov account,
basically we're just looking at as far as the accounts that'll
be able to do emails that are assigned to the actual S/ES-IRM,
which is our information resource management shop who creates
those accounts.
Mr. Carter. Did that concern you, the fact that she didn't
have one?
Mr. Finney. No, sir, and the reason why is because when I
asked a question and I said--and I was told that not only that
she did not have a State.gov account but her prior Secretary
did not have a State.gov account as well as the previous one as
well. So you're looking at Secretary Rice, Secretary Powell,
and Secretary Clinton did not have a State.gov account. So when
they told me ----
Mr. Carter. Okay.
Mr. Finney.--that, that's when I said okay. I understand.
Mr. Carter. Okay. It has been established that obviously
Secretary Clinton was using a personal email account to conduct
official business. Did you know this?
Mr. Finney. No, sir.
Mr. Carter. Did anyone else know it?
Mr. Finney. I can't answer that question, sir. I only know
what I know and I didn't know.
Mr. Carter. The fact that she was using that personal
email, should you have known it? Should you have been made
aware by your superiors?
Mr. Finney. Can I refer that to our director?
Mr. Carter. No.
Mr. Finney. Okay.
Mr. Carter. I want to know from you. I want to know in your
position that you accepted, did you feel like you should have
known?
Mr. Finney. If she's using a State.gov account or a Gmail
account?
Mr. Carter. A Gmail account.
Mr. Finney. Okay. I would say what we do today and is
standard is basically as we brief folks as we do today based on
the Federal Records Act of 2014, if you're using your personal
device, you're required by law to make sure that it's sent to
your State.gov account, and that's what we would share.
Mr. Carter. So you do believe that you should have known.
And you are the deputy director for Correspondence, Records,
and Staffing Division. When FOIA requests come in, it is your
responsibility. You should have known that, correct?
Mr. Finney. What I'm supposed to be known is making sure
that I've captured all the records for the Secretary. So again,
when I conduct our briefing with the agency records officer,
we're making sure that we get all the records. So that's where
we stand.
Mr. Carter. So you--and in order to fulfill your
responsibilities, you would have had to have known, isn't that
correct?
Now, Ms. Lang, I am asking Mr. Finney. Isn't that the way
you understand your responsibility?
Mr. Finney. To fulfill my responsibilities, I'm responsible
for making sure that I get the records for the Office of the
Secretary, and so that's one of the things when we brief we're
making sure that we get those records, sir.
Mr. Carter. Okay. Mr. Finney, it is obvious to me that you
take great pride in your work, and I think you are an exemplary
public servant, but it has got to concern you that you weren't
given all the tools to perform your responsibility. It would me
if I weren't given all my tools that I needed to perform my
responsibility. Does that concern you at all? Do you feel like
they were hiding something from you?
Mr. Finney. Sir, all I can say is this, is that what my job
is to make sure I collect all those records, and so when I was
going to process ----
Mr. Carter. But in order to do that job, you have got to
know and you didn't know because they didn't tell you even
though they did know.
Mr. Finney. Again, I can state what other folks know. I can
only tell you what I knew, and I didn't know that. So again,
it's me going forth doing my job. My job ----
Mr. Carter. Okay. And one last question, okay, Mr. Finney.
Do you think that they purposefully didn't tell you?
Mr. Finney. No, sir.
Mr. Carter. You don't?
Mr. Finney. No, sir.
Mr. Carter. You know, it is just bothersome to me that you
in this responsibility as being deputy director for
Correspondence, Records, and Staffing and having the
responsibility of filling FOIA requests, yet you didn't know.
How can you perform your responsibility? And yet others did
know, and they knew that that was your responsibility.
Mr. Finney. Again, sir, I can't tell you what they knew. I
only can tell you what I knew, and when they knew about that, I
couldn't ----
Mr. Carter. Okay. Mr. Chairman, I have run out of time.
Thank you again, Mr. Finney for your service.
Chairman Chaffetz. I thank the gentleman.
