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JW v State new documents 01363

JW v State new documents 01363

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Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
UNITED STATES DEPARTMENT
STATE,
Defendant.
Civil Action No. 13-CV-1363 (EGS)
DEFENDANT MEMORANDUM POINTS AND AUTHORITIES OPPOSITION PLAINTIFF MOTION FOR DISCOVERY
PURSUANT RULE 56(D) THE FEDERAL RULES CIVIL PROCEUDRE
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
TABLE CONTENTS
INTRODUCTION.........................................................................................................................
BACKGROUND ...........................................................................................................................
STANDARD REVIEW ..........................................................................................................
ARGUMENT .................................................................................................................................
Plaintiff Has Not Demonstrated That Needs Discovery Challenge The
Reasonableness State Search For Responsive Documents. ...................................
II.
Plaintiff Should Not Allowed Convert This FOIA Suit Into Action
Under The Federal Records Act. ...................................................................................
III.
Plaintiff Proposed Discovery Irrelevant Because Plaintiff Concedes The
State Department Lacked Custody Control Former Secretary
Clinton Emails When Plaintiff Submitted Its FOIA Request. .................................
CONCLUSION ...........................................................................................................................
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
INTRODUCTION
This Freedom Information Act FOIA case was reopened June 2015 that the
State Department State could search for records responsive Plaintiff FOIA request
approximately 55,000 pages work-related emails that former Secretary State Hillary
Clinton had recently provided State from her personal email server, clintonemail.com the
Clinton e-mails State searched those emails, and non-state.gov emails provided certain
other former State Department officials, and has now produced all retrieved non-exempt
records that were responsive Plaintiff narrow FOIA request (which concerns the
employment status former State Department employee Huma Abedin). State voluntarily
agreed search the approximately 55,000 pages emails even though (1) Plaintiff itself has
repeatedly conceded that State lacked possession control these emails the time Plaintiff
submitted its FOIA request, see, e.g., Pl. Mot. 19, 25, and (2) Supreme Court precedent
squarely holds that agency does not withhold violation FOIA records that did not
possess control the time the request was submitted. See Kissinger Reporters Comm. for
Freedom the Press, 445 U.S. 136, 150-51 (1980) Congress did not mean that agency
improperly withholds document which has been removed from the possession the agency
prior the filing the FOIA request, because [i]n such case, the agency has neither the
custody control necessary enable withhold. searching records that did not control possess the time the request was
submitted, State has already gone above and beyond the requirements FOIA. Plaintiff has
nevertheless filed motion under Rule 56(d), contending that Plaintiff needs conduct broad
and burdensome discovery regarding matters that have bearing this narrow FOIA dispute.
The Court should deny Plaintiff motion for multiple reasons. Most fundamentally, Plaintiff
argument that needs discovery determine whether State conducted adequate search when
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page did not search clintonemail.com itself mistaken:
State searched the records from
clintonemail.com that are reasonably likely contain information responsive Plaintiff FOIA
request i.e., the emails from clintonemail.com that former Secretary Clinton and Ms. Abedin,
who also had account clintonemail.com, determined were federal records potential
federal records and provided State. Nothing FOIA any other federal statute suggests that
State search was legally inadequate. Plaintiff complaint that the e-mails were self-selected former Secretary Clinton and Ms. Abedin ignores the fact that federal employees routinely
manage their email and self-select their work-related messages when they, quite permissibly,
designate and delete personal emails from their government email accounts.
The ultimate relief that Plaintiff apparently seeks order compelling third parties
produce additional documents, see Pl. Mot. also exceeds the bounds FOIA and
therefore cannot justify discovery this FOIA case. Plaintiff essence seeks convert this
discrete suit about whether State adequately searched for records regarding Ms. Abedin
employment status into far-ranging inquiry about whether the agency complied with its
obligations under the Federal Records Act (FRA). But even putting aside the question
whether private party would ever entitled such discovery, Plaintiff efforts are misplaced
because there FRA claim this case. Plaintiff has sued State under the FRA, but
separate case pending before Judge Boasberg. See Judicial Watch, Inc. Kerry, No. 15-0785JEB (D.D.C). There legal basis practical justification for seek FRA relief (or
discovery focused FRA issues) here.
