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JW v State summary judgment motion 01242

JW v State summary judgment motion 01242

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Case 1:14-cv-01242-RCL Document Filed 07/07/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.
Plaintiff,
Civil Action No. 14-cv-1242 (RCL)
U.S. DEPARTMENT STATE,
Defendant.
DEFENDANT MOTION FOR SUMMARY JUDGMENT
Defendant, the United States Department State, respectfully moves for summary
judgment pursuant Federal Rule Civil Procedure and Local Rule The reasons for this
Motion are set forth the Memorandum Points and Authorities Support Defendant
Motion for Summary Judgment, the Statement Material Facts Which There
Genuine Issue, and the Declaration John Hackett (as well the exhibits thereto).
proposed order filed concurrently herewith.
Dated: July 2015
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
ELIZABETH SHAPIRO
Deputy Branch Director
/s/ Robert Prince
ROBERT PRINCE (D.C. Bar No. 975545)
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Ave., N.W.
Washington, 20530
Tel: (202) 305 3654
robert.prince@usdoj.gov
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.
Plaintiff,
Civil Action No. 14-cv-1242 (RCL)
U.S. DEPARTMENT STATE,
Defendant.
DEFENDANT MEMORANDUM POINTS AND AUTHORITIES SUPPORT ITS MOTION FOR SUMMARY JUDGMENT
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
ELIZABETH SHAPIRO
Deputy Branch Director
Dated: July 2015
/s/ Robert Prince
ROBERT PRINCE (D.C. Bar No. 975545)
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Ave., N.W.
Washington, 20530
Tel: (202) 305-3654
robert.prince@usdoj.gov
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
TABLE CONTENTS
INTRODUCTION.........................................................................................................................
BACKGROUND ...........................................................................................................................
ARGUMENT ................................................................................................................................. STANDARD REVIEW ..............................................................................................
II. THE DEPARTMENT SEARCHES SATISFY FOIA................................................
III. THE DEPARTMENT PROPERLY WITHHELD INFORMATION UNDER
EXEMPTIONS FIVE AND SIX .................................................................................... The Department Properly Withheld Exempt Information Under Exemption Five..... The Department Properly Withheld Exempt Information Under Exemption Six ......
CONCLUSION ...........................................................................................................................
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
INTRODUCTION
Plaintiff this Freedom Information Act FOIA case, Judicial Watch, Inc.,
requested that the Office the Secretary, component Defendant United States Department State (the Department disclose copies updates and talking points about the attacks September 11, 2012, Benghazi, Libya, that were given former United States Ambassador the United Nations Susan Rice and any communications about such updates talking points.
The Department conducted searches reasonably calculated uncover responsive documents and
produced Judicial Watch four documents, one full and three with redactions. fifth
document was withheld full. Because the Department searches satisfy FOIA, because
Judicial Watch does not challenge any the redactions the documents produced the
Department, and because the Department properly withheld document full pursuant FOIA
Exemptions and the Department entitled summary judgment.
BACKGROUND March 13, 2014, Judicial Watch submitted two-part FOIA request (the FOIA
Request the Department Office the Secretary requesting the following: Copies any updates and/or talking points given
Ambassador Rice the White House any federal agency
concerning, regarding, related the September 11, 2012
attack the U.S. consulate Benghazi, Libya. Any and all records communications concerning, regarding, relating talking points updates the Benghazi attack
given Ambassador Rice the White House any federal
agency.
Complaint (ECF No. 1); Declaration John Hackett Ex. Hackett Declaration Hackett Decl correspondence with counsel for the Department, counsel for Judicial
Watch clarified that its request does not seek all records relating the attacks September 11,
2012 Benghazi, but rather only talking points and updates those talking points, not general
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
intelligence updates about the Benghazi attacks (unless those updates were sent furtherance
developing updating talking points). Hackett Decl Ex.
The FOIA Request used the same wording earlier FOIA request dated October 18,
2012, that Judicial Watch had submitted the Department United States Mission the United
Nations US/UN the component the Department which former Ambassador Rice
worked (the US/UN FOIA Request Hackett Decl Ex. During the course
previous litigation involving the US/UN FOIA Request, the Department released Judicial
Watch documents, whole part, totaling 1,439 pages. Hackett Decl n.1. The
parties executed settlement agreement and filed stipulation dismissal that prior case with
prejudice September 12, 2014. Judicial Watch State, (D.D.C. 13-951), Stipulation
Dismissal with Prejudice (ECF No. 18).
Judicial Watch, Inc. initiated this lawsuit against the Department July 21, 2014. (ECF
No. 1). The Department answered the complaint August 27, 2014. (ECF No. 6).
September 12, 2014, response the Department unopposed motion for scheduling order,
the Court set the following deadlines: (1) November 12, 2014 for the Department produce
Judicial Watch all non-exempt, responsive documents subject the FOIA; (2) December
2014 for the Department produce Judicial Watch draft Vaughn index; (3) December 19,
2014 for Judicial Watch provide the Department any objections the withholdings
described the draft Vaughn index and the parties confer thereafter attempt resolve this
matter without litigation; (4) January 2015 for the parties file joint status report. See
Def. Mot. for Scheduling Order (ECF No. 8); Order Sep. 15, 2014 (ECF No. 9).