I will now recognize the gentleman from Wisconsin, Mr.
Grothman, for 5 minutes.
Mr. Grothman. Sure, a couple questions for Mr. Kennedy
there. Did you ever have a chance to talk ----
Chairman Chaffetz. Your mic ----
Mr. Grothman. Did you ever have a chance to talk to
Secretary Clinton about Freedom of Information requests
regarding other things? Did this ever come up at all during
your tenure?
Mr. Kennedy. No, sir, nor did it come up under Secretary
Rice's tenure or when I was executive director of the
Secretariat for Secretaries Baker and Shultz. This is handled
by a special office who is led by very competent people.
Mr. Grothman. Never talked about?
Mr. Kennedy. No, sir.
Mr. Grothman. Did you ever meet Ms. Clinton?
Mr. Kennedy. Every morning, sir, when she was in town.
Mr. Grothman. So all those times and there was never some
other Freedom of Information request that you felt was
interesting enough that it should even be mentioned?
Mr. Kennedy. Sir, I did not handle daily Freedom of
Information Act requests. We have very, very professional
staffs who do that. I responded--I received Freedom of
Information Act requests that were brought to me about records
I might have. I responded to them.
Mr. Grothman. Okay. Any one of the other three of you, be
it Secretary Clinton or Secretary Kerry, have any discussion at
all with regard to Freedom of Information requests?
Mr. Kennedy. I--we certainly have had a number of them of
general subjects ----
Mr. Grothman. Not you, I mean the other three. You said you
have never talked about it.
Mr. Kennedy. You added Secretary Kerry, and I so I was ----
Mr. Grothman. The other three of you?
Ms. Jacobs. Sir, I did have a conversation with Secretary
Kerry about records preservation and FOIA processing when I was
asked to do this job and certainly can tell you that he has a
great interest in looking into our procedures and practices to
try to improve them ----
Mr. Grothman. Any of the other--and I am not sure. How long
were the others of you in your current office when Ms. Clinton
was Secretary of State or in the Department?
Ms. Lang. I was in the Department, sir, but I was not in my
current position when Secretary Clinton was in office.
Mr. Grothman. Did you ever have any interactions with her
about Freedom of Information requests?
Ms. Lang. No, sir.
Mr. Grothman. Okay. Mr. Finney?
Mr. Finney. No, sir.
Mr. Grothman. Okay. In Ms. Lang's--this is for Mr. Kennedy
again. In Ms. Lang's deposition, she states ``The only way that
State would have known if Secretary Clinton turned over her
emails in response to their request would be their statements
on the topic.'' Is that true? You are kind of just at the mercy
of her own statements as to whether everything was turned over?
Mr. Kennedy. For--currently, sir, there's three kinds of
records in the State Department. There are what we call paper
records, memorandums. There are telegraphic records and there
are email records. The telegraphic records and the paper
records are maintained centrally, and that is what we are doing
now, as Ambassador Jacobs has outlined, both with the Capstone
program and the other new program we're going to have in place
by December 31. We will have all records captured.
Mr. Grothman. Okay. Well, obviously, you don't know if you
have all records captured because a lot of these records were
destroyed, correct?
Mr. Kennedy. I'm talking about--I thought your question was
about the present time. By putting this system in, you will not
be ----
Mr. Grothman. The question ----
Mr. Kennedy. You will not be able to destroy an email
record because the--it goes to your machine and it goes to a
central repository and it's--and you cannot ----
Mr. Grothman. It was ----
Mr. Kennedy.--extract it.
Mr. Grothman. There was nothing at the time, though,
nothing in place to make sure that these records were
maintained at the time Secretary Clinton was Secretary?
Mr. Kennedy. Prior to 2014 and the change of the Federal
Records Act and the new NARA standards, that was not a
requirement then. But we--as I said, if I might quickly, sir, I
know your time is ----
Mr. Grothman. Sure.
