Judicial Watch: Federal Court Orders Hearing on Preserving Key Homeland Security Official Emails

‘If the agency officials are permitted to leave their employment while retaining agency records in their personal email accounts, it risks creating a situation comparable to that of former Secretary of State Hillary Clinton.’

Hearing Thursday, January 5

(Washington DC) – Judicial Watch today announced a federal court hearing will be held Thursday, January 5, 2017, regarding Judicial Watch’s request that the Department of Homeland Security preserve the emails of Secretary Jeh Johnson and other top officials who used personal email accounts for government business.  Judicial Watch had filed a Freedom of Information Act (FOIA) lawsuit seeking agency records in the personal email accounts used by Department of Homeland Security Secretary Jeh Johnson, Deputy Secretary Alejandro Mayorkas, Chief of Staff Christian Marrone, and General Counsel Stevan Bunnell to conduct official government business (Judicial Watch v U.S. Department of Homeland Security (No. 1:16-cv-00967)).  The lawsuit already uncovered documents showing that Johnson and other top DHS officials were exempted from a strict ban placed on web-based personal email accounts despite heightened security concerns.

The order for the hearing follows a Motion for Preservation Order filed by Judicial Watch on December 22. In that filing Judicial Watch asked the court to issue a preservation order for the non-.gov emails of Johnson, Mayorkas and Bunnell because their departure from government service is anticipated upon the installation of the new administration and Homeland Security will no longer have any control over these individuals:

The records at issue are in the physical possession of three current agency officials and one former agency official. With the upcoming change in administrations on January 20, 2017, it is likely that the three officials currently in office (Secretary Jeh Johnson, Deputy Secretary Alejandro Mayorkas, and General Counsel Stevan Bunnell) will leave government service.

Counsel for DHS has informed [Judicial Watch’s] counsel that DHS has “asked” these officials to preserve the agency records in their possession. DHS’ counsel declined to provide any evidence supporting this assertion. Because [Judicial Watch] does not know specifically what DHS asked its employees to do and what, if any, other steps DHS has taken to ensure preservation, Plaintiff is concerned DHS’s mere requests to its employees are insufficient. This will be particularly concerning once the officials possessing the emails leave government employment, as the agency will have no control over the actions of these officials.

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A court order requiring preservation of these emails is particularly necessary now as DHS has suggested that these officials may have been acting without authorization by sending emails from these accounts…. As such, there is no assurance that these officials will abide by a “request” by the agency to preserve these emails, particularly after their employment ends.

An order requiring DHS to take steps to preserve the agency records at issue is consistent with an agency’s recordkeeping responsibilities to retain and manage government records subject to the Federal Records Act….If the agency officials are permitted to leave their employment while retaining agency records in their personal email accounts, it risks creating a situation comparable to that of former Secretary of State Hillary Clinton. In that instance, it is undisputed that only a portion of Secretary Clinton’s emails eventually were returned to the agency.

[Judicial Watch] respectfully requests expedited consideration of this motion in light of the likely imminent departure from government service of the three agency officials possessing agency records in their personal email accounts.

In response, Judge Randolph D. Moss set a hearing regarding the preservation of the Homeland Security emails:

MINUTE ORDER: The parties are hereby ORDERED to appear for a status conference on January 5, 2017, at 2:00 p.m., to discuss the pending Motion for Preservation Order…. Signed by Judge Randolph D. Moss on 12/27/2016.

Date:               Thursday, January 5, 2017

Time:              2 p.m. ET

Location:        Courtroom 21

U.S. District Court for the District of Columbia

333 Constitution Ave NW

Washington, DC 20001

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