Beyond these issues, the legal theory upon which Plaintiff grounds its request for
discovery baseless. Plaintiff states that Mrs. Clinton took the clintonemail.com system with
her when she left the State Department, Pl. Mot. 19, which occurred more than three
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
months before Plaintiff submitted its FOIA request. Thus, putting aside the question whether
State ever had possession control over the clintonemail.com system the first place, the
agency unequivocally did not possess control when Plaintiff FOIA request was submitted.
Under Kissinger, the agency cannot have violated FOIA withholding documents that did
not possess control.
Plaintiff relies Kissinger footnote nine contend that needs discovery
determine the agency sought thwart FOIA general matter, such that Kissinger
holding might not apply. See, e.g., Pl. Mot. This footnote, however, simply states that the
Court need not decide and would express opinion whether the Court holding
would apply where was shown that agency official purposefully routed document out
agency possession order circumvent FOIA request where documents have been
wrongfully removed individual after request filed. Kissinger, 445 U.S. 155 n.9.
The footnote leaves question open; provides affirmative support for Plaintiff. summary, the discovery that Plaintiff proposes not relevant the issues remaining this case and not supported the legal theory that Plaintiff advances. The Court should
deny Plaintiff Rule 56(d) motion.
BACKGROUND
Judicial Watch submitted FOIA request State May 21, 2013, seeking certain
personnel records concerning Ms. Abedin. Specifically, Judicial Watch requested any SF-50
(Notification Personnel Action) forms for Ms. Abedin; any contracts (including, but not
limited to, personal service contracts) between State and Ms. Abedin; and any records regarding related the authorization for Ms. Abedin represent individual clients otherwise engage outside employment while employed engaged contractual arrangement with State.
See Complaint (ECF No.
State searched for responsive records and released all
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
responsive, non-exempt records that located. March 14, 2014, Judicial Watch dismissed
the case with prejudice. ECF No. 12. November 2014, State wrote the representative former Secretary Clinton, well representatives other former Secretaries State, and asked them pursuant the Federal
Records Act assist State complying with guidance from the National Archives and Record
Administration (NARA), Bulletin 2013-03, which post-dated [their] service State and
clarified records management responsibilities regarding the use personal email accounts for
official government business. ECF No. 18-1. Specifically, State asked that should former
Secretary Clinton aware federal record, such email sent received personal
email account while serving Secretary State, that copy the record provided State, there reason believe that may not otherwise preserved State recordkeeping
system. Id. response this request, December 2014, former Secretary Clinton provided
State with approximately 55,000 pages emails sent received her while she was Secretary State. Hackett Decl. (ECF No. 14-1). Former Secretary Clinton subsequently stated
sworn declaration that she directed that all her emails clintonemail.com her custody that
were potentially were federal records provided State and that, information and belief,
this had been done. Clinton Declaration (Aug. 2015) (ECF No. 22-1). March 2015, State
wrote Ms. Abedin and Ms. Mills and made the same request them pursuant the FRA.
ECF No. 18-1. From June September 2015, Ms. Abedin and Ms. Mills provided emails from
their non-state.gov email accounts State rolling basis. See ECF Nos. 18-1, 20,
(Ms. Abedin, but not Ms. Mills, had account clintonemail.com. See Aug. 2015 Status
Report Ex. (ECF No. 20-1 20).)
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
After news the Clinton emails broke March 2015, Judicial Watch sought reopen
this case, and State agreed. ECF No. 14. Since the case was reopened, State has performed
number additional searches and provided detailed information Judicial Watch. State
voluntarily agreed search the emails provided former Secretary Clinton, Ms. Abedin, and
Ms. Mills; re-searched the offices and agency records systems had originally searched; and
searched the Office the Under Secretary for Management. Def. Oct. 2015 Status Report
(ECF No. 40) Third Hackett Decl. (ECF No. 47-2) 10.
State produced all responsive, non-exempt records located Judicial Watch, releasing documents (consisting pages) September 18, 2015, and four documents (consisting pages) October 13, 2015. See Sept. 21, 2015 Status Report (ECF No. 37) Third
Hackett Decl. 10-11. addition, November 12, 2015, State re-released three documents
with certain redactions removed, order release additional information. Third Hackett Decl.