Mr. Kennedy. The--there--we have not ever talked in this
hearing today about there are really two major sources of
records in the State Department. That ----
Mr. Grothman. Well ----
Mr. Kennedy.--the memorandum records and the telegraphic
records, those are centrally archived and they are always
locked in ----
Mr. Grothman. Well ----
Mr. Kennedy.--locked down.
Mr. Grothman. I think given, you know, our concerns, our
special concerns with regard to Secretary Clinton, I think the
most important records are the records that show correspondence
with her and people outside the building or outside the
Department, right? And ----
Mr. Kennedy. Many of those, sir, are in our telegraphic and
our paper archives. And I say paper archives ----
Mr. Grothman. I ----
Mr. Kennedy.--they're electronically maintained.
Mr. Grothman. I mean the emails that ----
Mr. Kennedy. Oh.
Mr. Grothman.--she would have had going back and forth with
people outside the building.
Mr. Grothman. There is no question, sir, that we needed to
improve our records maintenance. We're now up to 1 billion, 1
billion ----
Mr. Grothman. Okay.
Mr. Kennedy.--emails per year, and that is a huge challenge
and we are meeting it.
Mr. Grothman. I will give you one more question, and--it
would seem to me that some FOIA requests are more important
than others. I don't mean to say that but it is just true. And
obviously when it deals with the Secretary themselves and
particularly a Secretary who, it turns out, had such huge
financial dealings or financial dealings that concern her and
her immediately family, don't you feel that maybe in responding
to these requests you ought to make sure that requests directly
affecting the Secretary should bubble to the top?
Mr. Kennedy. That is very hard to do, sir, when, per
statute, I have to respond to every single FOIA request within
20 days. And so in order to avoid more lawsuits, we treat these
things as first in and first out, and then we're at least able
to assert to the courts that we are trying to move through this
in a logical and measured progression.
Mr. Grothman. Thank you.
Chairman Chaffetz. Thank you. We are almost done, so I have
just a few more questions.
Ambassador Kennedy, when was the first time you knew that
Secretary Clinton used a personal email address?
Mr. Kennedy. I think that ----
Chairman Chaffetz. Your microphone, please.
Mr. Kennedy. That came very, very late in the process, Mr.
Chairman. I think it came to me probably in 2014.
Chairman Chaffetz. The State Department inspector general
report says that in August of 2011 you discussed in an email
with Cheryl Mills and others that the Secretary's BlackBerry
wasn't functioning ``possibly because her personal email server
is down.'' Does that raise any red flags for you?
Mr. Kennedy. None whatsoever. I knew that Secretary Clinton
had a BlackBerry. In fact, I had been asked. She - they had
asked about personal BlackBerrys and she--I was told that she
had a personal BlackBerry for keeping in touch with her family.
So I was aware she had a personal BlackBerry.
Chairman Chaffetz. What about a personal email server?
Mr. Kennedy. I--that--if I remember the exact email you're
referring to, Mr. Chairman, that was a--that was in there but
the main reason I was on that was regarding a failure of the--
her telephone system. I had been working on the telephone
system, and this email came back talking about the telephone
system and something about the server. And I admittedly never
focused on that because I was desperately working to make sure
that her classified and unclassified phone systems were
restored.
Chairman Chaffetz. You received emails from her personal
account.
Mr. Kennedy. Sure.
Chairman Chaffetz. You never noticed that during her entire
tenure that she was in the State?
Mr. Kennedy. I received over a 4-year period, you know, a
few--a few--there were a few dozen exchanges with Secretary.
That was a very, very small number. And since I had never
received an email from Secretary Albright, Secretary ----
Chairman Chaffetz. I am not talking about anybody but
Secretary Clinton ----
Mr. Kennedy. I ----
Chairman Chaffetz.--at this moment.
Mr. Kennedy. But for context, Mr. Chairman, receiving a few
emails, many of them related to things that she was asked at a
cocktail party or asked on a weekend, including how to--who can
I put someone in contact with ----
Chairman Chaffetz. Okay. So let's go ----
Mr. Kennedy.--for consular services, it did not strike me
as abnormal to get an email from the Secretary of State in the
evening or on a weekend from her personal BlackBerry.
