CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records

Robert Hammond filed this request with the Office Of Secretary Of Defense And Joint Chief Of Staff (OSD/JS) of the United States of America .
Tracking #

21-F-0178

Due Dec. 31, 2020
Est. Completion None
Status
Awaiting Response

Communications

From: Robert Hammond


To Whom It May Concern:

Pursuant to the Freedom of Information Act, I hereby request the following records:

CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records. See PDF.
I am respectfully seeking:
1. In her May 7, 2019 letter at Enclosure 1, responding to Robert Hammond’s letter of
January 27, 2019 to Acting Secretary of Defense Shanahan: Subject: Request for
Investigation into DOD’s Massive, Long-standing, Ongoing False FOIA Reporting to
the Attorney General & Congress at Enclosure 2, Ms. Chung states that “Since 2017 you
[Robert Hammond] have submitted over 300 letters or emails to my office.” I am
seeking those records referenced over “300 letters or emails” in their native format as
received by Ms. Chung’s Office.
a. An email with attachments must be provided in its native MS Outlook format with the
embed attachments. DVD/CD with records would be required. If the Agency possesses
software to convert Outlook PST files to PDF with attachments (e.g. PST to PDF
Converter), that file format is acceptable to MUCKRUCK.com and is the preferred
method.
b. Emails attachments must not be separated out counted separately in the count of over 300
"letters or emails” as the email is a single correspondence.
2. I am also seeking that a copy of this FOIA Request (which is an agency record) be included as a
responsive record integral to my Request.
3. Please link this request to User Robert Hammond, perseverance2013@aol.com, in the
OSD/JS Public Access Link (PAL) system.

The requested documents will be made available to the general public, and this request is not being made for commercial purposes.

In the event that there are fees, I would be grateful if you would inform me of the total charges in advance of fulfilling my request. I would prefer the request filled electronically, by e-mail attachment if available or CD-ROM if not.

Thank you in advance for your anticipated cooperation in this matter. I look forward to receiving your response to this request within 20 business days, as the statute requires.

Sincerely,

Robert Hammond

  • CMO2020-A20Joo20Chung20ODCMO20DOD20False20Reporting20Records20w.20encl.pdf

From: Robert Hammond

From: donotreply@mail.mil <donotreply@mail.mil>
Sent: Tuesday, November 10, 2020 5:29 PM
To: perseverance2013@aol.com
Subject: Request Acknowledgement by OSD/JS FOIA Requester Service Center

Dear Robert Hammond,

Your request has been received by the OSD/JS FOIA Requester Service Center. The request has been assigned tracking # '21-F-0178'. Please log into your account and review your submission.

The application address is https://pal.whs.mil.

Thank you,

OSD/JS FOIA Requester Service Center

From: Office Of Secretary Of Defense And Joint Chief Of Staff (OSD/JS)

Good Morning,

This case was just processed and hasn’t been assigned as yet and when it is, the Action Officer will get in contact with an update.

V/R,

Bilal Khan

FOIA Analyst

Freedom of Information Division

OSD / JS FOIA Office

From: Office Of Secretary Of Defense And Joint Chief Of Staff (OSD/JS)

Good Afternoon Mr. Hammnond,

Please see the attached interim response to your Freedom of Information Act request, assigned case number 21-F-0178. If you have any questions regarding the processing of the case, please feel to reach out directly.

Very Respectfully,

Laura Pintar
Information Management Analyst
For Stephen Fisher, on behalf of
Stephanie L. Carr
Chief, Office of Freedom of Information
OSD/JS FOIA Requester Service Center

laura.a.pintar.ctr@mail.mil
Let us know how we are doing: https://ice.disa.mil/index.cfm?fa=card&sp=125562

From: Robert Hammond

Please respond to MUCKROCK.com FOIA request ASAP.

From: Office Of Secretary Of Defense And Joint Chief Of Staff (OSD/JS)

OSD FOIA Liaison,

I am seeking immediate dispute resolution as to unusual circumstances and the classification of this request as a complex request when it is in fact a simple request. In her May 7, 2019 letter at Enclosure 1, responding to Robert Hammond’s letter of January 27, 2019 to Acting Secretary of Defense Shanahan: Subject: Request for Investigation into DOD’s Massive, Long-standing, Ongoing False FOIA Reporting to the Attorney General & Congress at Enclosure 2, Ms. Chung states that “Since 2017 you [Robert Hammond] have submitted over 300 letters or emails to my office.

By the statement above, Ms. Joo Chung has already gathered the responsive 300 records and should be able to produce then within the statutory time. Since the correspondence was originated by me, a private citizen in the public domain, there is no need for redaction nor would it be lawful. While I believe that the records demonstrate incontrovertible known false reporting to the Attorney General of the United States I question the cited number of over 300. It appears that Ms. Chung may be counting a single email to multiple persons in her office as multiple pieces of correspondence and that she may be counting the attachments as separate pieces of correspondence.

Records demonstrate that false reporting to the Attorney General continues.

With my respect,

Robert Hammond

Whistleblower

om: requests@muckrock.com <requests@muckrock.com>

From: Robert Hammond

EXAMPLE OF EMAIL SENT TO JOO CHUNG: Compliance Inquiry. Initial Determination Letters Not Containing Right to OGIS Dispute Resolution [October 26, 2018 2:54 PM ]
See below and attached.
perseverance2013@aol.com

From: perseverance2013@aol.com
Sent: Monday, November 30, 2020 1:19 AM
To: 'OIP.ComplianceInquiry@usdoj.gov'; 'Bobak.Talebian@usdoj.gov'; 'OGIS@nara.gov'; 'lina.semo@nara.gov'
Cc: (perseverance2013@aol.com)
Subject: FW: Compliance Inquiry. Initial Determination Letters Not Containing Right to OGIS Dispute Resolution [October 26, 2018 2:54 PM ]
Attachments: Rigth to Dispute Resolution; Hammond 010040.pdf; Panama City Appeal Finan
Determination. Hammond 2018-012026 final response.pdf

Importance: High

OIP.ComplianceInquiry@usdoj.gov; Bobak.Talebian@usdoj.gov; OGIS@nara.gov; lina.semo@nara.gov

What is the status of my compliance inquiry and request for OGIS assistance regarding these unlawful actions by Department of Navy regarding Department of Navy’s statement that FOIA initial determination letters do not have to contain a statement regarding the right to seek dispute resolution from OGIS.

