U.S. State Department Subpoena Request Denial Letter Turns Up in Court, and Setting the Record Straight on Internet Rumor
One of the letters attached to Berg’s Opposition and supporting Brief turned up in the court today. I thought it was new — apparently, even I haven’t been reading close enough. Here’s the deal, anyway, for those who missed the boat like me:
In a letter from David Newman of the Office of Legal Adviser for the U.S. Department of State dated September 24, 2008, Berg’s attempted service of subpoena on the Vital Records Section of the State Department and a pair of U.S. embassies was rejected.
While I did not originally know, due in part to some problems with the court’s computer system, about this letter and the request denial, I’ve known for a few weeks now that Phil Berg intended to subpoena several entities with regard to documentation sought to support his allegations in his federal case against Barack Obama, the Democratic National Committee, and the Federal Election Commission. I kept quiet because Berg discussed this with me off the record, and I must honor that. Here’s what the letter said, for those who haven’t seen it elsewhere:
Dear Mr. Berg:
This is in response to your attempted service of subpoenae on the U.S. Dept. of State, Passport Services, Vital Records Section; the US Embassy Nairobi; and the U.S. Embassy Jakarta in connection with the above-referenced proceeding. Through the subpoenae, you are seeking passport application and citizenship-related information regarding Barrack [sic] Hussein Obama. For the reasons explained below, the Dept of State currently cannot respond to your request because it does not comply with applicable Dept. regulations, referenced below and attached.
The procedure by which a party seeking official information from a non-party federal agency is to request the information under the agency’s “Touhy” regulations. See United States ex rel. Touhy v. Ragen 340 U.S. 462 (1951) … Your requests do not comply with those requirements.
In addition to serving the Executive Office of the Office of the Legal Adviser, as required under 22 C.F.R. 172.2, the requests also must be set forth in writing, and with as much specificity as possible, the nature and relevance of the official information sought. 22 C.F.R. 172.5(a). This information is needed by the dept in order to make a determination as to whether it is appropriate to authorize the production of the requested information and documents. The only information you have included is a description of the records that you seek. There is no information as to how all the information requested is relevant to the proceedings. Because your request does not comply with the requirements in the Department’s regulations, we cannot comply and and no Department employee has been authorized to provide documents or any official information in connection with the proceeding.
Moreover, based on the description of the information that you seek, the records may be protected by the Privacy Act, 5 USC 552a. Under the Privacy Act, the Department may only be able to release such records with the written consent of the person to whom the record pertains. 5 USC 552a(b). Since you have not provided written consent on behalf of the individual to whom the records relate, we would be precluded by law from disclosing any Privacy Act protected information you requested.
For the foregoing reasons, please consider this letter as our written objection to the subpoena you have delivered and please be advised that no State Department records, to the extent any exist, can be produced to you pursuant to the above-reference subpoena.
Office of the Legal Adviser
U.S. Department of State
It wasn’t until after treating this matter as new information that I was informed of the nature of the letter. My initial inspection of the Opposition and Brief was performed on an advance copy. Therefore, I had seen an equivalent from Hawaii’s Kapo’laoni Hospital denying Berg’s request for documentation on HIPAA grounds because it was on the court’s Web site, but had not seen this one. There have been some problems with how the exhibits have been entered into the court’s computer system, and this is no doubt a side effect.
Berg, via e-mail, confirmed that the letter is indeed Exhibit 7 — on the court’s system, Exhibit 7 comes up as a single page which simply says the words “Exhibit 5″ on it.
My mistake notwithstanding, I find it amazing that the State Department is asking for Berg to include written authorization from Obama for release of any records (though it admittedly is law under the Privacy Act), and find it equally amazing that they spelled Barack Obama’s name wrong.
I’ve received a number of e-mails and messages stating that the judge has decided on the matter, all linking to the PDF copy of an official court document.
The document in question is a PROPOSED ORDER. It is not a decision by the court, but rather a procedural mechanism included with motions to essentially “assume the sale,” to provide the judge with a place to theoretically sign off and decide in favor of the filing party.
As of 2:28 p.m. today, there has been no decision by Judge Surrick. If there is, you will be among the first to know, as I am plugged in enough at the courthouse to see such an order as soon as it comes down from the judge’s chambers.