12. November 13, 2015, State released two documents full and released one document part that had previously been withheld. Id. 13. State withheld two documents full,
pursuant FOIA Exemption two OGE Form 450s. Id. 48. responsive documents
were located within the Clinton emails. November 13, 2015, State moved for summary judgment, contending that had made
legally sufficient searches and productions all documents within its custody control. See
ECF No. Def. Mot. ).1 lieu responding this motion the merits, Plaintiff has
filed motion for discovery under Rule 56(d). There are multiple steps Plaintiff theory
After State filed its motion for summary judgment this case, State located additional sources documents that originated within the Office the Secretary that are reasonably likely
contain records responsive Plaintiff request. State has informed Plaintiff that intends
search these locations, produce non-exempt portions any responsive records, and file
supplemental declaration support its motion for summary judgment (which presently
stayed).
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
why needs discovery order oppose the Government motion. Plaintiff claims that State
failed search relevant record system failing search clintonemail.com. Recognizing that
State did not possess control clintonemail.com when Plaintiff submitted its FOIA request,
Plaintiff seeks rely footnote Kissinger, footnote nine, which the Court stated that
need not decide whether its holding i.e., that agency can only withhold for purposes
FOIA request records its possession control the time the request would apply
agency official purposefully routed document out agency possession order circumvent FOIA request. 445 U.S. 155 n.9. Plaintiff argues needs discovery determine whether
this case fits within footnote nine. See, e.g., Pl. Mot. 18-19, 22.
STANDARD REVIEW court may issue relief pursuant Rule 56(d) [i]f nonmovant shows affidavit
declaration that, for specified reasons, cannot present facts essential justify its opposition.
Fed. Civ. 56(d). prevail, Rule 56(d) movant must establish reasonable basis
believe that discovery would reveal triable issues fact, see Messina Krakower, 439 F.3d
755, 762 (D.C. Cir. 2006), and must submit affidavit which states with sufficient
particularity why additional discovery necessary. U.S. rel. Folliard, 764 F.3d 19, (D.C.
Cir. 2014) (quoting Convertino U.S. Dep Justice, 684 F.3d 93, (D.C. Cir. 2012)).
Speculation and conjecture are not sufficient obtain discovery under Rule 56(d). See,
e.g., Messina, 439 F.3d 762 (affirming denial request for Rule 56(d) discovery where the
requesting party has offered only conclusory assertion without any supporting facts justify
the proposition that the discovery sought will produce the evidence required (citation omitted)).
Discovery not permissible FOIA case when would only afford[] [the plaintiff]
opportunity pursue bare hope falling upon something that might impugn the [agency
affidavits. Military Audit Project Casey, 656 F.2d 724, 751-52 (D.C. Cir. 1981) (quoting
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
Founding Church Scientology NSA, 610 F.2d 824, 836-37 n.101 (D.C. Cir. 1979)); see also,
e.g., Kay FCC, 976 Supp. 23, n.35 (D.D.C. 1997) (denying plaintiff request for
discovery FOIA case where the plaintiff impermissibly [sought] discovery means
discredit the [agency declarations aff 172 F.3d 919 (D.C. Cir. 1998) (per curiam).2
Under Rule 56(d) and otherwise, the D.C. Circuit has repeatedly recognized,
[d]iscovery FOIA rare and should denied where agency declarations are reasonably
detailed, submitted good faith and the court satisfied that factual dispute remains.
Baker Hostetler, LLP Dep Commerce, 473 F.3d 312, 318 (D.C. Cir. 2006) (quotation
omitted); see also, e.g., Military Audit Project, 656 F.2d 751-52; Thomas Dep Health
Human Servs., 587 Supp. 114, 115 n.2 (D.D.C. 2008); Canning DOJ, No. 11-cv-1295,
2013 1333422, (D.D.C. Apr. 2013); Asarco, Inc. EPA, No. 08-cv-1332, 2009
1138830, (D.D.C. Apr. 28, 2009) (citing the consistent holding case after case that
discovery not favored [FOIA] cases and only allowed under rare circumstances.