The Department conducted searches reasonably calculated uncover all responsive
documents its custody and control, including key-word searches four electronic records
systems within the Office the Secretary and key-word searches the state.gov email accounts
The US/UN FOIA Request was date-limited September 11, 2012, through September 30, 2012.
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page three individuals who had dealt with the subject matter the FOIA Request and whose
records were therefore reasonably likely contain responsive records. Hackett Decl 10-14.
These searches produced number records which were then reviewed for responsiveness. Id.
14. Further, safeguard against overlooking responsive records, the Department also
reviewed each the documents produced response Judicial Watch US/UN FOIA Request determine whether any those documents had been sent from anyone the Office
the Secretary. Id. 15.
These searches electronic records systems, emails, and the US/UN FOIA release
discovered four responsive documents, which the Department produced Judicial Watch
letter dated November 11, 2014. Hackett Decl 16. December 2014, accordance
with the Court order, the Department produced Plaintiff draft Vaughn index describing the
redactions taken and explaining why the information withheld was exempt from disclosure under
the FOIA. Judicial Watch raised objections the withholdings described the Vaughn
index, but asked for description the search. The parties conferred and, effort resolve
the litigation, the Department agreed provide draft declaration describing the searches had
conducted. Judicial Watch agreed allow the Department until February 2015, provide the
draft search declaration. See Joint Status Report (ECF No. 11).
After the searches this case had been completed and the four responsive documents
had been delivered Judicial Watch, the Department received approximately 55,000 pages
hard copy emails and attachments emails from former Secretary Clinton.2 Hackett Decl
17. Because was reasonably likely that these emails contained documents responsive the
FOIA Request, counsel for the Department informed counsel for Judicial Watch phone that
the Department needed conduct searches emails that were not addressed during the initial
Former Secretary Clinton provided these emails response earlier request from the Department
State that, former Secretaries their representatives were aware [were to] become aware the future
federal record, such email sent received personal email account while serving Secretary State, that copy this record made available the Department. Hackett Decl 17.
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
search. Judicial Watch agreed give the Department until April 2015 conduct the
additional searches, produce any responsive documents and, necessary, revised Vaughn
index, and provide draft search declaration. See Joint Status Report February 2015
(ECF No. 11). The parties further agreed that Judicial Watch would complete its review any
materials provided and notify the Department whether would raise any objections the search any the withholdings from the responsive documents. Id.
The Department searched those emails that were sent received Former Secretary
Clinton after September 11, 2012 (the date the attacks Benghazi), through the end
former Secretary Clinton tenure January 31, 2013. Hackett Decl 17. responsive
records were found. Hackett Decl 17. April 2015, the Department notified Judicial
Watch that additional responsive records had been found and provided with draft search
declaration agreed. April 30, 2015, response questions raised during phone call
between counsel for the Department and counsel for Judicial Watch, the Department provided
second draft search declaration providing additional information. The parties were still unable
reach agreement. May 2015, the parties filed Joint Status Report (ECF No. 16) which
Judicial Watch noted its objections the search and suggested that the Court hold status
conference between May and May 29, 2015; the Department suggested that the Court set
briefing schedule for summary judgment.3 that status report, the parties asked that the Court, should choose not set status conference,
instead set briefing schedule under which Defendant would file its summary judgment motion June 30, 2015,
with briefing completed September 16, 2015. Joint Status Report May 2015 June 30, 2015,
Defendant filed notice with slightly adjusted proposed briefing schedule, which Plaintiff agreed:
(a) Defendant summary judgment motion due July 2015; (b) Plaintiff opposition motion for summary
judgment, and any cross-motion for summary judgment due August 14, 2015; (c) Defendant combined reply
and opposition any cross-motion for summary judgment due September 11, 2015; (d) Plaintiff reply
support any cross-motion for summary judgment due September 25, 2015. See Defendant Notice Regarding
Briefing Schedule (ECF No. 17). The Court adopted this schedule its minute order July 2015.
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
ARGUMENT
STANDARD REVIEW
Summary judgment appropriate when there genuine issue any material fact
and the moving party entitled judgment matter law. See Fed. Civ. 56(a);
Diamond Atwood, F.3d 1538, 1540 (D.C. Cir. 1995). FOIA actions are typically resolved summary judgment. Reliant Energy Power Generation, Inc. FERC, 520 Supp. 194,
200 (D.D.C. 2007). court reviews agency response FOIA request novo. See U.S.C.
552(a)(4)(B). When requester challenges the adequacy agency search, [i]n order
obtain summary judgment, 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 Dep the Army, 920 F.2d 57, (D.C. Cir. 1990);
Weisberg Dep Justice, 745 F.2d 1476, 1485 (D.C. Cir. 1984) (internal quotations and
citations omitted).
The agency must also justify any records withheld (in whole part) subject FOIA
statutory exemptions. FOIA represents balance struck Congress between the public right know and the government legitimate interest keeping certain information confidential.
Ctr. For Nat Sec. Studies DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003). Congress recognized
that legitimate governmental and private interests could harmed release certain types
information and provided nine specific exemptions under which disclosure could refused.
FBI Abramson, 456 U.S. 615, 621 (1982). These exemptions are specified U.S.C.