Chairman Chaffetz. From her personal email or personal
BlackBerry?
Mr. Kennedy. I knew she had a BlackBerry.
Chairman Chaffetz. I asked about her email.
Mr. Kennedy. The BlackBerry, she would--that's how she sent
emails ----
Chairman Chaffetz. I understand that's ----
Mr. Kennedy.--on her BlackBerry.
Chairman Chaffetz.--the device. I am talking about the
email and the email address. This is a .com.
Mr. Kennedy. That's--that comes on a BlackBerry, sir, too.
You can get ----
Chairman Chaffetz. No, but you are ----
Mr. Kennedy.--.com on a BlackBerry.
Chairman Chaffetz. I want to be precise here. You can have
a BlackBerry that had a .gov account.
Mr. Kennedy. And you can have a BlackBerry that has a .com
or a .org or a .edu, sir.
Chairman Chaffetz. Yes. And so the question I am asking you
isn't about the BlackBerry, even though that was problematic. I
am asking you about her--you sending and receiving emails,
interacting with the Secretary of State on official business--I
have one here, for instance, from December 22 from
[email protected] to you and a couple others. I mean, I
have got chock full of examples where you are going back and
forth on official business, her using a .com and you never
noticed that?
Mr. Kennedy. No, I didn't say that, Mr. Chairman, at all. I
said ----
Chairman Chaffetz. You said you were first aware ----
Mr. Kennedy.--over the ----
Chairman Chaffetz.--in 2014. She had already left office.
Mr. Kennedy. When she had a personal email server.
Chairman Chaffetz. There are servers, there are devices and
there is email. I am talking about her email address.
Mr. Kennedy. As I said ----
Chairman Chaffetz. Don't conflate them.
Mr. Kennedy. As I said a minute ago, Mr. Chairman, I said
that I had probably three dozen exchanges with the Secretary
over 48 months that were with a personal. I have admitted to
that.
Chairman Chaffetz. Her personal what?
Mr. Kennedy. Her personal email address, her personal
BlackBerry.
Chairman Chaffetz. And that didn't raise any flags? You
never noticed that?
Mr. Kennedy. I admitted I noticed it, but I did not find it
consequential, the small number of emails over 48 months when I
never received any emails--if I had gotten hundreds and
hundreds of emails from her, I would have taken notice ----
Chairman Chaffetz. So what is the threshold where you raise
the flag? Don't you know that on official business you are not
supposed to be using a .com address?
Mr. Kennedy. That--the rules in place during Secretary's
tenure is that you could either print off a copy of it or you
could send it to your personal storage device somewhere. And so
she was--I had no reason to know that these were not being
recorded somewhere. I had no reason to know.
Chairman Chaffetz. I think you did. I think this is one of
the big errors in all this is because nobody spoke up and said
anything. In fact, let me go back. There were some people that
spoke up and said this. There were some people that questioned
it and they were told not to question it again. And that is in
the record.
My time is short here. Let me ask you, Ambassador. Monica
Hanley, explain to me the role that--Monica Hanley's role
played with Secretary Clinton?
Mr. Kennedy. Monica Hanley was part of--sort of a cross
between scheduling and advance, worked on the Secretary's
travel and moved with her when she went to events outside the
building.
Chairman Chaffetz. She was a personal assistant to the
Secretary?
Mr. Kennedy. A variety of responsibilities.
Chairman Chaffetz. Does she still work at the State
Department?
Mr. Kennedy. No, sir, she does not.
Chairman Chaffetz. Do you recall when she left the State
Department?
Mr. Kennedy. When Secretary Clinton left. She was a non-
career employee.
Chairman Chaffetz. And let me ask you, switching gears
here, is it legal or illegal to share classified information
with somebody who does not have a security clearance?