ARGUMENT
Plaintiff Has Not Demonstrated That Needs Discovery Challenge The
Reasonableness State Search For Responsive Documents. seeking discovery under Rule 56(d), Plaintiff states that the sole issue dispute the
adequacy State search for records responsive its FOIA request, i.e., records concerning
the employment status Ms. Abedin. See Declaration Michael Bekesha Support
Plaintiff Motion for Discovery Bekesha Decl. (ECF No. 48-1) What remains issue this case whether Defendant has conducted search reasonably calculated uncover all
See also, e.g., Exxon Corp. FTC, 663 F.2d 120, 128 (D.C. Cir. 1980) (upholding denial
FOIA Plaintiff request for discovery under former Rule 56(f) because [i]t not the intent
Rule preserve purely speculative issues fact Wright Miller, 10B Fed. Prac. Proc.
Civ. 2741 (3d ed.) [T]he hope hunch that evidence creating issue fact will emerge insufficient.
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
relevant records. The standard for determining the adequacy State search whether the
search was reasonably calculated discover the requested documents, not whether actually
uncovered every document extant. Safecard Servs., Inc. SEC, 926 F.2d 1197, 1201 (D.C. Cir.
1991); accord, e.g., Morley CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007). detailed State
summary judgment motion, State has taken reasonable steps respond Plaintiff FOIA
request, including searching the emails former Secretary Clinton and Ms. Abedin provided the
entirety their federal records potential federal records from clintonemail.com.3 result,
not searching clintonemail.com itself, even State had possession control
possession control were not required, was manifestly reasonable. initial matter, Plaintiff does not claim need any discovery challenge the legal
sufficiency State search the records that actually has; only challenge State
failure search clintonemail.com, which State does not have. But even State did have
possession control clintonemail.com, possession control were not required (the
ultimate question which Plaintiff discovery seems directed), still would have been
reasonable for State limit its search emails those that the former Secretary (or her
designee) determined were federal records appropriate for retention. Federal employees are
responsible for determining whether their own emails are federal personal records. Agency
State also conducted revised search its records systems, using search terms and date
range agreed upon the parties. See Def Oct. 2015 Status Report (ECF No. 40) State
re-searched the four offices and agency records systems had originally searched (the Bureau
Human Resources, the Office the Executive Secretariat, the Office the Legal Adviser, and
the Central Foreign Policy Records), and also searched the Office the Under Secretary for
Management. Third Hackett Decl. 10. State also provided information about any servers,
accounts, hard drives, other devices that may contain records responsive the FOIA request.
ECF No. 26-1; ECF No. 29-1 (Declaration Joseph Macmanus). State also sent two letters the FBI (the first one pursuant Court order) requesting, among other things, that the FBI
inform State about any recovered federal records that correspond with Secretary Clinton tenure State and preserve any recoverable media and content.
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
employees, including FOIA personnel, then typically conduct searches employees selfselected federal records, potential federal records, for records responsive particular FOIA
request (see Pl. Mot. 8-10) precisely what happened here.
Under policies issued both NARA and the State Department, individual officers and
employees are expected exercise judgment determine what constitutes federal record,
including when comes managing their email. See NARA Bulletin 2014-06 (Sept. 15,
2014), available http://www.archives.gov/records-mgmt/bulletins/2014/2014-06.html [I]n
many agencies, employees manage their own email accounts and apply their own understanding Federal records management. This means that all employees are required review each
message, identify its value, and either delete move recordkeeping system. Dep
State Foreign Affairs Manual, FAM 443.2(b), available https://fam.state.gov/FAM/05FAM/
05FAM0440.html The intention this guidance not require the preservation every Email message. Personal files, defined documentary materials belonging individual
that are not used conduct agency business, are regulation excluded from the definition
Federal records and are not owned the Government. C.F.R. 1220.18. Accordingly,
[e]-mail message creators and recipients must decide applying the same judgment they use
when determining whether retain and file paper records whether particular message
appropriate for preservation. Dep State Foreign Affairs Manual, supra, FAM 443.2(b). doing, they facilitate the preservation those messages that contain information that
necessary ensure that departmental policies, programs, and activities are adequately
documented, id., while making sure that personal files are not unnecessarily and wastefully
retained.
