State Department Attempts to Change Rules in Response to E&E Legal Suit in order to Avoid Releasing Requested Paris Treaty Records
Washington, D.C. – Yesterday Attorneys for the State Department filed a brief in response to the Energy & Environment Legal Insitute's (E&E Legal's) May Motion for Summary Judgment with the United States District Court for the Eastern District of Virginia over the State Department’s continuing, abusive withholding of correspondence about its orchestration of the Paris climate treaty. Despite a change in presidents and the Trump Administration's recent announcement that the United States would be withdrawing from the disastrous Paris Treaty, certain officials within the State Department apparently intend to continue fighting to keep the pact alive, in part by keeping details of its coordination with outside lobbies from the public.
"Yesterday's State Department filing sunk to new lows in its effort to withhold and stonewall the release of crucial documents regarding its role in aggressively pursuing the Paris Treaty under the Obama Administration," said Matthew Hardin an attorney for E&E Legal. "Particularly troubling is the argument State makes that it can classify materials long after a FOIA request is made in order to evade mandatory production of that document under FOIA."
In one particular instance, a document was classified more than a year after litigation covering the record began. In this case, the FOIA request at issue was submitted January 28, 2015. However, the State Department concedes in its brief that the Department later classified the document number C05897945, on May 25, 2016, nearly 16 months after the request at issue seeking its release. In another instance, document number C05822362 was purportedly classified on January 8, 2016, eleven months after the request at issue. Documents C05810405 and C05810393 were not classified until August 3, 2015, 6 months after the request at issue. State cites these moves to justify withholding the records from the public.
This is abusive in its secrecy, as the courts are clear that a document's status at the time a request is made is what governs its legal status. For example, in Judicial Watch v. U.S. Dep't. of Commerce, the Court states: “[T]he status of a particular document at the time the FOIA request is submitted determines whether the unreasonable failure to produce that document is an unlawful withholding.”
Thus, the State Department is improperly claiming post facto moves to hide records as their reason for hiding them. This is prohibited for the obvious reason that an agency could otherwise easily “game” the classification system to evade FOIA if post-request re-classifications are permitted. Moreover, if Courts were to permit the State Department to use a classification order issued 16 months after a request to defeat the production of documents, it would effectively reward what has become State's notorious practice of dilatory FOIA productions (foot-dragging).
A bigger issue, however, is why Secretary Rex Tillerson's State Department is still playing such improper games to avoid releasing records which expose the previous Administration's pursuit of an extreme 'climate' treaty, one that the new Administration has expressly rejected. Recalling the recent battle over whether to withdraw from the Paris Treaty, it is notable that the State Department and Sec. Tillerson vehemently advocated remaining in the treaty, expanding its dream of a 'climate diplomatic corps' (and accompanying budget), insisting without success that the President break one of his most important campaign promises.
However, the June 1, 2017 Rose Garden announcement remains just that until some step formalizing the announced withdrawal occurs. It is no secret that well-placed White House and State staff are working to orchestrate a reversal until that step occurs. As E&E Legal's Senior Legal Fellow Chris Horner said at the time of a recent court filing, “State is largely populated by those whose worldview embraces such gestures advancing an agenda in the name of global salvationism. President Trump should view State’s input here with great suspicion, taking note of its record on this matter.”
"As the President's Rose Garden address detailing the United States plans to withdraw from the Paris Treaty moves further into the rearview mirror, unfortunately it appears that State hasn't gotten or refuses to accept the memo, and in fact is gearing up to continue the battle on behalf of the 'climate' industry,'" said Horner. "President Trump's Paris Treaty announcement was just the starting gun not the finish of this contest, and based on State's continuing stonewalling of our case, it's clear they hope to reverse the President's decision between now and when he must submit a formal letter to the United Nations in November 2019."
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