As part of its oversight and guidance responsibilities, OIP reviews inquiries made by the public raising issues regarding agencies' compliance with the FOIA statute and the Attorney General's FOIA
Guidelines. Compliance inquires may be submitted in writing to OIP by mail or e-mail.

FOIA Improvement Act of 2016

(bb) the right of such person to seek dispute resolution services from the FOIA Public Liaison of the agency or the Office of Government Information Services;

Please respond soonest to my Friday, October 26, 2018 2:54 PM email below. With my respect,
Robert Hammond Whistleblower

From: Bob Hammond <perseverance2013@aol.com> Sent: Friday, October 26, 2018 3:42 PM

To: joo.y.chung2.civ@mail.mil
Subject: FW: Compliance Inquiry. Initial Determination Letters Not Containing Right to OGIS Dispute Resolution Dear Ms. Chung,
Please advise Mr. Tillotson of this latest DOJ inquiry.

What is DOD’s position? Please provide your reply by email. Thank you.
With my deep respect, Robert Hammond

From: Bob Hammond <perseverance2013@aol.com> Sent: Friday, October 26, 2018 2:54 PM
To: Melanie.A.Pustay@usdoj.gov; alina.semo@nara.gov
Cc: OGIS@nara.gov; nikki.gramian@nara.gov; alina.semo@nara.gov; adam.yost@navy.mil; wendy.winston@navy.mil; grant.lattin@navy.mil; emilee.k.baldini@navy.mil; kirk.foster@navy.mil; soto.alaric@mail.mil; paul.richelmi@navy.mil; eva.lose@navy.mil; james.mckeon@navy.mil; Meredith.werner@navy.mil; matthew.roush@navy.mil; griffin.farris@navy.mil; robin.patterson@navy.mil; donfoia-pa@navy.mil; mary.p.shaw@navy.mil; richard.r.strong@navy.mil; joshua.portner.ctr@navy.mil; montant.johnson.ctr@navy.mil; Raymond.Hartwick.ctr@navy.mil; montana.johnson.ctr@navy.mil; robert.miller3.ctr@navy.mil; james.p.hogan4.civ@mail.mil
Subject: Compliance Inquiry. Initial Determination Letters Not Containing Right to OGIS Dispute Resolution Dear Ms. Pustay,
Please open a new DOJ compliance inquiry regarding Department of Navy’s statement that FOIA initial determination letters do not have to contain a statement regarding the right to seek dispute resolution from OGIS. The statute is clear in that regard. My express purpose in pursuing this is for Navy to change this practice and afford ALL requests that statutory right. Please provide me a separate letter with your findings and include this compliance inquiry in your reporting. I look forward to a prompt reply to this straight forward matter.

Ms. Semo,

Please also address this matter. Thank you.
With my respect, Robert Hammond
DEPARTMENT OF THE NAVY
OFFICE OF THE JUDGE ADVOCATE GENERAL 1322 PATTERSON AVENUE SE SUITE 3000 WASHINGTON NAVY YARD DC 20374

INREPLY REFER TO
5720
Ser 14/009 October 24, 2018
Mr. Robert Hammond REDACTED
Oakton, VA 22 l 24
perseverance2013@aol.com

SUBJECT: FREEDOM OF INFORMATION ACT (FOIA) REQUEST DON-NAVY­ NME 18-44; FOIA APPEAL DON-NAVY-2018-012040

This letter responds to your September 14, 2018 FOIA appeal. You challenge Navy Medicine East's (NME) September I 0, 2018 response to your FOIA request on four bases: (i) NME's failure to respond to your request within 20 working days; (ii) NME's failure to advise you of the right to seek dispute resolution services from the Office of Government Information Service (OGIS); (iii) NME's failure to release records in the requested format; and (iv) the adequacy ofNME's search of their email records. Your underlying request sought emails from NME for the period of l Oct 12 through 30 Sep 14 from DON FOINPA Office or Navy BUMED including the words both "Quarterly'' and "Privacy" in the subject.

Your appeal is a request for a final determination under the FOIA. For the reasons set forth below, your appeal is denied.

The first basis of your appeal is NME's failure to respond to your request within 20 working days. You submitted your FOIA request to NME on July 28, 2018. NME responded on September 10, 2018. NME exceeded the 20 working days time limit under the FOIA, but you already possess NME's response so no live dispute remains. For that reason, the first basis of your appeal is denied as moot as there is no relief that I can provide to remedy this situation.

FOIA Public Liaison, Mr. Chris Julka...." NME properly notified you of your right to seek dispute resolution services from the FOIA Public Liaison for this agency. The FOIA statute does not require this agency to also notify you of your right to seek such services from OGIS in addition to notifying you of your right to seek such services from the agency FOIA Public Liaison. Alternatively, your multiple FOIA requests to this agency have included many responses that inform you of your right to seek such services from OGIS, so you have not been harmed by the failure ofNME to inform you of that right. For these reasons, the second basis of your appeal is denied.