552(b).
II.
THE DEPARTMENT SEARCHES SATISFY FOIA
The Court may grant summary judgment concerning the adequacy agency search
for responsive records based information provided [a] reasonably detailed affidavit,
setting forth the search terms and the type search performed, and averring that all files likely
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page contain responsive materials (if such records exist) were searched. Valencia Lucena U.S.
Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Oglesby, 920 F.2d 68) (alteration
original); Meeropol Meese, 790 F.2d 942, 952 (D.C. Cir. 1986); Riccardi Dep Justice, F.Supp.3d 59, (D.D.C. Mar. 27, 2014). Such agency affidavits attesting reasonable
search are afforded presumption good faith, and can rebutted only with evidence that
the agency search was not made good faith. Id. (citations omitted).
Reasonableness, not perfection, therefore the Court guiding principle determining
the adequacy FOIA search. Id.; Campbell Dep Justice, 164 F.3d 20, (D.C. Cir.
1998). There requirement that agency search every record system. Oglesby, 920 F.2d 68. Moreover, the mere fact that search uncovers few documents even none all
does not render that search inadequate: the issue resolved not whether there might exist
any documents possibly responsive the request, but rather whether the search for those
documents was adequate. Weisberg, 745 F.2d 1485 (internal citation omitted); see also
Meeropol, 790 F.2d 952-53 (search not presumed unreasonable simply because fails
produce all relevant material); Perry Block, 684 F.2d 121, 128 (D.C. Cir. 1982) (agency need
not demonstrate that all responsive documents were found and that other relevant documents
could possibly exist). Conducting reasonable search process that requires both systemic
and case-specific exercises discretion and administrative judgment and expertise and
hardly area which the courts should attempt micromanage the executive branch.
Schrecker Dep Justice, 349 F.3d 657, 662 (D.C. Cir. 2003) (quoting Johnson Exec.
Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)). evaluating the adequacy search, courts accord agency affidavits presumption
good faith that cannot rebutted plaintiff speculation about the existence and
discoverability other documents. SafeCard Servs., Inc. SEC, 926 F.2d 1197, 1200 (D.C.
Cir. 1991) (internal quotation and citation omitted); see also Ground Saucer Watch, Inc. CIA,
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
692 F.2d 770, 771 (D.C. Cir. 1981) (same). Rather, establish the sufficiency its search, the
agency affidavits need only explain the scope and method the search reasonable
detail. Kidd Dep Justice, 362 Supp. 291, 295 (D.D.C. 2005) (quoting Perry, 684
F.2d 127). The agency need only search those systems which believes responsive records
are likely located. Ctr. for Journalism IRS, 116 Supp. (D.D.C. 2000);
Roberts Dep Justice, No. 92-1707, 1995 356320, (D.D.C. Jan. 29, 1993). The
Department State has done that here.
The Declaration John Hackett, Director the Department Office Information
Programs and Services, establishes that the Department made good faith effort conduct
search for the requested records, using methods which can reasonably expected produce the
information requested, Oglesby, 920 F.2d 68. [T]he Department conducted thorough
search all Department records systems within the Office the Secretary that were reasonably
likely maintain records responsive Plaintiff FOIA request. Hackett Decl 35.
Because the FOIA Request specified that sought records only from the Office the Secretary,
the Department Office the Executive Secretariat Staff S/ES-S which responsible for
coordinating search responses for the Office the Secretary State, conducted the searches for
responsive records. Hackett Decl
S/ES-S identified four electronic records systems databases reasonably likely
contain responsive records within the Office the Secretary:
Secretariat Tracking and Retrieval System STARS automated system
used track, control, and record documents containing substantive foreign policy
information passing to, from, and through the offices the Secretary State, the
Deputy Secretary State, and other Department principal officers. Original
documents are indexed, scanned, and stored images STARS. Information
STARS covers the period 1988 the present. Id. 10, Each document
STARS contains searchable abstract created Technical Information
Specialist when the document was added the database; each abstract
designed capture the subject matter the document. Id. 13. For documents
from the time period relevant the FOIA Request, the abstracts are the only
portions STARS whose text may searched. Id.
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
Secretariat Telegram Processing System STePS electronic system
designed distribute cables among the Department principals. Id. 10,
The full text the documents STePS searchable. Id. 13.
Cable Archiving Retrieval System CARS electronic system designed
provide access contemporary portion the Department telegram archive
deemed general interest. Id. 10, The full text the documents
CARS searchable. Id. 13.
Top Secret files Id. 10. During searches the files, search terms
are applied index files. Id. 13. Each index entry, along with key
words and topic description, was added Management Analyst. Id. This
index, rather than the full text the files themselves, can searched. Id. addition, members the Office the Secretary, based their knowledge which staff
members within that office during former Secretary Clinton tenure worked issues relevant this FOIA request, identified three individuals whose state.gov email accounts were
reasonably likely contain responsive records: Jacob Sullivan, the Deputy Chief Staff
former Secretary Clinton; Cheryl Mills, Counselor and Chief Staff former Secretary
Clinton; and Huma Abedin, Deputy Chief Staff former Secretary Clinton. Hackett Decl
11.