Mr. Kennedy. It is inappropriate, I believe. It may be
illegal as well. I am not a lawyer.
Chairman Chaffetz. Would it concern you that if somebody
had access to classified information who did not have a proper
security clearance?
Mr. Kennedy. Yes.
Chairman Chaffetz. Did Monica Hanley lose her security
clearance when she left the employment of the State Department?
Mr. Kennedy. Yes.
Chairman Chaffetz. Is that the regular routine? When people
leave the employment of the State Department, they should lose
their security clearances?
Mr. Kennedy. They don't--if I could say, sir, the security
clearances are not lost.
Chairman Chaffetz. They don't have them anymore?
Mr. Kennedy. They no longer have one.
Chairman Chaffetz. Fair enough. Fair enough.
Mr. Kennedy. A loss is ----
Chairman Chaffetz. Yes.
Mr. Kennedy.--an administrative action.
Chairman Chaffetz. Agreed.
Mr. Kennedy. Termination of your employment terminates your
access to classified information with some exceptions.
Chairman Chaffetz. Do you recall what level of clearance
Monica Hanley had while she was at the State Department?
Mr. Kennedy. Top secret, sir.
Chairman Chaffetz. Could you provide to this committee the
time that she had the security clearance and when she--her
security clearance was taken away? Is that fair?
Mr. Kennedy. Her security clearance was never taken away.
It ended with her employment.
Chairman Chaffetz. Sorry, security--and the time that her
security clearance ended.
Mr. Kennedy. I can--we can provide that.
Chairman Chaffetz. I would just like to know what level of
security clearance that she had along the way.
Did the State Department have any official relationship
with the Clinton Foundation?
Mr. Kennedy. Official--I don't believe it--I would have to
check, and I would have to--I don't think it had an official
relationship. We don't usually have official relationships with
foundations. We deal extensively with huge numbers of
charitable foundations, though ----
Chairman Chaffetz. But there ----
Mr. Kennedy.--extensively.
Chairman Chaffetz. There is no relationship in your
understanding between the Clinton Foundation and the State
Department to provide services or products or personnel for the
Secretary to do her official business while at the State
Department?
Mr. Kennedy. I am not aware of any.
Chairman Chaffetz. Okay. Let me now yield and--or recognize
the ranking member, Mr. Cummings.
Mr. Cummings. What would be the--just following up on the
chairman's questions. You said that there are exceptions when a
person is no longer employed at State that they would maintain,
I guess, their ----
Mr. Kennedy. We ----
Mr. Cummings. What kind of exemptions are there?
Mr. Kennedy. There is a Presidential Executive order that
permits former Presidential appointees to retain a security
clearance for the purposes of reviewing materials that they
saw, generated, or handled during the--only during their
tenure. So I was trying to be very precise ----
Mr. Cummings. Yes, well, thank you.
Mr. Kennedy.--in response to the chairman's question.
Mr. Cummings. You know, one of the things that is
interesting about all of this is that there seems to be a
belief by many on this committee that there has been
intentional stalling, if not obstruction with regard to
providing documents. Can you talk about that, Mr. Kennedy?
Because, you know, I listened to you carefully and you talk
about--I am not accusing you of that, but you talk about all
the documents, all the emails you have to deal with. You
ratcheted up your budget, transferred money so you could deal
with more. You talked about the priorities. You talked about
the FOIA 20-day rule. Talk about that, too, because I don't
want the American people--I want you to have an opportunity to
say how you feel about your office, your employees, and what
you are trying to do. I don't want that just hanging out there.
Mr. Kennedy. Certainly. Thank you very much, sir. Look, we
take our FOIA responsibilities very seriously. We're very, very
pleased in 2013, for example, where we managed to close more
cases than we received. In 2014, then we almost did the same
thing. We got in 20,000 cases and closed 18,000. In 2015,
though, the curve just started to take off. We got 24,837
requests, which was up 5,000 from the year before, 6,000 from
the year before that, up 10,000 from 3 years before that.