The third basis of your appeal is NME's failure to release responsive records to you in the requested format. The FOIA requires agencies to release a record "in any form or format requested by the person if the record is readily reproducible by the agency in that form or format." 5 U.S.C. § 552 (a)(3)(B). In your July 28, 2018 FOIA request, you requested that "documents [be] provided as a single PDF file by return email.. .." Instead of emailing you the responsive records in PDF format, NME mailed you hardcopy records and provided no justification for deviating from the requested format. However, in your appeal to this office you include a single PDF of the responsive records. Because you already possess the responsive records in your requested format, there remains no live dispute. For that reason, the third basis of your appeal is denied as moot.

The fourth basis of your appeal is the adequacy ofNME's search of email records. In your underlying request you sought "all e-mails during the period of 1 October 2012 through 30 September 2014 from DNS-36 or BUMED" containing Privacy and Quarterly in the subject. NME responded to you that according to records retention regulations all emails from that time were destroyed, that NME no longer maintains emails on a local server and that they referred the search to the Defense Information Systems Agency (DISA), that DISA conducted an electronic search and no responsive records were found and that NME also conducted a physical search for the records you requested with no responsive records found.

After receiving your appeal my office contacted DISA and they informed me that three years ago NME migratedto@mail.mil email addresses. DISA maintains all current emails from NME. They do not maintain any non@mail.mil email address archives. As stated above NME does maintain a local email server and did not find any records responsive to your original request on that server.

The adequacy of an agency's search for information requested under the FOIA is determined by a "reasonableness" test. Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir. 1986); Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1350-51 (D.C. Cir.
1983). As a general rule, an agency must undertake a search that is reasonably calculated to locate the requested information. Kowalczyk v. Department of Justice, 73 F.3d 386,

388 (D.C. Cir. 1996). Courts have found agencies satisfy the "reasonableness" test when they properly determine where responsive records are likely to be found and search those locations. Lechliter v. Rumsfeld, 182 F. App'x 113, 115 (3rd Cir. 2006) (concluding that agency fulfilled duty to conduct a reasonable search when it searched two offices that it determined to be the only ones likely to possess responsive documents (citing Oglesby v.
U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990)); McKinley v. Bd. of Governors of the Fed. Reserve Sys., 849 F. Supp. 2d 47, 55-56 (D.D.C. 2012) (concluding that agency's search was reasonable because agency determined that all responsive records were located in a particular location created for express purpose of collecting records related to subject of request and searched that location).

Moreover, courts have found that an agency's inability to locate a responsive record does not undermine an otherwise reasonable search. Moore v. FBI, 366 F. App'x 659, 661 (7th Cir. 2010) (noting that although agency had years earlier destroyed some potentially responsive records, that fact does not invalidate the search). Additionally, the mere speculation that requested documents exist does not undermine the finding that the agency conducted a reasonable search. Wilbur v. CJ.A., 355 F.3d 675, 678 (D.C. Cir.
2004) ("Likewise, the agency's failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records.").

In this case, NME first attempted to locate emails on a local email server for the time frame requested, but due to records retention policies and the migration of their email services to DISA, NME found no responsive records. NME also conducted a physical search. Likewise, DISA conducted an electronic search but, again, no responsive records were located. Based on the foregoing, I find NME's search was reasonable for purposes of the FOIA. As the Seventh Circuit stated in Moore, an agency's inability to locate responsive records does not undermine an otherwise reasonable search - even in a situation, exactly like this one, where the agency may have earlier destroyed some potentially responsive records. 366 F. App'x 659 at 661.

As the Department of the Navy's designated adjudication official for this FOIA appeal, I am responsible for this decision. You may seekjudicial review of this decision by filing a complaint in an appropriate U.S. District Court. My office represents the U.S. government and is therefore unable to assist you in this process.

If you would like to seek dispute resolution services, you have the right to contact the Department of the Navy's FOIA public liaison, Mr. Chris Julka, at (703) 697-0031, or christopher.a.julka@navy.mil.

If you have further questions or concerns for my office, my point of contact is Major James Mckeon, USMC at james.mckeon @navy.mil, or (202) 685-4596.

Sincerely,

G. E. LATTIN
Director
General Litigation Division
Copy to: NME DNS-36 DONCIO

DEPARTMENT OF THE NAVY
OFFICE OF THE JUDGE ADVOCATE GENERAL 1322 PATTERSON AVENUE SE SUITE 3000 WASHINGTON NAVY YARD DC 20374

IN REPLY REFER TO:
5720
Ser 14/011 October 29, 2018

Mr. Robert Hammond
REDACTED
Oakton, VA 22124
Email to: perseverance20l3@aol.com

SUBJECT: FREEDOM OF INFORMATION ACT (FOIA) REQUEST DON-NAVY- 2018-011608; FOIA APPEAL DON-NAVY-2018-012026

This letter responds to your FOIA appeal received in my office on October 1, 2018. In your appeal, you challenge the Department of the Navy (DON) Naval Surface Warfare Center Panama City Division (NSWC Panama City) FOIA response to you. Your stated bases for appeal are: NSWC Panama City's dated letter does not match the date of the email response; NSWC Panama City failed to respond to your request within the statutory twenty working-day time standard and failed to provide the statutory notification; and NSWC Panama City failed to advise you of your right to seek dispute resolution services.

In the underlying FOIA Request DON-NAVY-2018-011608, you asked NSWC Panama City for records in the "command's custody of all emails and attachments thereto (i.e. SOP) during the period of I October 2012 through 30 September 2014 from DON FOIA/PA Office (OPNAV DNS 36) or Navy BUMED including the words both 'FOIA' and 'Quarterly' in the subject[, to] include any Navy BUMED forwarding of DON FOINPA Office emails to your command or forwarding of DON FOIA/PA emails or Navy BUMED emails to your command by any other entity."

Your appeal is a request for a final agency determination under the FOIA. For the reasons set forth below, I deny your appeal.

