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JW v. State search order 00692

JW v. State search order 00692

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Number of Pages:10

Date Created:August 8, 2017

Date Uploaded to the Library:August 09, 2017

Tags:mails, cross, 00692, Stein, Susan Rice, Sullivan, summary, search, Abedin, motion, Mills, order, responsive, Hillary Clinton, Benghazi, Secretary, clinton, filed, plaintiff, FBI, request, document, DOJ, records, FOIA, CIA


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Case 1:15-cv-00692-APM Document Filed 08/08/17 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
_________________________________________
Plaintiff,
U.S. DEPARTMENT STATE,
Defendant.
_________________________________________
JUDICIAL WATCH, INC.,
Case No. 15-cv-00692 (APM)
MEMORANDUM OPINION AND ORDER
INTRODUCTION
This case concerns Freedom Information Act FOIA request for former Secretary State Hillary Clinton e-mails related the September 11, 2012, attack the U.S. consulate Benghazi, Libya. Although this matter began with much fanfare, the only remaining dispute
whether Defendant Department State State conducted adequate search for records
responsive Plaintiff Judicial Watch, Inc. FOIA request. Because Secretary Clinton used
personal e-mail server for work-related communications, Plaintiff request caused State look
beyond its own e-mail servers for responsive records. State searched three external sources:
(1) cache approximately 30,000 e-mails turned over State Secretary Clinton;
(2) documents produced three her top aides Huma Abedin, former Deputy Chief Staff;
Cheryl Mills, former Chief Staff; and Jacob Sullivan, former Director Policy Planning; and
(3) the collection e-mails recovered the Federal Bureau Investigation FBI during its
investigation Secretary Clinton use personal e-mail server. Plaintiff asserts that State
search was deficient two respects. First, Plaintiff contends that State should have searched the
Case 1:15-cv-00692-APM Document Filed 08/08/17 Page
official state.gov e-mail accounts Abedin, Mills, and Sullivan identify responsive records.
Second, Plaintiff maintains that State also was required search e-mails that the FBI discovered the fall 2016 during unrelated investigation Abedin husband, Anthony Weiner. State,
for its part, defends the adequacy its searches and rejects Plaintiff assertion that additional
searches are likely unearth more responsive e-mails.
This matter before the court the parties cross-motions for summary judgment. The
court finds that State search was inadequate insofar did not search the official state.gov email accounts Secretary Clinton three aides, and orders State conduct supplemental search those accounts. With respect the e-mails more recently discovered the FBI, State has
agreed search those records another case pending this District; therefore, the court will
defer its ruling Plaintiff second challenge until State search those records complete.
Accordingly, the court grants the parties motions part and denies them part.
II.
BACKGROUND March 2015, Plaintiff Judicial Watch submitted FOIA request State, seeking:
Any and all e-mails former Secretary State Hillary Rodham
Secretary Clinton concerning, regarding, relating the
September 11, 2012 attack the U.S. Consulate Benghazi,
Libya.
The timeframe for this request September 11, 2012 January 31,
2013.
Def. Mot. for Summ. J., ECF No. [hereinafter Def. Mot.], Def. Stmt. Material Facts,
ECF No. 40-3 [hereinafter Def. Stmt.], Pl. Cross-Mot. for Summ. J., ECF No. 43, [hereinafter Pl. Resp.], Plaintiff sought the documents part its investigation into
Plaintiff Cross-Motion for Summary Judgment contains three documents: its Cross-Motion for Summary
Judgment, its Response Defendant Statement Material Facts, and its Statement Material Facts. The court
cites each document individually.
Case 1:15-cv-00692-APM Document Filed 08/08/17 Page
the Benghazi attack and the federal government public response. Pl. Cross-Mot. for Summ. J.,
ECF No. 43, [hereinafter Pl. Stmt.], After State did not respond Plaintiff
request within the statutorily-mandated period, Plaintiff filed this action. Compl., ECF No.
Thereafter, the parties agreed schedule which State would produce the requested e-mails.
Joint Status Report, July 15, 2015, ECF No. 10.
Secretary Clinton use personal e-mail server send and receive work-related
communications prevented recovery the requested material from State own servers. State
instead searched three sets records that received from other sources. First, searched
collection approximately 30,000 e-mails Secretary Clinton provided State December 2014 response its request for any federal records that she had her possession. Def. Stmt.