The volume of FOIA requests they're receiving are growing
exponentially. We have put additional resources into it, but
the--it keeps growing. The State Department's operating budget
during that same period--and we get great support from the
Committees of Appropriations, but they operate under caps. So
the State Department's operating budget is down 25 percent in
constant dollar terms from 5 years ago. The workload is up
maybe 300 percent.
And so we keep putting resources into it, but I cannot yet
find a way to keep up. That's why I have teams working with
Ambassador Jacobs, new technologies, more personnel. We have an
obligation under the law and I believe to the American people,
as I believe was Mr. Russell talked about. We believe that this
is our responsibility. We are carrying it out to the maximum
extent possible. But with these many documents under request--
and then one last thing if I might say, Mr. Ranking Member, is
that a request to a government agency that does not handle
classified information, does not operate in 275 locations
around the world with multiple bureaus and responsibilities,
that's an easy, easy push.
I believe it was Mr. Grothman's question about, you know--
I'm sorry, it was Mr. Palmer's question about timing. They can
churn those out very quickly. We get very, very complex
national security document requests, and that--those materials
contain our material, references to other agencies. We have to
coordinate with the intelligence community, with the Defense
Department, potentially the Department of Energy, the
Department of Justice, Department of Homeland Security. It
simply takes a long time to do those. And then we breach the
20-day rule, and then we get sued, which, as the chairman
points out, causes us even more--I can--I will never, I don't
think--and I hate to admit that because I don't like to admit
failure--ever be--think we'll be able to admit that we're going
to be able to turn out complex documents ----
Mr. Cummings. It's not because you don't want to ----
Mr. Kennedy.--in 20 days.
Mr. Cummings.--or you're trying to obstruct or ----
Mr. Kennedy. No, sir, absolutely not. We have put more and
more people, as I mentioned. We were working with 64 people,
pushed it to 81, then to 93. Depending on the budget for fiscal
year 2017, we pushed up to 118. And we're deploying new
technologies and additional, better training for our personnel.
When we can automate this process better, especially on the
emails, as I mentioned to the chairman a few minutes ago, our
telegraphic records and our memorandum records are much more
easily searchable because they are already--they're in a
searchable format.
Mr. Cummings. I'm almost ----
Mr. Kennedy. The emails need a lot of work, and that is
what Ambassador Jacobs is directing.
Mr. Cummings. You know, I was sitting here listening to you
and I was trying to figure out what makes you guys happy. In
other words, when do you say, boy, we really did a great thing,
let's go out and have a beer and celebrate ----
Mr. Kennedy. I'll ----
Mr. Cummings.--because it doesn't sound like sexy work, by
the way.
Mr. Kennedy. Well, I take incredible pride in the
competence and the dedication. In order to get those 55--53,000
pages of Secretary Clinton's records out, we had people
working, you know, 10, 12 hours a day, 7 days a week, you know,
impinging on holidays.
We have an obligation to the American people. We will do
everything we can to meet it, but there are certain structural,
mechanical, software limitations that we're facing.
There's also the colloquy that I had with Congresswoman
Norton about our requirement to protect foreign government
information, but yet I don't have the exemption that the
Department of Defense, the Department of Energy has. That means
we have to classify every one of those documents. That is a
specific and time-consuming action, yet if you just marked it
with the correct B designation for foreign government
information, I think that would take a huge burden off the
State Department in terms of responding to routine requests
because we have to deal with them as they come in. But it would
also take away the misimpression that, oh my God, there were
2,000 emails that were classified confidential, and it's really
about somewhere between 60, 70 percent of them were classified
confidential only because that was the only way that I have
under current statute to protect foreign government
information, unlike the Departments of Energy and Department of
Defense.
Mr. Cummings. Let me just close up. First of all, thank you
for your response. And although I said it jokingly about sexy
work, I really--I said it to emphasize that we are grateful for
what you all do. I know sometimes you think it is thankless and
you hear a lot of complaints, but we do appreciate it.