The Hackett Declaration explains how Management Analyst searched these four
electronic records systems and the state.gov accounts these three individuals using broad,
overlapping search terms ensure that the search would over-inclusive, minimizing the
chance that responsive record would overlooked. The Management Analyst used the
following search terms:
Ambassador
Rice
USUN/W
September 11, 2012
attack
Benghazi
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
Libya
talking points
TPs
updates
Hackett Decl 12. These search terms were used conduct disjunctive search (also known search because they are created using Boolean operator), which means any
document (or abstract, the case STARS, index entry, the case the files) that
contained any one these words would returned. Id. 14. Thus, the searches returned each
record that contained (or whose abstract index entry contained) the word Ambassador
well each one that contained the word attack Benghazi Libya, whether not that
document actually referred the attacks had been given Ambassador Rice. Id. The
records returned the text searches were then reviewed for responsiveness. Id. addition these primary searches, the Management Analyst also reviewed each the documents, totaling 1,439 pages, that were produced response the US/UN FOIA
Request, which had identical wording the FOIA Request issue here. Hackett Decl 15. During this review, the Management Analyst examined each sender and recipient
those documents; any document with recipient sender who was the Office the Secretary the time the document was sent was treated responsive. Id. 15. This check was
undertaken guard against the possibility that record had been overlooked the primary
searches. Id. result the primary searches and the additional review the documents produced response the US/UN FOIA Request, the Management Analyst found four responsive
documents, all which had been produced response the US/UN FOIA Request. Hackett
Decl Ex. These records were produced again Plaintiff this litigation, and
Plaintiff has not challenged any redactions contained those documents, either this suit
the related litigation stemming from the US/UN FOIA Request. Id. Ex.
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
The Deputy Director S/ES-S searched the approximately 55,000 pages emails and
attachments emails provided the Department former Secretary Clinton applying the
same search terms used for the other searches, see Hackett Decl 12, two PDFs containing
scanned images those documents that were sent received after September 11, 2012
(the date the attacks Benghazi), through the end former Secretary Clinton tenure
January 31, 2013. Id. 17. For each PDF, the Deputy Director entered search term
individually into the Find command Adobe Reader and navigated each occurrence the
search term the PDF. Id. The Deputy Director reviewed for responsiveness each individual
document that contained occurrence the search term. This process was repeated for each
search term listed above Paragraph 12. Id. responsive records were found. Id.
Finally, June 26, 2015, the Department received additional documents from Ms. Mills
and Mr. Sullivan that, the Department determined, might contain responsive documents. Hackett
Decl 20. These documents were provided the Department response letters, sent
earlier this year, Ms. Mills, Mr. Sullivan, and Ms. Abedin, which the Department asked
those individuals make available the Department any federal records that they may have
their possession, such emails concerning official government business sent received
personal email account while serving their official capacities with the Department, there
any reason believe that those records may not otherwise preserved the Department
recordkeeping system.4 Id. 18. attorney the Department Office the Legal Adviser
reviewed the documents provided Ms. Mills and Mr. Sullivan and found one responsive
document, two-message email chain that mentioned the talking points the course larger
Respective counsel for these three individuals informed the Department that they may provide further
response the letter the future. Hackett Decl 19. the Department receives any additional documents that
relate the subject matter the FOIA Request, the Department will advise Judicial Watch that the parties can
discuss how address any such documents.
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
discussion, which the Department determined should withheld full pursuant FOIA
Exemption Id. 20, 30.5
The broad keyword search across four electronic records systems and the state.gov email
accounts those Office the Secretary employees who worked the issues underlying the
FOIA Request, the extra confirmation check against the records the office where the person
the center the FOIA Request worked, the keyword search the emails former Secretary
Clinton that were sent received any time after the day the attacks, and the manual
review documents received from Ms. Mills and Mr. Sullivan, taken together, covered all files
likely produce responsive records and more than adequate satisfy the Department
obligations under FOIA. Despite these broad searches, Judicial Watch wants the Department
conduct wider agency search outside the bounds its original request (that is, the Office the Secretary) the emails potential recipients Secretary Clinton and the other three
individuals who dealt with the subject matter the request within the Office the Secretary.
Joint Status Report May 2015 (ECF No. 16).6
Additional searches such those requested Judicial Watch would unlikely
uncover more responsive documents. The FOIA Request, which was limited its own terms
the Office the Secretary, seeks talking points and updates related talking points sent
former Ambassador Rice, who worked US/UN. Common sense indicates that within
The Department had reviewed the earlier email this chain during the Department search the 55,000
pages received from former Secretary Clinton. Hackett Decl 21. was deemed unresponsive because the
references talking points contained therein appeared about separate set talking points being developed
within the Office the Secretary for future use. Id. However, the later message the email chain, which was not
sent former Secretary Clinton, made clear that one portion the earlier message had, indeed, been discussing
the talking points given Ambassador Rice. Id.
Judicial Watch noted two additional objections the search the Joint Status Report: (1) Judicial Watch
wants the Department disclose the identity the three individuals whose state.gov emails were searched; and
(2) Judicial Watch wants know what responses the Department has received, any, the letters sent those
three individuals asking them make available the Department any federal records that they may have their
possession, there any reason believe that those records may not otherwise preserved the Department
recordkeeping system. Joint Status Report May 2015 (ECF No. 16). The Hackett Declaration discloses the
names and titles those individuals, Hackett Decl 11, and provides the latest available information concerning
the letters sent them, id. 18-21.