21; Pl. Resp. 21; Stein Decl. n.2. This search yielded 342 responsive documents, which State released 125 full and 217 part Plaintiff. Def. Stmt. 27, 30; Pl.
Resp. 27, 30. Second, State searched documents received from three Secretary
Clinton top aides: Huma Abedin, former Deputy Chief Staff; Cheryl Mills, former Chief
Staff; and Jacob Sullivan, former Director Policy Planning. Def. Stmt. 22; Pl. Resp. 22; Stein Decl. nn. State had asked these individuals turn over any e-mails
other records concerning official government business sent received personal e-mail
account while serving their official capacities with State. Def. Mot., Decl. Eric Stein,
ECF No. 40-4 [hereinafter Stein Decl.], nn. This search yielded one additional
responsive document, which State released part. Def. Stmt. 32; Pl. Resp. 32. Third, March 2015, Plaintiff submitted second FOIA request State seeking all communications between State
officials, officers, employees and members Congress and congressional staff related the use non-state.gov
e-mail addresses Secretary Clinton from June 2014 the present. Answer, ECF No. Ex. ECF No. 6-2.
Plaintiff does not challenge State response that request, see Pl. Cross-Mot. for Summ. J., ECF No. [hereinafter
Pl. Mot.], n.1, the court grants Defendant Motion for Summary Judgment with respect that request.
Case 1:15-cv-00692-APM Document Filed 08/08/17 Page
State searched the collection e-mails that the FBI recovered during its investigation Secretary
Clinton use personal e-mail server. Def. Stmt. 34; Pl. Resp. 34; Second
Stein Decl. This search yielded three additional responsive documents, which State
released part. Def. Stmt. 36; Pl. Resp. 36. total, State provided 348 documents Plaintiff, producing 125 full and 223 part. Def. Stmt. 27, 30, 32, 36; Pl. Resp.
27, 30, 32, 36.
III.
LEGAL STANDARD
Most FOIA cases are appropriately resolved motions for summary judgment. Brayton Office the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). court must grant motion
for summary judgment the movant shows that there genuine dispute any material
fact and the movant entitled judgment matter law. Fed. Civ. 56(a). dispute genuine only reasonable fact-finder could find for the nonmoving party, and fact
material only capable affecting the outcome litigation. Anderson Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Unlike the review other agency action that must upheld
supported substantial evidence and not arbitrary capricious, the FOIA expressly places the
burden the agency sustain its action and directs the district courts determine the matter novo. U.S. Dep Justice Reporters Comm. for Freedom the Press, 489 U.S. 749, 755
(1989) (quoting U.S.C. 552(a)(4)(B)).
State moves for summary judgment its withholdings. With one exception, Plaintiff did not contest those
withholdings and, therefore, the court grants summary judgment favor State those matters. the one
exception, Plaintiff initially challenged State invocation the deliberative process privilege under Exemption
withhold single e-mail communication between Secretary Clinton and Jacob Sullivan, which concerned Ambassador
Susan Rice statements the media following the Benghazi attack. See Pl. Mot. 14. That challenge,
however, now moot. Joint Status Report, Aug. 2017, ECF No. 47, State disclosed the e-mail issue the
Select Committee Benghazi, and although State asked the Committee not publicly release the e-mail contents,
the Committee nevertheless quoted the e-mail full its final report. Id. Although State maintains that the
Committee disclosure does not constitute waiver its right assert Exemption exercise its discretion,
State released the e-mail full Plaintiff. Id. Accordingly, the parties agree that dispute remains over the
challenged withholding. Id.
Case 1:15-cv-00692-APM Document Filed 08/08/17 Page court may grant summary judgment FOIA case based solely the information
provided agency supporting affidavits declarations those affidavits declarations are
relatively detailed and non-conclusory. SafeCard Servs., Inc. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (internal quotation marks omitted). The agency affidavits declarations must
describe the documents and the justifications for nondisclosure with reasonably specific detail
[and] demonstrate that the information withheld logically falls within the claimed exemption.
Military Audit Project Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Further, they must not
controverted either contrary evidence the record [or] evidence agency bad faith. Id.
Agency affidavits are entitled presumption good faith, which cannot rebutted purely
speculative claims about the existence and discoverability other documents. SafeCard Servs.,
926 F.2d 1200 (quoting Ground Saucer Watch, Inc. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
Ultimately, agency justification for invoking FOIA exemption sufficient appears
logical plausible. Judicial Watch, Inc. U.S. Dep Def., 715 F.3d 937, 941 (D.C. Cir.