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
Consistent with these government-wide policies and practices, former Secretary
Clinton had used state.gov email account, would have been reasonable for State, when
searching for documents responsive Plaintiff FOIA request, search only those emails that
former Secretary Clinton (or her designee) considered federal records potential federal records
(and thus did not delete). State would have reason believe that emails responsive Ms.
Abedin State Department employment status the subject Plaintiff FOIA request
would located emails former Secretary Clinton deleted personal, whether those emails
were from clintonemail.com state.gov. And the agency would not required recover
search those deleted emails, they would not likely turn the information requested.
Oglesby Dep the Army, 920 F.2d 57, (D.C. Cir. 1990).
The fact that Secretary Clinton received assistance with the task identifying those
emails that are federal records potential federal records does not affect the reasonableness
State search. She might have (and, given her position, likely would have) received similar
assistance she had used state.gov email account. Nor does matter for purposes this
FOIA case (and Plaintiff discovery motion) that Mrs. Clinton her designees reviewed the
clintonemail.com emails and identified federal records potential federal records after Mrs.
Clinton had left office. remained reasonable for State rely former Secretary Clinton
make the determination which her own emails were potentially were federal records. sum, that State only searched the e-mails that former Secretary Clinton determined
were federal records does not suggest need for extraordinary remedies under FOIA. See
Competitive Enter. Inst. NASA, 989 Supp. 74, (D.D.C. 2013) CEI argues that the
search was unreasonable because NASA did not explain how Dr. Schmidt preserves his
emails. However, the issue whether NASA adequately searched for emails existence, not
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
whether searched all emails that ever existed. id. (no FOIA violation even though Dr.
Schmidt search [for responsive emails] was not reviewed observed agency official
II.
Plaintiff Should Not Allowed Convert This FOIA Suit Into Action Under
The Federal Records Act. seeking discovery, Plaintiff not actually contending that the State Department has
withheld documents that possessed controlled when Plaintiff submitted its FOIA request,
even that the search State conducted the later-acquired e-mails was unreasonable. Plaintiff
instead focuses the contention that the State Department allowed former Secretary Clinton
use her personal email server the first place, and then take records with her when she
resigned Secretary State. See, e.g., Pl. Mot. [T]he State Department appears
have allowed Mrs. Clinton leave the agency without providing inventory the records
the system ensuring access all federal records the system. id. (similar); id.
(similar). Plaintiff suggests that compelling need exists restore the integrity the FOIA
process the State Department, Pl. Mot. asserts need develop facts determine
whether State and former Secretary Clinton deliberately thwarted FOIA; and seeks conduct
comprehensive, wide-ranging discovery into numerous topics, including how and why the
clintonemail.com system was created, how was used, the disposition the system when
former Secretary Clinton departed from State, and the management and preservation the
system after former Secretary Clinton left State. Pl. Mot. 23-30.
This case, and FOIA generally, are the wrong vehicles explore and address any such
concerns. The ultimate substantive relief which such discovery would appear directed
would order compel[ling] production illegally withheld records from nonparties
which the agency transferred the records. Pl. Mot. But that remedy not available
under FOIA. the Federal Records Act, not FOIA, that governs the creation, management,
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
and disposal federal records. Armstrong Bush, 924 F.2d 282, 284 (D.C. Cir. 1991); see
also Kissinger, 445 U.S. 154 clear that Congress never intended when enacted the
FOIA, displace the statutory scheme embodied the Federal Records Act and the Federal
Records Disposal Act providing for administrative remedies safeguard against wrongful
removal agency records well retrieve wrongfully removed records. And the
Federal Records Act, not FOIA, that authorizes the Archivist [to] initiate action through the
Attorney General for the recovery records the head the Federal agency knows has reason believe have been unlawfully removed from that agency. U.S.C. 3106(a).
The D.C. Circuit has recognized cause action under the Administrative Procedure
Act challenge certain agency actions inactions related responsibilities under the Federal
Records Act, and Plaintiff has filed such action challenging the sufficiency State actions retrieve former Secretary Clinton emails. See Judicial Watch, Inc. Kerry, No. 15-0785JEB (D.D.C). Plaintiff believes that further steps need taken recover those records,
may make those arguments Judge Boasberg that case. They are not relevant here, and thus
cannot serve the basis for discovery. Cf., e.g., Competitive Enter. Inst. Office Sci.