The first basis of your appeal is NSWC Panama City's dated letter response to your FOIA request did not match the date of the email sent to you with the letter response as an attachment. You allege that the agency may be incorrectly computing the response time. NSWC Panama City's letter is dated September 20, 2018, and this letter was delivered via an email dated September 25, 2018. Following receipt of your appeal, my staff contacted the NSWC Panama City staff, who confirmed that the response letter emailed to you was sent on September 25, 2018. The FOIA establishes a statutory scheme for the public to use in making requests for existing agency records and imposes

requirements on agencies to make such records promptly available. My authority is limited to adjudication of your FOIA appeal, and I can only provide such relief that is available under the FOIA; therefore, to the extent that your appeal is a dispute of the veracity of the date in the correspondence provided to you, such a dispute is not the proper subject of a FOIA appeal and is, therefore, denied. In short, this office does not correct information; it only releases or withholds information under the FOIA.

The second basis of your appeal is NSWC Panama City's failure to respond within the statutory 20 working-day time standard. Additionally, you state NSWC Panama City failed to provide the statutory notification required when agencies extend the time limit by more than 10 additional working days of written notice to the requester regarding the right to seek dispute resolution services from the Office of Government Information Services. You submitted FOIA request DON-NAVY-2018-011608 on July 30, 2018, and NSWC Panama City responded on September 25, 2018. NSWC Panama City exceeded the 20 working days time limit under the FOIA, but you already possess NSWC Panama City's response so no live dispute remains for which I can provide relief. Regarding dispute resolution services, based on your multiple previous FOIA requests and the fact that you made it a basis of your current appeal, you are aware of this right and have suffered no harm. For that reason, the second basis of your appeal is denied as moot.

The third basis of your appeal is NSWC Panama City's failure to advise you of your right to seek dispute resolution services from the FOIA Public Liaison of the agency of the Office of Government Information Services, and therefore the initial determination is contrary to law and your appeal must be sustained. As I previously stated, you are clearly aware of your right to dispute resolution services and have suffered no harm. The third basis of your appeal is denied as moot.

As the Department of the Navy's designated adjudication official for this FOIA appeal, I am responsible for the partial denial of this appeal. You may seekjudicial review of this decision by filing a complaint in an appropriate U.S. District Court. My office represents the U.S. government and is therefore unable to assist you in this process.

If you would like to seek dispute resolution services, you have the right to contact the Department of the Navy's FOIA public liaison, Mr. Chris Julka, at christopher.a.julka@navy.mil or (703) 697-0031.

2

If you have further questions or concerns for my office, my point of contact is Major James McKean, who may be reached at james.mckeon @navy.mil or (202) 685-4595.

Sincerely,

G. E. LATTIN Director
General Litigation Division

Copy to:
NSWC Panama City DNS-36
DONCIO

  • OPR20Compliance20Inquiry3B20OGIS20Dispute20Resolution20Denied20by20Navy2020w.20atc.pdf

From: Office Of Secretary Of Defense And Joint Chief Of Staff (OSD/JS)

Good Afternoon Mr. Hammond,

The component has responded to your request for an estimated completion date. The current estimated completion date is February 19, 2021. Please know that is only an estimate and can be subject to change in either direction.

Should anything come up in the interim, I will be sure to give you an update.

Please feel free to reach out as often as necessary for updates. Thank you for your continued patience and I apologize for any delays associated with the processing of your request
Thank you.

Very Respectfully,
Laura Pintar
Government Information Specialist
For Pamela Andrews, on behalf of
Stephanie L. Carr
Chief, Office of Freedom of Information
OSD/JS FOIA Requester Service Center

laura.a.pintar.civ@mail.mil
Let us know how we are doing: https://ice.disa.mil/index.cfm?fa=card&sp=125562

From: Robert Hammond

From: perseverance2013@aol.com <perseverance2013@aol.com>
Sent: Thursday, January 21, 2021 1:07 AM
To: 'OSD.FOIALiaison@mail.mil' <OSD.FOIALiaison@mail.mil>; 'joo.y.chung2.civ@mail.mil' <joo.y.chung2.civ@mail.mil>
Subject: FW: FOIA request #'21-F-0178' Preserve records. Enduring Interest. Lisa.W.Hershman, CMO. CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records
Importance: High

From: perseverance2013@aol.com <perseverance2013@aol.com>
Sent: Thursday, January 21, 2021 1:04 AM
To: 'OSD.FOIALiaison@mail.mil.' <OSD.FOIALiaison@mail.mil.>; 'joo.y.chung2.civ@mail.mil'; 'james.p.hogan4.civ@mail.mil' <james.p.hogan4.civ@mail.mil>; 'cindy.l.allard.civ@mail.mil' <cindy.l.allard.civ@mail.mil>; 'OSD MC-ALEX OCMO Mailbox DFOIPO FOIA-APPEALS' <osd.mc-alex.ocmo.mbx.dfoipo-foia-appeals@mail.mil>; 'tonya.R.Fuentes@mail.mil' <tonya.R.Fuentes@mail.mil>; 'Stephanie.Carr@mail.mil' <Stephanie.Carr@mail.mil>; 'Lisa.W.Hershman@mail.mil' <Lisa.W.Hershman@mail.mil>
Cc: (perseverance2013@aol.com) <perseverance2013@aol.com>
Subject: FOIA request #'21-F-0178' Preserve records. Enduring Interest. Lisa.W.Hershman, CMO. CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records
Importance: High

Re: Freedom of Information Act Request: CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records. FOIA request #'21-F-0178

Pls see below as to enduring interest and responsibility to preserve records for judicial review, including electronic records.

Pls acknowledge.

With my respect,

Robert Hammond
Whistleblower
--/

STILL-INTERESTED PREEMPTIVE REPLY. This is a preemptive reply to the Justice Department guidelines the procedure known as a “still interested” inquiry, through which a FOIA officer can confirm that the requester has not lost interest in obtaining the documents.

