Earlier this year, Gawker Media sued the State Department over its response to a Freedom of Information Act request we filed in 2013, in which we sought emails exchanged between reporters at 33 news outlets and Philippe Reines, the former deputy assistant secretary of state and aggressive defender of Hillary Clinton. Over two years ago, the department claimed that “no records responsive to your request were located”—a baffling assertion, given Reines’ well-documented correspondence with journalists. Late last week, however, the State Department came up with a very different answer: It had located an estimated 17,000 emails responsive to Gawker’s request.
On August 13, lawyers for the U.S. Attorney General submitted a court-ordered status report to the U.S. District Court of the District of Columbia in which it disclosed that State employees had somehow discovered “5.5 gigabytes of data containing 81,159 emails of varying length” that were sent or received by Reines during his government tenure. Of those emails, the attorneys added, “an estimated 17,855” were likely responsive to Gawker’s request:
The Department has conducted its preliminary review of the potentially responsive electronic documents in its possession, custody, and control from Mr. Reines’ state.gov email account (as opposed to records it received from his personal email account). The assemblage comprises approximately 5.5 gigabytes of data containing 81,159 emails of varying length. Based on a review of a portion of these emails, the Department estimates that 22% of the 81,159 emails may be responsive. Therefore, the Department believes that it will need to conduct a line- by-line review of an estimated 17,855 emails for applicable FOIA exemptions. Moreover, some of the responsive records may need to be referred to other agencies for consultation or processing.
It is not clear how the State Department managed to locate this tranche of Reines’ correspondence when it had previously asserted that the emails simply didn’t exist. These newly discovered records are from Reines’ government account, and are not related to the 20 boxes of government-business emails stored on his personal account that Reines recently handed over to the government, despite his prior claims to Gawker that his official use of non-governmental email was limited: “My personal email was the last place I wanted reporters intruding.”
Considering the number of potentially responsive emails contained in Reines’ State.gov email account, it’s hard to see the agency’s initial denial as anything other than willful incompetence—if not the conscious effort, or the result of someone else’s conscious effort, to stonewall news outlets. Either way, the precedent it establishes is pernicious: Journalists should not have to file expensive lawsuits to force the government to comply with the basic provisions of the Freedom of Information Act.
According to the same status report, the State Department intends to produce the first set of Reines’ emails on September 30, 2015—three years and six days after Gawker filed its initial request.
We’ve asked the State Department and Reines for comment and will update this post if we hear back from either.
Update, 1:46 p.m.
State Department spokesperson Alec Gerlach emails Gawker:
JK — Thanks for reaching out with the chance to comment here. The State Department does not comment on ongoing litigation though, so we will decline.
One of Philippe Reines’ attorneys, Adam B. Schwartz of Paul, Weiss, Rifkind, Wharton & Garrison LLP, provided the following statement to Gawker last night:
We represent Philippe Reines. In response to your question below, Philippe did not provide the 81,1589 state.gov emails discussed in the status report to the Department of State. He does not know where they came from. You would have to ask the State Department those questions.