May 8, 2018
VIA ELECTRONIC MAIL
U.S. Department of State
Office of Information Programs and Services
A/GIS/IPS/RL
SA-2, Suite 8100
Washington, DC 20522-0208
FOIArequest@state.gov
Re: Expedited Freedom of Information Act Request
Dear Freedom of Information Officer:
Pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552, and the implementing
regulations of the Department of State (State), 22 C.F.R. Part 171, American Oversight makes the
following request for records.
U.N. Ambassador Nikki Haley is one of State’s highest-ranking diplomats. Ambassador Haley has
been a crucial spokesperson for administration policy on a wide range of foreign policy issues,
including numerous statements regarding U.S. relations with Israel, North Korean nuclear
proliferation, the Iran nuclear agreement, Russian sanctions and the use of chemical weapons in
Syria.1 Recently, Ambassador Haley has made prominent statements to media outlets that
inaccurately represented U.S. policy.2
American Oversight seeks records with the potential to shed light on how Ambassador Haley and
her staff communicate with journalists and media outlets, including communications that concern
important matters of U.S. foreign policy.

1

See, e.g., Pamela Falk, Nikki Haley Drives Trump’s Israel Policy at the U.N., CBS NEWS (Apr.

26, 2018, 3:15 PM), https://www.cbsnews.com/news/nikki-haley-drives-donald-trump-israel-policyat-un/; Nicole Gaouette, Haley Says Russia’s Hands Are ‘Covered in the Blood of Syrian
Children’, CNN (Apr. 10, 2018, 1:59 PM), https://www.cnn.com/2018/04/09/politics/haley-unrussia-syria-attack/index.html; Martin Matishak, New Russia Sanctions Coming Monday, Haley
Says, POLITICO (Apr. 15, 2018, 1:09 PM), https://www.politico.com/story/2018/04/15/haley-russiasanctions-525325; Eli Meixler, ‘We Can Destroy You Too.’ Nikki Haley Denies President Trump
Is Softening Stance on North Korea, TIME, Jan. 8, 2018, http://time.com/5092000/nikki-haleynorth-korea-trump/.
2
Andrew Restuccia, White House Walks Back Nikki Haley’s Russia Sanctions Talk, POLITICO
(Apr. 16, 2018, 5:31 PM), https://www.politico.com/story/2018/04/16/trump-nikki-haley-russiasanctions-526856.
1030 15th Street NW, Suite B255, Washington, DC 20005   AmericanOversight.org

 Requested Records
American Oversight requests that State produce the following within twenty business days:
All records reflecting communications (including emails, email attachments, text messages,
messages on messaging platforms (such as Slack, GChat or Google Hangouts, Lync, Skype,
or WhatsApp), telephone call logs, calendar entries/invitations, meeting notices, meeting
agendas, informational material, draft legislation, talking points, any handwritten or
electronic notes taken during any oral communications, summaries of any oral
communications, or other materials) between A) U.N. Ambassador Nikki Haley, Jon
Lerner, Jonathan Wachtel, Steven Groves, or David M. Glaccum, and B) any journalists
and other representatives of media and press outlets, including, but not limited to, Fox
News.
Please provide all responsive records from January 27, 2017, to the date of the search.
In addition to the records requested above, American Oversight also requests records describing
the processing of this request, including records sufficient to identify search terms used and
locations and custodians searched and any tracking sheets used to track the processing of this
request. If State uses FOIA questionnaires or certifications completed by individual custodians or
components to determine whether they possess responsive materials or to describe how they
conducted searches, we also request any such records prepared in connection with the processing
of this request.
American Oversight seeks all responsive records regardless of format, medium, or physical
characteristics. In conducting your search, please understand the terms “record,” “document,” and
“information” in their broadest sense, to include any written, typed, recorded, graphic, printed, or
audio material of any kind. We seek records of any kind, including electronic records, audiotapes,
videotapes, and photographs, as well as letters, emails, facsimiles, telephone messages, voice mail
messages and transcripts, notes, or minutes of any meetings, telephone conversations or
discussions. Our request includes any attachments to these records. No category of material should
be omitted from search, collection, and production.
Please search all records regarding agency business. You may not exclude searches of files or
emails in the personal custody of your officials, such as personal email accounts. Records of
official business conducted using unofficial systems or stored outside of official files is subject to
the Federal Records Act and FOIA.3 It is not adequate to rely on policies and procedures that
require officials to move such information to official systems within a certain period of time;
American Oversight has a right to records contained in those files even if material has not yet been