My interest in all FOIA requests submitted to your office is enduring, meaning that my interest in seeking replies to all past and future FOIA request remains in effect until each request has been answered fully and the time for judicial review has passed. Please do not initiate any "still interested" inquiries. This serves as my notice of enduring interest and automatic reply to any future questions of interest by your office. There are no reasonable grounds to ever conclude in the future that I am not interested in this request.

PRESERVE RECORDS AND SEARCHES FOR JUDICIAL REVIEW.

Please search for, locate and preserve all responsive or potentially responsive records and records of your searches in your FOIA case file until the statutory date for judicial review has passed (should that be necessary) or in accordance with a NARA approved records schedule, if longer. NARA GRS 4.2 requires that FOIA and Privacy Act case files be retained for 6 years after final agency action or 3 years after final adjudication by the courts, whichever is later.
Records of responsive searches would include but not be limited to: searches conducted for each specific record sought and all other records known to the Agency, including dates, manner of searching, responsible agent or employee conducting each search and the results thereof. Such persons determining the locations of responsive records must be inclusive of persons who would know such locations and their identities and manner of determining search locations must be preserved.

In any subsequent proceedings, I may seek sworn declarations and a court order appointing a special counsel, as appropriate. Similarly, I may pursue additional venues.

Any deletion of potentially responsive records by any party having knowledge of this Request may be a violation of law. In as much as applicable staff and leadership have knowledge of my subject request, the Agency must search for, locate and preserve all responsive or potentially responsive records and records of searches in their FOIA case file, and leadership must ensure that this is done. Failing to do so and allowing records to be deleted IAW any other records management schedule may be a violation of law.

ELECTRONIC RECORDS PRESERVATION.

The Agency must preserve all electronically stored information, copies and backup, as defined by Rule 34 of the Federal Rules of Civil Procedure, along with any paper files which the Agency
maintains, relevant to this dispute. I am seeking electronic data in the Agency’s and control that is relevant to this action, including without limitation emails, along with metadata, and other information contained on Agency computer systems and any electronic storage systems. I consider this electronic data and paper files to be valuable and irreplaceable sources of discoverable information in this matter. No procedures should have been implemented to alter any active, deleted or fragmented data. Moreover, no electronic data should have been disposed of or destroyed. (ETL Institute for Advancement of America’s Legal System).

Further, to properly fulfill your preservation obligation, stop all scheduled data destruction, electronic shredding, rotation of backup tapes, and the sale, gift or destruction of hardware. Notify all individuals and of the need and duty to take the necessary affirmatives steps to comply with the duty to preserve evidence. (2008 Thomson Delmar Learning).

DLA’s Director of Information Operations must initiate procedures to preserve electronic records.

ALTERATION/DESTRUCTION OF RECORDS

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. 18 U.S. Code § 1519 - Destruction, alteration, or falsification of records. (Added Pub. L. 107–204, title VIII, §802(a), July 30, 2002, 116 Stat. 800.).

18 U.S.C. 641 and 2071. The penalties for the unlawful or accidental removal, defacing, alteration, or destruction of Federal records or the attempt to do so, include a fine, imprisonment, or both (18 U.S.C. 641 and 2071).
36 CFR § 1230 UNLAWFUL OR ACCIDENTAL REMOVAL, DEFACING, ALTERATION, OR DESTRUCTION OF RECORDS
§1230.3
Unlawful or accidental destruction (also called unauthorized destruction) means disposal of an unscheduled or permanent record; disposal prior to the end of the NARA-approved retention period of a temporary record (other than court-ordered disposal under §1226.14(d) of this subchapter); and disposal of a record subject to a FOIA request, litigation hold, or any other hold requirement to retain the records.
IMPROPOERLY WITHHOLDING RECORDS

Pursuant to FOIA:
“Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.” 5 U.S.C. § 552(a)(4)(F)(i).

LEGAL FRAMEWORK OF FOIA

1. The definition of “records” includes:
“[A]ll books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.” 44 U.S.C. § 3301 (emphasis supplied).
2. FOIA requires that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person” 5 U.S.C. § 552(a)(3)(A).
3. FOIA requires that “each agency shall establish a system to assign an individualized tracking number for each request received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request” 5 U.S.C. § 522(a)(7)(A).
4. FOIA requires that each agency shall “establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including the date on which the agency originally received the request; and an estimated date on which the agency will complete action on the request. 5 U.S.C. § 522(a)(7)(B).
5. FOIA also requires federal agencies to make a final determination on FOIA administrative appeals that it receives within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal, unless the agency expressly provides notice to the requester of “unusual circumstances” meriting additional time for responding to a FOIA request. 5 U.S.C. § 552(a)(6)(A)(ii).
6. FOIA expressly provides that a person shall be deemed to have constructively exhausted their administrative remedies if the agency fails to comply with the applicable time limitations provided by 5 U.S.C. § 552(a)(6)(A)(I) - (ii). See also 5 U.S.C. § 552(a)(6)(C).
7. FOIA provides that any person who has not been provided the records requested pursuant to FOIA, after exhausting their administrative remedies, may seek legal redress from the Federal District Court to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.
8. Regarding he names of the FOIA requesters, the courts have held hat under the FOIA requesters do not have an expectation of privacy. Stauss v. IRS, 516 F. Supp. 1218, 1223 (D.D.C. 1981),
9. Under FOIA, the federal agency has the burden of sustaining its actions. 5 U.S.C.§ 552(a)(4)(B).
10. Pursuant to FOIA, a Court may assess attorney fees and litigation costs against the United States if the Plaintiff prevails in an action thereunder. 5 U.S.C. § 552(a)(4)(E).
11. Department of Justice (DOJ) has issued a handbook addressing FOIA Annual Reports. See DOJ, Handbook for Agency Annual Freedom of Information Act Reports, “Disposition of FOIA Requests,” (available at http://www.justice.gov/sites/default/files/oip/pages/attachments/2014/11/04/department_of_justice_handbook_for_agency_annual_freedom_of_information_act_reports.pdf) (“DOJ Handbook”).
12. Among other things, the DOJ Handbook states, “All requests (perfected and non-perfected), appeals, and consultations that were pending at any time during the relevant fiscal year [October 1st through September 30th] will be captured.”
13. The DOJ Handbook also states:
“[E]ach agency is ultimately responsible for the accuracy and completeness of its Annual FOIA Report. It is therefore essential for agencies to take steps that will ensure that they are adequately tracking all of the information necessary to complete the Annual FOIA Report sections detailed below. Agencies that utilize a tracking or case management system for this purpose are responsible for ensuring that the system they are using can produce an accurate Annual FOIA Report that is in compliance with the law and Department of Justice guidance.” DOJ Handbook, at 3.