Mr. Kennedy. No, it's an honor, sir, to serve.
Mr. Cummings. Mr. Chairman, I just wanted to close by
pointing out that we have heard today about a broken and a
flawed classification system, and I think if we don't do
anything else, we can try to help with the system of
classification because it is so serious and can create all
kinds of problems. And I am looking forward to working with you
in an effort to try to address these issues as best we can.
And with that, I want to thank you all.
Chairman Chaffetz. I thank the ranking member.
I do think we need to work collaboratively on not only the
classification process but also security clearances because, my
goodness, you have millions of people with security clearances.
And I still hearken back to what Senator Patrick Moynihan
spearheaded some 20, 25 years ago--I can't remember the date--
but when he basically issued a report, a good bipartisan report
that said ``When everything is classified, nothing is
classified. When everybody has a security clearance, nobody has
a security clearance.'' So I do think that is a long-term
project that I would love this committee to engage in.
I need to ask one last thing because it does impact the
four of you that are sitting here. You have this trove; it is
by the tens of thousands. You look at these Federal records
that are now suddenly dumped on your lap that you didn't know
were there, and then you also look at all the requests,
congressional requests, subpoenas, FOIA requests. Media
requests sometimes come in as FOIA, sometimes don't.
How do you take those four sets of requests and cross
reference it with probably information from Secretary Clinton's
Federal records that should have been included? Is the idea
that you are just going to throw them all up on the Internet
and everybody is going to have to go hunt and peck through the
55,000, or are you going to go back to a subpoena and say, all
right, that was actually not as responsive as it probably could
have been? This FOIA request was incomplete because it should
have included this particular email or her calendar, whatever
it might be. How do you take this set of the 55,000--or the
pages and now it is tens of thousands more than that. How do
you do that and cross reference it with the thousands of
requests that had been peppered into the State Department over
the last--you know, since 2009?
Mr. Kennedy. I think there are two ways to do that, Mr.
Chairman. We could go back and go through every single previous
FOIA request, and that I think would grind to a halt the
requests and the efforts we're making now.
I believe the right solution is what we are doing. We are
putting all of the emails up on our searchable Web site. So if
you ask about Xanadu and we told you we didn't have any
records, you could go to this--a special portion of our Web
site which has all of the 53,000 Clinton records and you could
put in Xanadu and it would find Xanadu for you.
Chairman Chaffetz. You are not talking about the album from
back in the '70s, are you? I am just teasing. Keep going, yes.
Mr. Kennedy. Xanadu is my favorite country ----
Chairman Chaffetz. Okay.
Mr. Kennedy.--because it's not a country and I can use it
as an example without ever offending anyone.
Chairman Chaffetz. I thought you were a big music fan of a
particular artist from the '70s.
Mr. Kennedy. No, I get ----
Chairman Chaffetz. It is okay. Keep going.
Mr. Kennedy.--Shangri La.
Chairman Chaffetz. Yes.
Mr. Kennedy. I think that that is the way for us to best be
good stewards of the taxpayers' dollars but also be most and
quickest responders to the American people.
Chairman Chaffetz. So why not just do that all the time?
Forget about FOIA. Forget about subpoenas. If you get stuff,
oh, we will just put it on the Internet.
Mr. Kennedy. Because ----
Chairman Chaffetz. Good luck.
Mr. Kennedy. Because there is foreign government
information, Privacy Act information, National Security Act
information in the material, and ----
Chairman Chaffetz. So you have no plans to go back and
redo--what about subpoenas?
Mr. Kennedy. If someone--we respond to subpoenas. We work
very, very closely ----
Chairman Chaffetz. No, but if you responded to a subpoena,
and I don't have an exact one case and it came across in 2011
and you just got the record here in 2016, are you going to go
back and look at that subpoena?
Mr. Kennedy. We would--for subpoenas, which we would
consult with the Department of Justice about what we needed to
do ----
Chairman Chaffetz. Okay.