Tech. Pol Supp. 228, 234 (D.D.C. 2015) (explaining that the plaintiff worries that government employees personal email accounts are not subject FOIA, agency officials will
escape FOIA coverage altogether conducting government business with their personal
accounts was baseless because the Federal Records Act, not FOIA, the relevant statute). for Plaintiff desire restore the integrity the FOIA process the State
Department, Pl. Mot. doubtful that any litigation the appropriate mechanism for
seeking such reforms. Article III courts exist resolve concrete cases and controversies,
U.S. Const. art. III, sec. limitation founded concern about the proper and properly
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
limited role the courts democratic society. Warth Seldin, 422 U.S. 490, 498 (1975). contrast, the State Department Office Inspector General OIG tasked statute with
conducting the systematic review and evaluation the administration activities and
operations Foreign Service posts and bureaus and other operating units the Department
State, U.S.C. 3929(b), including whether the administration activities and operations
meets the requirements applicable laws and regulations. Id. 3929(b)(3). Defendant has previously explained, the Inspector General currently reviewing
State policies and procedures concerning the use prior Secretaries and their immediate staffs non-departmental hardware and software conduct official business, including efforts
undertaken State ensure that: (i) communications were and are conducted securely; (ii)
government records were and are properly identified and preserved; and (iii) government records
were and are properly processed pursuant the FOIA. See generally Def. Sept. 21, 2015
Status Report (ECF No. 37) June 2015, OIG and the Intelligence Community Inspector
General ICIG also conducted review the process that State was using release former
Secretary Clinton emails under the FOIA. And January 2016, OIG issued report
making additional recommendations with respect State FOIA processes. See Office
Evaluation and Special Projects: Evaluation Department State FOIA Processes for
Requests Involving the Office the Secretary (Jan. 2016), https://oig.state.gov/system/files/esp16-01.pdf. This report further notes that OIG plans report separately issues associated
with the use non-Departmental systems conduct official business and records preservation
requirements.
Id. light the participation the Inspector General, Plaintiff
suggestion that discovery needed order restore the integrity the FOIA process the
State Department, Pl. Mot. falls flat.
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
III.
Plaintiff Proposed Discovery Irrelevant Because Plaintiff Concedes The State
Department Lacked Custody Control Former Secretary Clinton Emails
When Plaintiff Submitted Its FOIA Request.
Kissinger squarely holds that even document requested under the FOIA
wrongfully the possession party not agency, the agency which received the request
does not improperly withhold those materials its refusal institute retrieval action.
Kissinger, 445 U.S. 139 (emphasis added). Congress did not mean that agency improperly
withholds document which has been removed from the possession the agency prior the
filing the FOIA request, because [i]n such case, the agency has neither the custody
control necessary enable withhold. Kissinger, 445 U.S. 150-51. Rather, withholding
presupposes the actor possession control the item withheld, and refusal resort
legal remedies obtain possession simply not conduct subsumed the verb withhold. Id. 151.
Plaintiff concession that the State Department did not possess former Secretary
Clinton emails the time Plaintiff submitted its FOIA request, more than three months after
she left the State Department, should dispositive. See Pl. Mot know Mrs.
Clinton left with the clintonemail.com system and all records located the end her
tenure. Plaintiff seeks distinguish Kissinger relying upon the decision footnote nine,
which provides follows:
There question that withholding must here gauged the time
which the request made since there FOIA obligation retain records prior that request. This temporal factor has always governed requests under the
subpoena power, Jurney MacCracken, 294 U.S. 125 (1935), well under
other access statutes. See Fed. Rules Civ. Proc. 34, 45. need not decide
whether this standard might displaced the event that was shown that
agency official purposefully routed document out agency possession order circumvent FOIA request. such issue presented here. also express opinion whether agency withholds documents which have been
wrongfully removed individual after request filed.