  • CMO2020-A20Joo20Chung20ODCMO20DOD20False20Reporting20Records20w.20encl.pdf

From: Robert Hammond

From: perseverance2013@aol.com <perseverance2013@aol.com>
Sent: Thursday, January 21, 2021 1:07 AM
To: 'OSD.FOIALiaison@mail.mil' <OSD.FOIALiaison@mail.mil>; 'joo.y.chung2.civ@mail.mil' <joo.y.chung2.civ@mail.mil>
Subject: FW: FOIA request #'21-F-0178' Preserve records. Enduring Interest. Lisa.W.Hershman, CMO. CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records
Importance: High

From: perseverance2013@aol.com <perseverance2013@aol.com>
Sent: Thursday, January 21, 2021 1:04 AM
To: 'OSD.FOIALiaison@mail.mil.' <OSD.FOIALiaison@mail.mil.>; 'joo.y.chung2.civ@mail.mil'; 'james.p.hogan4.civ@mail.mil' <james.p.hogan4.civ@mail.mil>; 'cindy.l.allard.civ@mail.mil' <cindy.l.allard.civ@mail.mil>; 'OSD MC-ALEX OCMO Mailbox DFOIPO FOIA-APPEALS' <osd.mc-alex.ocmo.mbx.dfoipo-foia-appeals@mail.mil>; 'tonya.R.Fuentes@mail.mil' <tonya.R.Fuentes@mail.mil>; 'Stephanie.Carr@mail.mil' <Stephanie.Carr@mail.mil>; 'Lisa.W.Hershman@mail.mil' <Lisa.W.Hershman@mail.mil>
Cc: (perseverance2013@aol.com) <perseverance2013@aol.com>
Subject: FOIA request #'21-F-0178' Preserve records. Enduring Interest. Lisa.W.Hershman, CMO. CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records
Importance: High

Re: Freedom of Information Act Request: CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records. FOIA request #'21-F-0178

Pls see below as to enduring interest and responsibility to preserve records for judicial review, including electronic records.

Pls acknowledge.

With my respect,

Robert Hammond
Whistleblower
--/

STILL-INTERESTED PREEMPTIVE REPLY. This is a preemptive reply to the Justice Department guidelines the procedure known as a “still interested” inquiry, through which a FOIA officer can confirm that the requester has not lost interest in obtaining the documents.

My interest in all FOIA requests submitted to your office is enduring, meaning that my interest in seeking replies to all past and future FOIA request remains in effect until each request has been answered fully and the time for judicial review has passed. Please do not initiate any "still interested" inquiries. This serves as my notice of enduring interest and automatic reply to any future questions of interest by your office. There are no reasonable grounds to ever conclude in the future that I am not interested in this request.

PRESERVE RECORDS AND SEARCHES FOR JUDICIAL REVIEW.

Please search for, locate and preserve all responsive or potentially responsive records and records of your searches in your FOIA case file until the statutory date for judicial review has passed (should that be necessary) or in accordance with a NARA approved records schedule, if longer. NARA GRS 4.2 requires that FOIA and Privacy Act case files be retained for 6 years after final agency action or 3 years after final adjudication by the courts, whichever is later.
Records of responsive searches would include but not be limited to: searches conducted for each specific record sought and all other records known to the Agency, including dates, manner of searching, responsible agent or employee conducting each search and the results thereof. Such persons determining the locations of responsive records must be inclusive of persons who would know such locations and their identities and manner of determining search locations must be preserved.

In any subsequent proceedings, I may seek sworn declarations and a court order appointing a special counsel, as appropriate. Similarly, I may pursue additional venues.

Any deletion of potentially responsive records by any party having knowledge of this Request may be a violation of law. In as much as applicable staff and leadership have knowledge of my subject request, the Agency must search for, locate and preserve all responsive or potentially responsive records and records of searches in their FOIA case file, and leadership must ensure that this is done. Failing to do so and allowing records to be deleted IAW any other records management schedule may be a violation of law.

ELECTRONIC RECORDS PRESERVATION.

The Agency must preserve all electronically stored information, copies and backup, as defined by Rule 34 of the Federal Rules of Civil Procedure, along with any paper files which the Agency
maintains, relevant to this dispute. I am seeking electronic data in the Agency’s and control that is relevant to this action, including without limitation emails, along with metadata, and other information contained on Agency computer systems and any electronic storage systems. I consider this electronic data and paper files to be valuable and irreplaceable sources of discoverable information in this matter. No procedures should have been implemented to alter any active, deleted or fragmented data. Moreover, no electronic data should have been disposed of or destroyed. (ETL Institute for Advancement of America’s Legal System).

Further, to properly fulfill your preservation obligation, stop all scheduled data destruction, electronic shredding, rotation of backup tapes, and the sale, gift or destruction of hardware. Notify all individuals and of the need and duty to take the necessary affirmatives steps to comply with the duty to preserve evidence. (2008 Thomson Delmar Learning).

DLA’s Director of Information Operations must initiate procedures to preserve electronic records.