See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, 827 F.3d 145, 149–50 (D.C. Cir.
2016); cf. Judicial Watch, Inc. v. Kerry, 844 F.3d 952, 955–56 (D.C. Cir. 2016).
3

2

STATE-18-0300

 moved to official systems or if officials have, through negligence or willfulness, failed to meet their
obligations.4
In addition, please note that in conducting a “reasonable search” as required by law, you must
employ the most up-to-date technologies and tools available, in addition to searches by individual
custodians likely to have responsive information. Recent technology may have rendered State’s
prior FOIA practices unreasonable. In light of the government-wide requirements to manage
information electronically by the end of 2016, it is no longer reasonable to rely exclusively on
custodian-driven searches.5 Furthermore, agencies that have adopted the National Archives and
Records Agency (NARA) Capstone program, or similar policies, now maintain emails in a form
that is reasonably likely to be more complete than individual custodians’ files. For example, a
custodian may have deleted a responsive email from his or her email program, but State’s
archiving tools would capture that email under Capstone. Accordingly, American Oversight insists
that State use the most up-to-date technologies to search for responsive information and take steps
to ensure that the most complete repositories of information are searched. American Oversight is
available to work with you to craft appropriate search terms. However, custodian searches are still
required; agencies may not have direct access to files stored in .PST files, outside of network
drives, in paper format, or in personal email accounts.
Under the FOIA Improvement Act of 2016, agencies must adopt a presumption of disclosure,
withholding information “only if . . . disclosure would harm an interest protected by an exemption”
or “disclosure is prohibited by law.”6 If it is your position that any portion of the requested records
is exempt from disclosure, American Oversight requests that you provide an index of those
documents as required under Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973), cert. denied, 415
U.S. 977 (1974). As you are aware, a Vaughn index must describe each document claimed as
exempt with sufficient specificity “to permit a reasoned judgment as to whether the material is
actually exempt under FOIA.”7 Moreover, the Vaughn index “must describe each document or

See Competitive Enter. Inst. v. Office of Sci. & Tech. Policy, No. 14-cv-765, slip op. at 8 (D.D.C.
Dec. 12, 2016) (“The Government argues that because the agency had a policy requiring [the
official] to forward all of his emails from his [personal] account to his business email, the
[personal] account only contains duplicate agency records at best. Therefore, the Government
claims that any hypothetical deletion of the [personal account] emails would still leave a copy of
those records intact in [the official’s] work email. However, policies are rarely followed to
perfection by anyone. At this stage of the case, the Court cannot assume that each and every work
related email in the [personal] account was duplicated in [the official’s] work email account.”
(citations omitted)).
5
Presidential Memorandum—Managing Government Records, 76 Fed. Reg. 75,423 (Nov. 28,
2011), https://obamawhitehouse.archives.gov/the-press-office/2011/11/28/presidentialmemorandum-managing-government-records; Office of Mgmt. & Budget, Exec. Office of the
President, Memorandum for the Heads of Executive Departments & Independent Agencies,
“Managing Government Records Directive,” M-12-18 (Aug. 24, 2012),
https://www.archives.gov/files/records-mgmt/m-12-18.pdf.
6
FOIA Improvement Act of 2016 § 2 (Pub. L. No. 114–185).
7
Founding Church of Scientology v. Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
4