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
US/UN, not within the Office the Secretary, that most responsive records would found, and
that search has already been done, litigated, and settled prior litigation with this Plaintiff.
And, indeed, Plaintiff identically worded US/UN FOIA Request directed the Mission
resulted the release responsive documents totaling almost 1,500 pages. those
documents, only totaling pages 0.8% the pages produced previously bore any
indication that they involved the Office the Secretary. Mere speculation that yet
uncovered documents may exist does not undermine the finding that the agency conducted
reasonable search for them. SafeCard, 926 F.2d 1201 (citing Weisberg, 745 F.2d 1486 87;
Ground Saucer Watch, Inc. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)).
III.
THE DEPARTMENT PROPERLY WITHHELD INFORMATION UNDER
EXEMPTIONS FIVE AND SIX The Department Properly Withheld Exempt Information Under Exemption Five
The Department properly withheld full, pursuant FOIA Exemption and the
deliberative process privilege, the document obtained from Mr. Sullivan.7 FOIA Exemption
exempts from disclosure inter-agency intra-agency memorandums letters which would not available law party litigation with the agency. U.S.C. 552(b)(5). The
exemption ensures that members the public cannot obtain through FOIA what they could not
ordinarily obtain through discovery lawsuit against the agency. NLRB Sears, Roebuck
Co., 421 U.S. 132, 149 (1975). Among the privileges protected Exemption the
deliberative process privilege, privilege uniquely available the government. See Rockwell
Int Corp. Dep Justice, 235 F.3d 598, 601 (D.C. Cir. 2001).
The deliberative process privilege applies decisionmaking executive officials
generally, and protects documents containing deliberations that are part the process which
Counsel for Judicial Watch has confirmed via email that Judicial Watch not challenging any the
redactions the documents produced it. Hackett Decl Ex. For this reason, only the responsive
document that the Department received June 26, 2015, and withheld full addressed this section and the
Hackett Declaration.
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
government decisions are formulated. Sealed Case, 121 F.3d 729, 737, 745 (D.C. Cir.
1997). The purpose the deliberative process privilege encourage full and frank
discussion legal and policy issues within the government, and protect against public
confusion resulting from disclosure reasons and rationales that were not ultimately the bases
for the agency action. See, e.g., Mapother Dep Justice, F.3d 1533, 1537 (D.C. Cir.
1993); Russell Dep the Air Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982). The privilege
animated the common-sense proposition that those who expect public dissemination their
remarks may well temper candor with concern for appearances the detriment the
decision making process. Sears, Roebuck Co., 421 U.S. 150-51 (citation omitted). come within the scope the deliberative process privilege, document must both
predecisional and deliberative. Coastal States Gas Corp. Dep Energy, 617 F.2d 854, 866
(D.C. Cir. 1980). document predecisional was generated before the adoption
agency policy and deliberative reflects the give-and-take the consultative process.
Id. establish that [a] document predecisional, the agency need not point agency final
decision, but merely establish what deliberative process involved, and the role that the
documents issue played that process. Judicial Watch Export-Import Bank, 108 Supp. 19, (D.D.C. 2000) (citing Formaldehyde Inst. HHS, 889 F.2d 1118, 1223 (D.C. Cir.
1989)). The privilege therefore applies broadly recommendations, draft documents,
proposals, suggestions, and other subjective documents which reflect the personal opinions the
writer rather than the policy the agency. Coastal States, 617 F.2d 866.
[D]raft documents their very nature, are typically predecisional and deliberative,
because they reflect only the tentative view their authors; views that might altered
rejected upon further deliberation either their authors superiors. Apollo Group,
Inc. Securities Litigation, 251 F.R.D. 12, (D.D.C. 2008) (non-FOIA case) (quotations
omitted). Accordingly, drafts are commonly found exempt under the deliberative process
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
exemption. People for the American Way Foundation National Park Service, 503 Supp. 284, 303 (D.D.C. 2007); see also, Judicial Watch Clinton, 880 Supp. (D.D.C.
1995) (upholding nondisclosure draft responses congressional inquiry).
The Department properly withheld such information under the deliberative process
privilege. threshold matter, the document qualifies inter-agency intra-agency
memorandums letters, U.S.C. 552(b)(5), because contains internal communications
between and among Department State employees. See Hackett Decl 30. Specifically, the
document three-page email exchange among then-current State Department employees
consisting two messages. Id. The earlier message from Jacob Sullivan former Secretary
Clinton and Cheryl Mills (who listed the address line) and has the subject Key
Points. was sent September 29, 2012 11:09 AM. The later message from Cheryl
Mills Jake Sullivan and Philippe Reines (Deputy Assistant Secretary State for Strategic
Communications and Senior Communications Advisor Secretary Clinton) and has the subject
Fwd: REVISED Key Points. was sent September 29, 2012 1:18 PM.
The bodies the messages consist drafts, composed advisors former Secretary
Clinton, proposed future communication from the former Secretary member the U.S.