ALTERATION/DESTRUCTION OF RECORDS

Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both. 18 U.S. Code § 1519 - Destruction, alteration, or falsification of records. (Added Pub. L. 107–204, title VIII, §802(a), July 30, 2002, 116 Stat. 800.).

18 U.S.C. 641 and 2071. The penalties for the unlawful or accidental removal, defacing, alteration, or destruction of Federal records or the attempt to do so, include a fine, imprisonment, or both (18 U.S.C. 641 and 2071).
36 CFR § 1230 UNLAWFUL OR ACCIDENTAL REMOVAL, DEFACING, ALTERATION, OR DESTRUCTION OF RECORDS
§1230.3
Unlawful or accidental destruction (also called unauthorized destruction) means disposal of an unscheduled or permanent record; disposal prior to the end of the NARA-approved retention period of a temporary record (other than court-ordered disposal under §1226.14(d) of this subchapter); and disposal of a record subject to a FOIA request, litigation hold, or any other hold requirement to retain the records.
IMPROPOERLY WITHHOLDING RECORDS

Pursuant to FOIA:
“Whenever the court orders the production of any agency records improperly withheld from the complainant and assesses against the United States reasonable attorney fees and other litigation costs, and the court additionally issues a written finding that the circumstances surrounding the withholding raise questions whether agency personnel acted arbitrarily or capriciously with respect to the withholding, the Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding. The Special Counsel, after investigation and consideration of the evidence submitted, shall submit his findings and recommendations to the administrative authority of the agency concerned and shall send copies of the findings and recommendations to the officer or employee or his representative. The administrative authority shall take the corrective action that the Special Counsel recommends.” 5 U.S.C. § 552(a)(4)(F)(i).

LEGAL FRAMEWORK OF FOIA

1. The definition of “records” includes:
“[A]ll books, papers, maps, photographs, machine readable materials, or other documentary materials, regardless of physical form or characteristics, made or received by an agency of the United States Government under Federal law or in connection with the transaction of public business and preserved or appropriate for preservation by that agency or its legitimate successor as evidence of the organization, functions, policies, decisions, procedures, operations, or other activities of the Government or because of the informational value of data in them.” 44 U.S.C. § 3301 (emphasis supplied).
2. FOIA requires that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed, shall make the records promptly available to any person” 5 U.S.C. § 552(a)(3)(A).
3. FOIA requires that “each agency shall establish a system to assign an individualized tracking number for each request received that will take longer than ten days to process and provide to each person making a request the tracking number assigned to the request” 5 U.S.C. § 522(a)(7)(A).
4. FOIA requires that each agency shall “establish a telephone line or Internet service that provides information about the status of a request to the person making the request using the assigned tracking number, including the date on which the agency originally received the request; and an estimated date on which the agency will complete action on the request. 5 U.S.C. § 522(a)(7)(B).
5. FOIA also requires federal agencies to make a final determination on FOIA administrative appeals that it receives within twenty days (excepting Saturdays, Sundays, and legal public holidays) after the receipt of such appeal, unless the agency expressly provides notice to the requester of “unusual circumstances” meriting additional time for responding to a FOIA request. 5 U.S.C. § 552(a)(6)(A)(ii).
6. FOIA expressly provides that a person shall be deemed to have constructively exhausted their administrative remedies if the agency fails to comply with the applicable time limitations provided by 5 U.S.C. § 552(a)(6)(A)(I) - (ii). See also 5 U.S.C. § 552(a)(6)(C).
7. FOIA provides that any person who has not been provided the records requested pursuant to FOIA, after exhausting their administrative remedies, may seek legal redress from the Federal District Court to enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.
8. Regarding he names of the FOIA requesters, the courts have held hat under the FOIA requesters do not have an expectation of privacy. Stauss v. IRS, 516 F. Supp. 1218, 1223 (D.D.C. 1981),
9. Under FOIA, the federal agency has the burden of sustaining its actions. 5 U.S.C.§ 552(a)(4)(B).
10. Pursuant to FOIA, a Court may assess attorney fees and litigation costs against the United States if the Plaintiff prevails in an action thereunder. 5 U.S.C. § 552(a)(4)(E).
11. Department of Justice (DOJ) has issued a handbook addressing FOIA Annual Reports. See DOJ, Handbook for Agency Annual Freedom of Information Act Reports, “Disposition of FOIA Requests,” (available at http://www.justice.gov/sites/default/files/oip/pages/attachments/2014/11/04/department_of_justice_handbook_for_agency_annual_freedom_of_information_act_reports.pdf) (“DOJ Handbook”).
12. Among other things, the DOJ Handbook states, “All requests (perfected and non-perfected), appeals, and consultations that were pending at any time during the relevant fiscal year [October 1st through September 30th] will be captured.”
13. The DOJ Handbook also states:
“[E]ach agency is ultimately responsible for the accuracy and completeness of its Annual FOIA Report. It is therefore essential for agencies to take steps that will ensure that they are adequately tracking all of the information necessary to complete the Annual FOIA Report sections detailed below. Agencies that utilize a tracking or case management system for this purpose are responsible for ensuring that the system they are using can produce an accurate Annual FOIA Report that is in compliance with the law and Department of Justice guidance.” DOJ Handbook, at 3.

From: Robert Hammond

From: OSD MC-ALEX OCMO Mailbox DFOIPO FOIA-APPEALS
To: perseverance2013@aol.com
Subject: Read: [Non-DoD Source] FOIA request #"21-F-0178" Preserve records. Enduring Interest. Lisa.W.Hershman,
CMO. CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records
Date: Thursday, January 21, 2021 10:53:01 AM
Importance: High
Your message
To: OSD MC-ALEX OCMO Mailbox DFOIPO FOIA-APPEALS
Subject: [Non-DoD Source] FOIA request #'21-F-0178' Preserve records. Enduring Interest. Lisa.W.Hershman, CMO. CMO 20-A Joo Chung
ADCMO DOD False FOIA Reporting Records
Sent: Thursday, January 21, 2021 6:03:45 AM (UTC) Coordinated Universal Time
was read on Thursday, January 21, 2021 1:34:03 PM (UTC) Coordinated Universal Time.