Mr. Kennedy.--to be in compliance with the court ----
Chairman Chaffetz. I think I can ----
Mr. Kennedy.--or the Congress.
Chairman Chaffetz. Okay. So that is what I am saying. There
is this universe of sort of four areas ----
Mr. Kennedy. Yes.
Chairman Chaffetz.--four buckets, and I hope I am not
missing one, but you have FOIA requests, you have subpoenas,
you have congressional inquiries, and you finally have media
requests, which come in a variety of different formats. So I
would appreciate--what is your game plan to deal with this--you
didn't ask for this, but this is the consequence of Hillary
Clinton's convenience was is you have to deal with it.
So what are you going to do? How are you going to
prioritize it? And what is the expectation? If somebody has a
subpoena--if a company or an individual or an attorney or
whatever it is, there is a subpoena out there, will you be
going back and cross referencing that ----
Mr. Kennedy. Let me take ----
Chairman Chaffetz.--for each of those four? And I am not
expecting you to do it off the cuff.
Mr. Kennedy. No.
Chairman Chaffetz. I would just appreciate if the State
Department would say this is how we are going to deal with it.
And if it is not those four buckets, tell me what it is, but at
least off the top of my head, that is what ----
Mr. Kennedy. Well ----
Chairman Chaffetz. All I am asking for here is a game plan
to deal with that. I don't think it is good enough to just say
we are throwing everything up on the Internet and everybody,
good luck.
Mr. Kennedy. That was in response, Mr. Chairman ----
Chairman Chaffetz. And the FOIAs ----
Mr. Kennedy.--to your ----
Chairman Chaffetz.--is so--yes.
Mr. Kennedy. We will review congressional document requests
as we continually review them. As you know, Mr. Chairman, we
have sent you 186,000 pages, and if it has to be 187,000 or
197,000, we are--we will work with you, as we talked about when
I met in your office. For subpoenas, we will talk with the
Department of Justice to see what steps we may have to take and
have our lawyers work on that. For the media, I leave the media
to take care of themselves.
Chairman Chaffetz. They will be so glad to hear that. But
if there was a media request ----
Mr. Kennedy. The media request would be a FOIA request, and
therefore, we would--we have ----
Chairman Chaffetz. Okay.
Mr. Kennedy.--made it very clear to the media ----
Chairman Chaffetz. At least for those four just what is a
reasonable time that you are going to get the committee a game
plan on how you are going to deal with this?
Mr. Kennedy. It will--given the--that the legal question
about subpoenas is a complex one, I think it'll have to be a
couple of weeks because we have to ----
Chairman Chaffetz. End of the month, is that fair, today's
date?
Mr. Kennedy. I can certainly try, but I have to talk to my
legal advisor and I have to talk to ----
Chairman Chaffetz. Okay. We are going to start ----
Mr. Kennedy.--the Department of Justice ----
Chairman Chaffetz.--waving the red flag saying, hey, you
are not being responsive if I don't hear from you by the end of
the month. Fair enough?
Mr. Kennedy. When I have to go outside the State
Department, I make no guarantees, Mr. Chairman.
Chairman Chaffetz. What do you mean outside the State
Department?
Mr. Kennedy. Talk to the Department of Justice, that's
outside the State Department. They're not under my control.
Chairman Chaffetz. I just need a good-faith effort because
I think you have thousands of people waiting and wondering how
this affects these four categories from subpoenas,
congressional, Members of Congress, all that.
Mr. Kennedy. But ----
Chairman Chaffetz. That is all I am asking.
Mr. Kennedy.--on FOIA ----
Chairman Chaffetz. I think you get it, okay? I just need
you responsive and I need a game plan, and I understand the
need to interact at the Department of Justice.
I appreciate the work that you and so many people do at the
State Department. We appreciate your attendance here today. And
the committee stands adjourned.
[Whereupon, at 1:13 p.m., the committee was adjourned.]
APPENDIX
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