Senate concerning various issues related the attacks September 11, 2012 Benghazi.
Hackett Decl 30. Thus, non-final drafts, the bodies the messages this document are
predecisional and deliberative nature. Id. 31. Release this material could reasonably
expected chill the frank deliberations that occur when senior staff are preparing points other
draft remarks for use senior Department officials addressing matter public controversy
and the material thus exempt under FOIA exemption Id. The Department conducted lineby-line review the documents and determined there was reasonably segregable, nonexempt material that could released. Id. 34.
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
The deliberative process privilege applies precisely the sort information that makes the entirety this document, that is, the sort frank deliberations that occur when senior
staff are preparing points other draft remarks regarding how high level officials the
Department should address matter public controversy. See, e.g., Judicial Watch, Inc. U.S.
Dep Homeland Sec., 736 Supp. 202, 208 (D.D.C. 2010) (in concluding that discussions how respond inquiries from the press and Congress were protected the deliberative
process privilege, explaining that, [b]ecause the handling [the] case was controversial,
understandable that numerous discussions involving the controversy took place and required
multiple decisions Thus, the document exempt from production under FOIA Exemption U.S.C. 552(b)(5). The Department Properly Withheld Exempt Information Under Exemption Six addition, the Department properly withheld the domain names the private email
addresses three Department employees, pursuant FOIA Exemption the document
obtained from Mr. Sullivan.8 FOIA Exemption protects personnel and medical files and
similar files the disclosure which would constitute clearly unwarranted invasion personal
privacy. U.S.C. 552(b)(6). The Supreme Court has adopted broad construction the
privacy interests protected Exemption Dep Justice Reporters Committee for
Freedom the Press, 489 U.S. 749, 763 (1989), the Court rejected cramped notion
personal privacy under the FOIA exemptions and instead emphasized that privacy
encompass[es] the individual control information concerning his her person. More
specifically, the Court noted that [p]rivacy the claim individuals determine for
themselves when, how, and what extent information about them communicated others.
Id. 764 n.16 (citation omitted). Privacy particular importance the FOIA context
because disclosure required the FOIA disclosure the public large. See Painting
The domain name email address the part that comes after the symbol. For example, the
email address george.washington@hotmail.com the domain name hotmail.com
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
Drywall Work Preservation Fund, Inc. HUD, 936 F.2d 1300, 1302 (D.C. Cir. 1991) (finding
that information must released one requester, must released all, regardless the
uses which might put
Exemption requires agency balance the individual right privacy against the
public interest disclosure. See Rose, 425 U.S. 372. The agency must determine whether
disclosure the information threatens protectable privacy interest; so, the agency must
weigh that privacy interest against the public interest disclosure, any. See Reed NLRB,
927 F.2d 1249, 1251 (D.C. Cir. 1991). The only relevant public interest weighed this
balance the extent which disclosure would serve the core purpose FOIA, which
contribut[ing] significantly public understanding the operations activities the
government. Dep Defense Fed. Labor Relations Auth., 510 U.S. 487, 495 (1994)
(emphasis Fed. Labor Relations Auth.; internal citation and quotation marks omitted).
Plaintiff bears the burden demonstrating that the release the withheld documents would
serve this interest. See Carter Dep Commerce, 830 F.2d 388, 391-92 nn. (D.C.
Cir. 1987).
The Department properly withheld the domain names the private email addresses
three Department employees Ms. Mills, Mr. Sullivan, and Mr. Reines that were the later
email the email chain provided Mr. Sullivan.9 Director Hackett weighed the public interest disclosure against the privacy interests the individuals whose private email addresses
appear the email chain. Hackett Decl 32-33. Director Hackett found that disclosure the
email addresses could subject the individuals harassment and would result clearly
unwarranted invasion privacy. Id. 29, 33. also determined that the release would shed light government operations and thus would not serve the core purpose for which
Congress enacted FOIA. Id. 29, 33. For these reasons, concluded that the privacy interest
The Department does not seek protect the personal email address former Secretary Clinton hdr22@clintonemail.com which the earlier email the email chain. Hackett Decl 30,
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
clearly outweighs any public interest disclosure. Id. 29. The domain names the private
email addresses are therefore exempt from release under FOIA Exemption Id. 33.
Agency employees obviously have powerful privacy interest their personal email
addresses, even when used for work-related correspondence. Competitive Enter. Inst. United
States Envtl. Prot. Agency, Supp. 100, 122 (D.D.C. 2014); see also Shurtleff United
States Envtl. Prot. Agency, 991 Supp. (D.D.C. 2013) (noting that preventing the
burden unsolicited emails and harassment substantial privacy interest And any public
interest associated with the use private email account for work-related correspondence
satisfied the Vaughn entries which both name the employee and explain that his her
personal email address[es] [have been] withheld the basis Exemption Id. (quoting
Vaughn index that case). Beyond that, there public interest knowing, for example,
whether [agency] employees used Hotmail Yahoo for their personal email correspondence.
Id. Likewise, the Vaughn entry this case has both named the employees whose personal email
accounts appear the document and stated that they have been withheld under Exemption
satisfying any public interest that may exist here. See Hackett Decl 30.
CONCLUSION
For the foregoing reasons, the Court should grant the Department State Motion for
Summary Judgment and enter judgment for defendant.