3

STATE-18-0300

 portion thereof withheld, and for each withholding it must discuss the consequences of disclosing
the sought-after information.”8 Further, “the withholding agency must supply ‘a relatively detailed
justification, specifically identifying the reasons why a particular exemption is relevant and
correlating those claims with the particular part of a withheld document to which they apply.’” 9
In the event some portions of the requested records are properly exempt from disclosure, please
disclose any reasonably segregable non-exempt portions of the requested records. If it is your
position that a document contains non-exempt segments, but that those non-exempt segments are
so dispersed throughout the document as to make segregation impossible, please state what
portion of the document is non-exempt, and how the material is dispersed throughout the
document.10 Claims of nonsegregability must be made with the same degree of detail as required
for claims of exemptions in a Vaughn index. If a request is denied in whole, please state specifically
that it is not reasonable to segregate portions of the record for release.
You should institute a preservation hold on information responsive to this request. American
Oversight intends to pursue all legal avenues to enforce its right of access under FOIA, including
litigation if necessary. Accordingly, State is on notice that litigation is reasonably foreseeable.
To ensure that this request is properly construed, that searches are conducted in an adequate but
efficient manner, and that extraneous costs are not incurred, American Oversight welcomes an
opportunity to discuss its request with you before you undertake your search or incur search or
duplication costs. By working together at the outset, American Oversight and State can decrease
the likelihood of costly and time-consuming litigation in the future.
Where possible, please provide responsive material in electronic format by email or in PDF or
TIF format on a USB drive. Please send any responsive material being sent by mail to American
Oversight, 1030 15th Street NW, Suite B255, Washington, DC 20005. If it will accelerate release
of responsive records to American Oversight, please also provide responsive material on a rolling
basis.
Fee Waiver Request
In accordance with 5 U.S.C. § 552(a)(4)(A)(iii) and 22 C.F.R. § 171.16(a), American Oversight
requests a waiver of fees associated with processing this request for records. First, the subject of this
request concerns the operations of the federal government, and the disclosures will likely
contribute to a better understanding of relevant government procedures by the general public in a
significant way. 11 Second, the request is primarily and fundamentally for non-commercial
purposes.12
8
9

King v. U.S. Dep’t of Justice, 830 F.2d 210, 223–24 (D.C. Cir. 1987) (emphasis in original).
Id. at 224 (citing Mead Data Central, Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 251 (D.C.

Cir. 1977)).
10

Mead Data Central, 566 F.2d at 261.

11

22 C.F.R. § 171.16(a)(1).
22 C.F.R. § 171.16(a)(2).

12

4

STATE-18-0300

 Under the public interest requirement, FOIA requesters must satisfy four factors in sequence. 13
American Oversight has met these four factors for the reasons set forth below. The subject matter
of the requested records specifically relates to the operations or activities of the government
because it concerns the media and press strategies of the leadership of the U.S. Mission to the
United Nations and the communications of one of State’s highest-ranking diplomats—Ambassador
Haley—with the media. Ambassador Haley, through her consistent interviews and press
appearances,14 has demonstrated that communication with the media and public representations of
U.S. policy are an important and recurring part of her official role. The requested documents will
be “likely to contribute” to an understanding of specific government operations because of their
potential to shed light on how Ambassador Haley and the U.N. Mission staff communicate with
the media and what messages they prioritize in their public advocacy, including advocacy related to
important U.S. foreign policy objectives.
Increasing the likelihood that disclosure of these records will contribute significantly to public
understanding, American Oversight’s objective is to reveal to the public at large any information it
receives related to this FOIA request. American Oversight has the capacity to disseminate this
information as it posts all records to its public websites and publishes analyses of its records. In the
past, the organization has successfully informed the public of specific government activities and
operations. As an example, American Oversight obtained Education Secretary DeVos’s calendar
entries, which revealed Secretary DeVos’s frequent absences from office, staffing choices, and the
influence of charter schools and for-profit colleges on the Education Department. 15 The New York
Times and CNN relied on American Oversight’s analyses to report on Secretary DeVos’s
priorities within the Department of Education.16

D.C. Technical Assistance Org. Inc. v. U.S. Dep’t of Hous. and Urban Dev. (D.C. Technical
Assistance), 85 F.Supp.2d 46, 48–49 (D.D.C. 2000) (requested documents will contribute to
13

“greater understanding of government activities”).
14
See, e.g., Transcript: U.N. Ambassador Nikki Haley on "Face the Nation," CBS NEWS (Apr. 15,
2018, 10:48 AM), https://www.cbsnews.com/news/transcript-u-n-ambassador-nikki-haley-on-facethe-nation-april-15-2018/; Full Haley Interview: ‘Something Had to Be Done’ After Syrian
Chemical Attack, MEET THE PRESS, NBC NEWS (Apr. 9, 2017), https://www.nbcnews.com/meetthe-press/video/full-haley-interview-something-had-to-be-done-after-syrian-chemical-attack917255747782.
15
See Influence & Access at the Department of Education, AMERICAN OVERSIGHT (Oct. 27,
2017), https://www.americanoversight.org/investigation/influence-access-at-the-department-ofeducation; Unexcused Absences: DeVos Calendars Show Frequent Days Off , AMERICAN
OVERSIGHT (Oct. 27, 2017), https://www.americanoversight.org/unexcused-absences-devos.
16
Eric Lipton, Betsy DeVos’s School Schedule Shows Focus on Religious and Nontraditional
Schools, N.Y. TIMES, Oct. 27, 2017, https://www.nytimes.com/2017/10/27/us/politics/betsy-devoswork-schedule-education.html; Gregory Wallace et. al., What Betsy DeVos’s Schedule Tells Us
About Her Agenda, CNN (Oct. 29, 2017, 12:22 PM),
http://www.cnn.com/2017/10/28/politics/devos-schedules-education/index.html.