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
445 U.S. 155 n.9 (emphasis added). Plaintiff seizes this language argue that [b]efore
the Court can determine whether the State Department belated search only self-selected
portion the records from Mrs. Clinton off-grid system satisfied FOIA, first must decide
whether Mrs. Clinton and the State Department deliberately thwarted FOIA creating, using,
and concealing the system. Pl. Mot.
Plaintiff argument misplaced. threshold matter, the footnote does not itself
create any exception the possession-or-control requirement Kissinger, but simply reserves
issues not presented that case including the proper disposition FOIA suit which
agency official engaged purposeful[] circumvent[ion] FOIA request. Furthermore,
that unresolved scenario not presented this case, Plaintiff FOIA request did not exist
the time clintonemail.com was, according Plaintiff theory, routed out agency possession
when former Secretary Clinton resigned and allegedly took with her.
Plaintiff errs relying footnote nine read FOIA effectively imposing requirement that federal agencies retain
any and all records that might conceivably responsive some future, not yet filed, FOIA
request. Rather, described Section II, supra, the Federal Records Act comprehensively
governs agencies management, retention, and disposal their records. Kissinger
recognized, FOIA does not obligate agencies create retain documents; only obligates
them provide access [in response FOIA request] those which fact has created and
retained. Kissinger, 445 U.S. 152; accord, e.g., Vaughn Danzig, App 122, 125
(4th Cir. 2001) (destruction record before FOIA request filed did not violate the law,
agencies are not required retain records the possibility that FOIA Privacy Act request
may submitted. (citing Kissinger, 445 U.S. 155 n.9)). FOIA triggered the submission request for records; imposes relevant obligations before the submission such request;
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
and does not give requestor any right relief (or discovery) regarding matters that pre-date the
request submission.
Indeed, Kissinger, the Court found that FOIA provided remedy notwithstanding
evidence suggesting that Secretary Kissinger had routed his telephone notes out agency
possession avoid public disclosure, including his deeding the notes the Library Congress
with significant restrictions public access. See 445 U.S. 141-42. And Kissinger fact
declined adopt the argument, raised the plaintiffs that case, that exception the
possession control requirement needs made when agency seeks circumvent FOIA general.
See, e.g., Kissinger, Brief for Respondents and Cross-Petitioners Reporters
Committee for Freedom the Press, 1979 199434, *81 (1979) (charging that
government reading would create dangerous mechanism for circumventing the broad
disclosure obligations that the FOIA creates. id. *86 The FOIA objective full
disclosure government information could easily evaded the Act ceased apply once
records owned the agency were removed from its physical custody. Agency employees could
simply take home store with friends documents that they considered politically sensitive
personally embarrassing The practical effect condoning such stratagems would
create additional exemption from the Act for documents that government officials and their
superiors, for personal political reasons, not wish disclose.
Although Justices
Brennan and Stevens would have adopted that argument some form, they recognized that the
Court itself did not. See, e.g., Kissinger, 445 U.S. 159 (Brennan, J., concurring part and
dissenting part) (disagreeing with minimal rule footnote nine: agency would
improperly withholding documents failed take steps recover papers removed from its
custody deliberately evade FOIA request id. 161 (Stevens, J., concurring part and
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
dissenting part) (charging that Court decision creates incentive for outgoing agency
officials remove potentially embarrassing documents from their files order frustrate
future FOIA requests
Nor does Plaintiff broad reading FOIA find support post-Kissinger case law.
case, including any case located Plaintiff, stands for the proposition that agency withholds document does not possess whenever the agency was seeking, general matter, avoid
public disclosure. Indeed, one the primary cases upon which Plaintiff relies and which
was party directly the contrary. See Judicial Watch, Inc. Dep Commerce,
Supp. 28, (D.D.C. 1998) The clear implication [from Kissinger] that the status
particular document the time the FOIA request submitted determines whether the
unreasonable failure produce that document unlawful withholding. the document
removed before filing the request, then failure produce not improper withholding. contrast, the document removed after the filing the request, failure produce
improper withholding. ).4 Plaintiff other cases are the same effect. See, e.g., DiBacco
U.S. Army, 795 F.3d 178, 192 (D.C. Cir. 2015) The general rule that agency may not
avoid FOIA request intentionally ridding itself requested document. (emphasis Judicial Watch, the court determined that after the Commerce Department received the
FOIA requests issue, [d]ocuments were destroyed, discarded, and given away, sometimes
without being searched determine they were responsive, other times with full knowledge
that they were responsive. Supp. 45. The court granted plaintiff request for
further discovery, allowing plaintiff inquire into any discoverable information related the
destruction removal documents after its first FOIA request was filed. Id. 46. Here,
Plaintiff submitted the FOIA request more than three months after former Secretary Clinton
final day Secretary State. consequence, Plaintiff allegations cannot amount bad
faith State with respect the processing its FOIA request. See CareToLive FDA, 631
F.3d 336, 346 (6th Cir. 2011) (denying discovery; Accepting Dr. Pazdur uncontroverted
declaration that destroyed his copies these documents within one month receiving them,
there simply evidence that the documents were destroyed attempt keep them from
CareToLive when CareToLive did not file its request until more than two and half months after
Dr. Pazdur claims have destroyed them.