Case 1:14-cv-01242-RCL Document 19-1 Filed 07/07/15 Page
July 2015
Respectfully submitted,
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
ELIZABETH SHAPIRO
Deputy Branch Director
/s/ Robert Prince
ROBERT PRINCE (D.C. Bar No. 975545)
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Ave., N.W.
Washington, 20530
Tel: (202) 305-3654
robert.prince@usdoj.gov
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH
Plaintiff,
U.S. Department State,
Defendant.
No. 1:14-cv-01242-RCL
DECLARATION JOHN HACKETT
REGARDING EXEMPTIONS TAKEN RESPONSIVE DOCUMENTS
Pursuant U.S.C. 1746, John Hackett, declare and state llows: the Director the Office Information Programs and Services (IPS)
the United States Department State (the Department). this capacity, the Department
official immediately responsible for responding requests for records under the Freedom
Information Act (the FOIA), U.S.C. 552, the Privacy Act 1974, U.S.C. 552a, and
other applicable records access provisions. have been employed the Department this
capacity since June 2015. Prior assuming this role, served the Acting Director IPS
since April and Deputy Director since April 2013. the IPS Director, authorized
classify and declassify national security information. make the following statements based
upon personal knowledge, which tum based personal review the records the
case file established for processing the subject request and upon information furnished
the course official duties. familiar with the efforts Department personnel
process the subject request, and charge coordinating the agencys search and recovery
efforts with respect that request.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
The core responsibilities IPS include: (1) responding records access requests
made the public (including under the FOIA, the Privacy Act, and the mandatory
declassification review requirements the Executive Order governing classified national
security information), members Congress, other government agencies, and those made
pursuant judicial process such subpoenas, court orders and discovery requests; (2) records
management; (3) privacy protection; (4) national security classification management and
declassification review; (5) corporate records archives management; (6) research; (7) operation
and management the Departments library; and (8) technology applications that support these
activities.
This declaration explains the Department search for records responsive the
FOIA request issue this litigation. ADMINISTRATIVE PROCESSING PLAINTIFFS
REQUEST AND THE SEARCH FOR RESPONSIVE DOCUMENTS letter dated May 13, 2014, Judicial Watch (Plaintiff) submitted FOIA
request the Department requesting that the Office the Secretary produce the following
within twenty (20) business days: Copies any updates and/or talking points given
Ambassador Rice the White House any federal agency
concerning, regarding, related the September 2012 attack the U.S. consulate Benghazi, Libya. Any and all records communications concerning, regarding, relating talking points updates the Benghazi attack
given Ambassador Rice the White House any federal
agency.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
See Ex. (Plaintiffs FOIA request, F-201 4-08848). correspondence with counsel for the Department, Plaintiff further clarified that
its request does not seek all records relating the attacks September 2012 Benghazi,
but rather only talking points and updates those talking points, not general intelligence
updates about the Benghazi attacks (unless those updates were sent furtherance developing updating talking points). See Ex. (Email from Ramona Cotca, Sep. 2014) (confirming
scope request).
When the Department receives FOIA request, JPS evaluates the request
determine which offices, overseas posts, other records systems within the Department may
reasonably expected contain the records requested. This determination based the
description the records requested and requires fami liarity with the holdings the
Departments records systems, applicable records disposition schedules, and the substantive and
functional mandates numerous Department offices and Foreign Service posts and missions.
Factors such the nature, scope, and complexity the request itself are also relevant.
Each office within the Department, well each Foreign Service post and
mission, maintains files concerning foreign policy and other functional matters related the
daily operations that office, post, mission. These files consist generally working copies documents, information copies documents maintained the Central Foreign Policy
This request was identically worded request previously made the Plaintiff and directed toward the United
States Mission the United Nations (USUN/W). This previous request was the subject related litigation, J3cv-00951, which the parties settled after the Department produced documents totaling 1,439 pages responsive
that request. See Ex.Cat (Judicial Watchv. State, (D.D.C. 13-951), FOlA Request Letter (Dkt No. 1)).
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
Records collection, and other documents prepared furnished the office connection
with the performance its official duties, well electronic copies documents and e-mail
messages.
Plaintiffs request specified that sought records only from the Office the
Secretary. Therefore, the Department tasked only the Executive Secretariat search for agency
records responsive Plaintiffs avowed construction its request that were generated between
September 2012, and September 23, 201 the day that the search was conducted.2
The Executive Secretariat (S/ES)
The Office the Executive Secretariat Staff (S/ES-S) responsible for
coordination the work the Department internally, serving the liaison between the
Departments bureaus and the offices the Secretary, the Deputy Secretary, and the Under
Secretaries. responsible for coordinating search responses for the Office the Secretary
State (S), the Office the Deputy Secretary State (D), the Office Policy Planning
(S/P), the Office the Under Secretary for Political Affairs (P), and the Counselor the
Department (C).