5

STATE-18-0300

 Disclosure will contribute to a greater understanding on the part of the public at large about
Ambassador Haley’s priorities and communications strategies through her and her staff’s
communications with press and media outlets. Disclosure will “significantly” contribute to the
public’s understanding of government activities or operations related to the media strategies
employed by one of State’s highest-ranking diplomats in her advocacy with news outlets to advance
the administration’s agenda and pursue U.S. foreign policy objectives. This includes how
Ambassador Haley and her staff communicate with the media about many of the most pressing
foreign policy challenges the United States faces, including our relationships with Israel, Iran,
Russia, and North Korea.17 Little information is currently available to the public showing how
Ambassador Haley and her staff employ media strategies to advance U.S. foreign policy and how
Ambassador Haley prioritizes communications concerning the important issues in her portfolio.
The subject of this request is a matter of public interest, and the public’s understanding of the
government’s activities would be enhanced through American Oversight’s analysis and publication
of these records.
American Oversight’s request is also primarily and fundamentally for non-commercial purposes.18
As a 501(c)(3) nonprofit, American Oversight does not have a commercial purpose and the release
of the information requested is not in American Oversight’s financial interest. American
Oversight’s mission is to promote transparency in government, to educate the public about
government activities, and to ensure the accountability of government officials. American Oversight
uses the information gathered, and its analysis of it, to educate the public through reports, press
releases, or other media. American Oversight also makes materials it gathers available on our
public website and promotes their availability on social media platforms, such as Facebook and
Twitter.19 American Oversight has demonstrated its commitment to the public disclosure of
documents and creation of editorial content. For example, after receiving records regarding an
ethics waiver received by a senior DOJ attorney, American Oversight promptly posted the records
to its website20 and published an analysis of what the records reflected about DOJ’s process for
ethics waivers.21 As an additional example, American Oversight has a project called “Audit the
Wall,” where the organization is gathering and analyzing information and commenting on public

17

See Falk, supra note 1, Gaouette, supra note 1, Matishak, supra note 1, Meixler, supra note 1.

22 C.F.R. § 171.16(a)(2)(i)-(iii).
American Oversight currently has approximately 11,900 page likes on Facebook and 41,700
followers on Twitter. American Oversight, FACEBOOK, https://www.facebook.com/weareoversight
(last visited May 7, 2018); American Oversight (@weareoversight), TWITTER,
https://twitter.com/weareoversight (last visited May 7, 2018).
20
DOJ Civil Division Response Noel Francisco Compliance, AMERICAN OVERSIGHT,
https://www.americanoversight.org/document/doj-civil-division-response-noel-franciscocompliance.
21
Francisco & the Travel Ban: What We Learned from the DOJ Documents, AMERICAN
OVERSIGHT, https://www.americanoversight.org/francisco-the-travel-ban-what-we-learned-from-thedoj-documents.
18
19

6

STATE-18-0300

 releases of information related to the administration’s proposed construction of a barrier along the
U.S.-Mexico border.22
Accordingly, American Oversight qualifies for a fee waiver.
Conclusion
We share a common mission to promote transparency in government. American Oversight looks
forward to working with State on this request. If you do not understand any part of this request,
have any questions, or foresee any problems in fully releasing the requested records, please contact
Dan McGrath at foia@americanoversight.org or 202.897.4213. Also, if American Oversight’s
request for a fee waiver is not granted in full, please contact us immediately upon making such a
determination.
Sincerely,

Melanie Sloan
Senior Advisor
American Oversight

22

Audit the Wall, AMERICAN OVERSIGHT, https://www.americanoversight.org/investigation/audit-

the-wall.

7

STATE-18-0300