From: Pintar, Laura A CIV (USA)
To: perseverance2013@aol.com
Subject: Read: [Non-DoD Source] FW: FOIA request #"21-F-0178" Preserve records. Enduring Interest. Lisa.W.Hershman,
CMO. CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records
Date: Thursday, January 21, 2021 10:53:01 AM
Importance: High

From: Chung, Joo Y SES OSD OCMO (USA)
To: perseverance2013@aol.com
Subject: Read: [Non-DoD Source] FW: FOIA request #"21-F-0178" Preserve records. Enduring Interest. Lisa.W.Hershman,
CMO. CMO 20-A Joo Chung ADCMO DOD False FOIA Reporting Records
Date: Thursday, January 21, 2021 10:53:01 AM
Importance: High

  • Read.205BNon-DoD20Source5D20FW.20FOIA20request202321-F-017820Preserve20records.20E.pdf

From: Office Of Secretary Of Defense And Joint Chief Of Staff (OSD/JS)

Good Morning Mr. Hammond,

This office acknowledges you are still interested in FOIA request number 21-F-0178. This case is being processed.

Very Respectfully,

Laura Pintar

Government Information Specialist

For Pamela Andrews, on behalf of

Stephanie L. Carr

Chief, Office of Freedom of Information

OSD/JS FOIA Requester Service Center

laura.a.pintar.civ@mail.mil

Let us know how we are doing: https://ice.disa.mil/index.cfm?fa=card&sp=125562

From: Robert Hammond

STILL-INTERESTED PREEMPTIVE REPLY. This is a preemptive reply to the Department of Justice(DOJ) guidelines the procedure known as a “still interested” inquiry, through which a FOIA officer can confirm that the requester has not lost interest in obtaining the documents.

My interest in all FOIA requests submitted to your office is enduring, meaning that my interest in seeking replies to all past and future FOIA request remains in effect until each request has been answered fully and the time for judicial review has passed. Please do not initiate any "still interested" inquiries. This serves as my notice of enduring interest and automatic reply to any future questions of interest by your office. There are no reasonable grounds to ever conclude in the future that I am not interested in this request.

Implementation Checklist for DOJ OIP Guidance on “Still-Interested” Inquiries:
1. Ensure there are reasonable grounds to make a “still-interested” inquiry in first instance.
2. Absent good cause, do not make multiple “still-interested” inquiries.
3. Use requester’s preferred method of communication and in the absence of a preference, communicate by telephone or email as the default.
4. Memorialize any decision by a requester to withdraw a request that is conveyed by telephone by sending the requester a brief email or letter noting the withdrawal.
5. Provide requesters no less than thirty (30) working days to respond to the “still-interested” inquiry and ensure that there is a simple way to do so.
6. Advise the requester that if they elect not to respond to the inquiry, the request will be administratively closed at the conclusion of the designated time period (which must be at least 30 working days).
7. Prior to administratively closing a request based upon the lack of a response by the requester, make good faith efforts to reach out to the requester using multiple methods of communication.
8. In the event a requester responds to the “still- interested” inquiry within a reasonable time after the deadline has passed, reopen the request and place it back into the processing queue where it would have been.

From: Office Of Secretary Of Defense And Joint Chief Of Staff (OSD/JS)

Good Afternoon Mr. Hammond,

This is in response to your March 31, 2021 inquiry regarding the status of your request.

Please note that your request was tasked to a component for search. Unfortunately, the search for the requested records has not been completed. As stated in our interim response, our administrative workload was 3,478 open requests at the time we received this request. Please understand our problem with the volume of requests. Once I received the response from the agency conducting the search, I will act on your request as soon as possible and respond directly to you. I have also requested an estimated completion date from the component conducting the search and once I hear from the component, I will update you with that date. I apologize for the anticipated delay in responding to your request.

If you have any additional questions, please contact me.

Very Respectfully,

Laura Pintar

Government Information Specialist

Freedom of Information Division

OSD/JS FOIA Requester Service Center

Office: (571) 372-0422

NIPR: laura.a.pintar.civ@mail.mil

SIPR: laura.a.pintar.civ@mail.smil.mil

Comments: Https://ice.disa.mil/index.cfm?fa=card&sp=125562

From: Office Of Secretary Of Defense And Joint Chief Of Staff (OSD/JS)

Ms. Pintar,

Thx.

This is a simple FOIA request.

DOD cited that number of correspondences in a letter to US Representative Wexton. Therefore, the records have already been assembled. Pls release them into the Public Domain soonest via MUCKROCK.com.

There is great public interest in these records, as well as interest in other potential forums, such as Congressional inquiry.

With my respect,

Robert Hammond

Whistleblower

From: Office Of Secretary Of Defense And Joint Chief Of Staff (OSD/JS)

Good Afternoon Mr. Hammond,

The current estimated completion date for your Freedom of Information Act request, 21-F-0178, is May 28, 2021. Please know that is only an estimate and can be subject to change in either direction.

Should anything come up in the interim, I will be sure to give you an update.

Please feel free to reach out as often as necessary for updates. Thank you for your continued patience and I apologize for any delays associated with the processing of your request

Thank you.

Very Respectfully,

Laura Pintar

Government Information Specialist

For Richard Strong, on behalf of

Stephanie L. Carr

Chief, Office of Freedom of Information

OSD/JS FOIA Requester Service Center

laura.a.pintar.civ@mail.mil

Let us know how we are doing: https://ice.disa.mil/index.cfm?fa=card&sp=125562

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