2013) (internal quotation marks omitted).
IV.
DISCUSSION
The sole remaining dispute this case the adequacy State search for responsive
records. Plaintiff contends that State search was inadequate because State neglected search
the official state.gov e-mail accounts Huma Abedin, Cheryl Mills, and Jacob Sullivan. Pl.
Cross-Mot. for Summ. J., ECF No. [hereinafter Pl. Mot.], Further, Plaintiff maintains
that State must search the e-mails that the FBI recovered last fall during unrelated investigation.
Id. 10. State counters that not required search either the former officials e-mail accounts the newly discovered records because, its view, searching these other sources unlikely
uncover additional documents. Def. Reply, ECF No. [hereinafter Def. Reply],
Case 1:15-cv-00692-APM Document Filed 08/08/17 Page
support its position, State notes that the two searches ran following its search approximately
30,000 e-mails provided Secretary Clinton yielded only four additional documents. Id.
Thus, State submits, conducting additional searches likely unfruitful. Id.
Records from the State.gov Accounts Abedin, Mills, and Sullivan
FOIA requires agency conduct search for responsive records that reasonably
calculated discover the requested documents. SafeCard Servs., 926 F.2d 1201. This standard
does not, however, evaluate the adequacy search its results. Rather, the adequacy
search determined the appropriateness [its] methods. Hodge FBI, 703 F.3d 575,
579 (D.C. Cir. 2013) (quoting Iturralde Comptroller the Currency, 315 F.3d 311, 315 (D.C.
Cir. 2003)). The adequacy-of-search inquiry, therefore, fact-dependent and governed
standard reasonableness. Truitt Dep State, 897 F.2d 540, 542 (D.C. Cir. 1990).
demonstrate that carried out adequate search, the agency must show that made good faith
effort conduct search for the requested records, using methods which can reasonably
expected produce the information requested. Oglesby U.S. Dep the Army, 920 F.2d 57, (D.C. Cir. 1990). Although agency need not move heaven and earth uncover every
conceivable responsive record, cannot conclude its search there are additional sources that
are likely turn the information requested. Valencia-Lucena U.S. Coast Guard, 180 F.3d
321, 326 (D.C. Cir. 1999) (internal quotation marks omitted). Ultimately, agency has complied
with FOIA can demonstrate beyond material doubt that its search was reasonably calculated uncover all relevant documents. Id. 325 (internal quotation marks omitted). the run-of-the-mill FOIA case, agency faced with request should able, with
high degree confidence, locate responsive materials searching its own records systems.
Upon receipt FOIA request, agency will determine which its records systems are likely
Case 1:15-cv-00692-APM Document Filed 08/08/17 Page contain responsive records, formulate strategy for how best identify such records from
within each relevant record system, and then search and collect the responsive materials.
But this matter far cry from typical FOIA case. Secretary Clinton used private email server, located her home, transmit and receive work-related communications during her
tenure Secretary State. Pl. Stmt. 13; Def. Reply, Def. Resp. Pl. Stmt.
Material Facts, ECF No. 44-1, [hereinafter Def. Resp.], 13. result, State
servers did not capture and store all the Secretary e-mails. True, communications between
Secretary Clinton and someone using state.gov e-mail account would have passed through and
presumably been saved State server. However, e-mail did not involve any state.gov user,
the message would have passed through only the Secretary private server and, therefore, would beyond the immediate reach State. Because this circumstance, unlike the ordinary case,
State could not look solely its own records systems adequately respond Plaintiff demand.
Rather, had to, and did, look other sources for the requested information.
Although State expanded its search beyond its own records system include review
records from certain non-State-controlled sources, FOIA requires more. true, State
asserts, that agency may halt its search additional searches are unlikely produce any
marginal return, Campbell DOJ, 164 F.3d 20, (D.C. Cir. 1998), and search not
unreasonable simply because fails produce all relevant records, Meeropol Meese, 790 F.2d
942, 952 (D.C. Cir. 1986). Yet, agency cannot limit its search only one record system there are others that are likely turn the information requested. Oglesby, 920 F.2d 68. date, State has searched only data compilations originating from outside sources Secretary
Clinton, her former aides, and the FBI. See Stein Decl. 14; Def. Mot., Decl. Eric Stein
Re: FBI Invest., ECF No. 40-5 [hereinafter Second Stein Decl.], has not, however, searched
Case 1:15-cv-00692-APM Document Filed 08/08/17 Page
the one records system over which has always had control and that almost certain contain
some responsive records: the state.gov e-mail server. Secretary Clinton sent e-mail about
Benghazi Abedin, Mills, Sullivan his her state.gov e-mail address, one them sent e-mail Secretary Clinton using his her state.gov account, then State server presumably
would have captured and stored such e-mail. Therefore, State has obligation search its
own server for responsive records. See Oglesby, 920 F.2d 68.