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
added)); Chambers U.S. Dep the Interior, 568 F.3d 998, 1004 (D.C. Cir. 2009) [A]n
agency not shielded from liability intentionally transfers destroys document after
has been requested under FOIA the Privacy Act. (emphasis added)); Nat Sec. Archive
Archivist the U.S., 909 F.2d 541, 546 (D.C. Cir. 1990) (denying relief under FOIA and
refusing consider the consequences purposefully rout[ing] document out agency
possession order circumvent FOIA request because plaintiff had not submitted proper
FOIA request (emphasis added)); SafeCard Servs., 926 F.2d 1201 (affirming district court
denial discovery and noting that [if] the agency longer possession the document,
for reason that not itself suspect, then the agency not improperly withholding that
document and the court will not order the agency take further action order produce it.
The case which Plaintiff relies most heavily, Landmark Legal Foundation EPA, 959 Supp. 175 (D.D.C. 2013); see also Supp. 211 (D.D.C. 2015), presents distinct
question from that presented this case. Landmark Legal Foundation, the agency did not
search the personal emails certain individuals who were employed the agency the time
the FOIA request was submitted. See Pl. Opp. Def. Mot. for Summ. J., Landmark Legal
Found. EPA, No. 12-1726, ECF No. (D.D.C. June 2013) (noting that Landmark
request was submitted four months prior Ms. Jackson departure Thus, even Landmark
Legal Foundation were correct that agency has custody control over its current employees
personal email accounts,5 Plaintiff itself says that Mrs. Clinton took the clintonemail.com
Other authority properly holds that agency does not possess the personal email accounts
its employees, see Competitive Enter. Inst. Office Sci. Tech. Pol Supp. 228
(D.D.C. 2015), appeal pending, and the issue now before the D.C. Circuit. See D.C. Cir. No.
15-5128. Unlike Landmark Legal Foundation, which does not acknowledge discuss the
Supreme Court Kissinger decision, Competitive Enterprise Institute properly informed
this binding precedent. any event, there reason for this Court reach out decide
issue that not present this case and currently before the D.C. Circuit.
Case 1:13-cv-01363-EGS Document Filed 01/08/16 Page
system with her when she left the State Department, Pl. Mot. 19, some three months before
Plaintiff submitted its request. Landmark Legal Foundation simply does not apply the facts
this case.
Finally, the Court should deny Plaintiff discovery motion because, practical matter,
there little substantive relief for the Court order, given everything that has gone this
case date and the limited nature relief available FOIA case. The Court has already
taken significant steps ensure that all federal records that could potentially responsive
Plaintiff FOIA request were turned over State, preserve any additional emails that might recoverable the FBI clintonemail.com, and request that the FBI inform State about
any recovered information that potentially relevant Plaintiff FOIA request.
CONCLUSION
Defendant respectfully requests that the Court deny Plaintiff Rule 56(d) motion.
DATED: January 2016
Respectfully submitted,
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Director
/s/ Steven Myers
PETER WECHSLER (MA 550339)
Senior Counsel
STEVEN MYERS (NY 4823043)
Trial Attorney
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Avenue, N.W.
Washington, D.C. 20530
Tel.: (202) 305-8648
Fax: (202) 616-8470
Email: steven.a.myers@usdoj.gov
Counsel for Defendant