Admittedly, light State efforts date, there reasonable probability that the only
responsive e-mails stored State server are duplicates e-mails originating from the three
outside sources and, thus, have already been produced Plaintiff. State under obligation
produce duplicates, and Plaintiff does not contend otherwise. See Competitive Enter. Inst. Office Sci. Tech. Policy, No. 14-765, 2017 978971, (D.D.C. Mar. 12, 2017) (citing cases).
Yet, State has offered assurance that the three record compilations received, taken together,
constitute the entirety Secretary Clinton e-mails during the time period relevant Plaintiff
FOIA Request. Absent such assurance, the court unconvinced beyond material doubt that
search the state.gov accounts Abedin, Mills, and Sullivan unlikely produce any
marginal return.
State remaining argument does not change the court conclusion. State contends that
finding its search inadequate this case will create unworkable standard future FOIA
cases. Def. Reply n.3. According State, requiring search Secretary Clinton former
aides work accounts will force agencies faced with future FOIA request for official e-mails complete the unduly burdensome task search[ing] the e-mail accounts other officials who
likely communicated with the subject official. Id. (quoting Pl. Mot. 8). State concern,
however, overstates the consequence the court ruling. The court decision this case
Case 1:15-cv-00692-APM Document Filed 08/08/17 Page
premised specific fact pattern unlikely arise the future: the federal records relevant
Plaintiff request have come from diffuse sources outside the agency traditional record-keeping
systems. the ordinary FOIA case, contrast, government-controlled servers will contain the
relevant universe responsive e-mails, thereby allowing agencies formulate tailored searches,
using keywords and date restrictions, and targeting specific document custodians. Thus, the
ordinary case, there simply would need, State suggests, search the e-mail account
every official who happens e-mail. Thus, the court ruling does not create
unworkable and burdensome search obligation, State claims.
Accordingly, the court finds that State has not met its burden establishing performed adequate search response Plaintiff FOIA Request and orders State conduct
supplemental search the state.gov e-mail accounts Abedin, Mills, and Sullivan.
E-mails Discovered During Unrelated FBI Investigation
The court declines, this time, order State search the e-mails that the FBI recovered
last fall during unrelated investigation. See Pl. Mot. 10. The court understands that State
has now received the e-mails question and the process producing them Plaintiff
parallel, ongoing litigation this District. See Notice Agreement, Judicial Watch, Inc. U.S.
Dep State, No. 15-cv-00687 (D.D.C. August 2017), ECF No. (representing that State
received these records for review and will process and produce them ongoing litigation before
Chief Judge Howell); Joint Status Report, Judicial Watch, Inc. U.S. Dep State, No. 15-cv00684 (D.D.C. July 31, 2017), ECF No. (representing that State received records and noting
that the parties plan propose production schedule later than October 2017). Accordingly,
Case 1:15-cv-00692-APM Document Filed 08/08/17 Page
the court sees need rule search issue that might become moot the near future and
defers making any judgment until the related search comes close.
CONCLUSION AND ORDER
For the foregoing reasons, the court grants State Motion for Summary Judgment with
regard all withholdings, but denies its Motion with regard the adequacy the search.
Plaintiff Motion for Summary Judgment granted insofar the court orders State search the
state.gov e-mail accounts Huma Abedin, Cheryl Mills, and Jacob Sullivan for records
responsive Plaintiff March 2015, FOIA request.
The court will retain jurisdiction over this matter. before September 22, 2017, the
parties shall submit Joint Status Report that updates the court (1) State search the state.gov
e-mail accounts Abedin, Mills, and Sullivan, and (2) State review and production the emails recently received from the FBI. any dispute remains regarding State compliance with
its obligations under FOIA, the parties shall propose briefing schedule.
Dated: August 2017
Amit Mehta
United States District Judge