10. September 2014, Management Analyst who was knowledgeable both
the request and S/ES-S records systems conducted search ofS/ES-S electronic records systems
reasonably likely contain responsive records. These systems include the Secretariat Tracking
The immediate Office the Secretary comprised the Secretarys Chief Staff, the Counselor the
Department, Deputy Chief Staff, the Secretarys secretary, the Executive Assistant, special assistants, the
Secretarys scheduler, staff assistant, and personal assistants. This staff handles all the day-to-day matters the
Secretary, including meetings the Department, functions Washington and throughout the country, and travel
around the world.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
and Retrieval System (STARS),3 the Secretariat Telegram Processing System (STePS), the
Cable Archiving Retrieval System (CARS),5 and the Top Secret files (TS). These systems
search capabilities are wildcard-based, meaning that common variations the keywords being
searched would retrieved (e.g., search for directive would produce directives).
11. September 23, furtherance this process, S/ES-S also searched the
state.gov email accounts three individuals-Cheryl Mills (Counselor and Chief Staff
former Secretary Clinton), Jacob Sullivan (Deputy Chief Staff for Policy former Secretary
Clinton), and Huma Abedin (Deputy Chief Staff for Operations former Secretary
Clinton}--within the Office the Secretary. These individuals were selected members the
Office the Secretary based their understanding which staff members within the Office
the Secretary during former Secretary Clintons tenure worked issues related the Benghazi
attacks and whose records may therefore reasonably expected contain responsive records.
12.
For both the databases and the email records, S/ES used the search terms
Ambassador Rice USUN/W September 2012 attack Benghazi
Libya talking points TPs updates.
STARS automated system used track, control, and record documents containing substantive foreign policy
information passing to, from, and through the offices the Secretary State, the Deputy Secretary State, and
other Department principal officers. Original documents are indexed, scanned, and stored images STARS.
Information STARS covers the period 1988 the present.
STePS designed distribute cables among the Departments principals.
CARS designed provide access contemporary portion the Departments telegram archive deemed general interest.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
13.
During searches the email records, well the STePs and CARS databases,
the search terms were appl ied each document, well attachments that contain searchable
text. During the search STARS, the search terms were applied descriptive abstract
attached each document. Each STARS abstract was created Technical Information
Specialist when the document was added the database; this abstract designed capture the
subject matter the related document. For documents from the time period relevant the
FOIA request, the abstracts are the only portions the STARS database whose text may
searched Similarly, during the search, the search terms were applied index files.
Each index entry, along with key words and topic description, was added Management
Analyst into the index. This index, rather than the full text the files themselves, can
searched.
14.
The use between the search terms indicates that this was disjunctive
search; the terms listed would have retrieved any documents that contain (for email, STePS,
CARS records), whose abstracts indexes contain (for STARS and records), the word
Ambassador, for example, even the document, abstract, index contained none the other
search terms. These searches were completed September 23, 2014, and returned number
records, which were then reviewed for responsiveness.
15. addition, guard against the possibi lity that particular document was
overlooked, the Management Analyst also reviewed each the documents that were produced
Plaintiff from USUN/W, rather than the Office the Secretary, the related litigation described footnote above. The Management Analyst examined each sender recipient each
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
document produced that litigation; documents with recipient sender who was the Office the Secretary the time the email was sent were treated responsive.
16. result the searches email records, database records, and records
produced the prior related litigation described this paragraph, the Management Analyst
found four documents responsive Plaintiffs
FOIA request, all which had been previously
produced Plaintiff the related litigation described footnote Jetter dated November
11, 2014, the Department released one document full and three documents part. See Ex.
(Letter Nov. 12, 2014).
17.
After the searches this case had been completed and the four responsive
documents delivered the Plaintiff, the Department received approximately 55,000 pages
hard copy emails and attachments emails, arranged chronological order, from former
Secretary Clinton.6 These records were provided her response earlier request from
the Department State that, fonner Secretaries their representatives were aware [were
to] become aware the future federal record, such email sent received
personal email account while serving Secretary State, that copy this record made
available the Department. See Ex. (Text Letter Former Secretaries State
Concerning the Federal Records Act 1950). The Deputy Directory ofS/ES-S applied the
same search terms described above, see 12, two PDFs containing scanned images subset these documents, specifically, the documents that were sent received after September
Former Secretary Clinton did not use state.gov email account.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
11, 2012, through the end former Secretary Clintons tenure January 31, 2013. For each
PDF, the Deputy Director entered search term individually into the Find command Adobe
Reader and navigated each occurrence the search term the PDF. The Deputy Director
reviewed for responsiveness each individual document that contained occurrence the search
term. This process was repeated for each search term listed above Paragraph 12.
responsive records were found.
18.
Earlier this year, the Department sent letters Ms. Mills, Mr. Sullivan, and Ms.
Abedin, whose state.gov accounts were searched response this FOIA request. those
letters, the Department asked those individuals make available the Department any federal
records that they may have their possession, such emails concerning official government
business sent received personal email account while serving their official capacities
with the Department, there any reason believe that those records may not otherwise
preserved the Departments recordkeeping system.
19.
All three individuals have responded those letters, through counsel, inform
the Department that they have begun the process searching for and providing the Department
documents their possession that may potentially federal records. That process ongoing.
20. June 26, 2015, counsel for Ms. Mills and counsel for Mr. Sullivan provided
the Department with number documents response the letters. attorney the
Departments Office the Legal Adviser has reviewed these newly received documents and
discovered one responsive document among those that had been provided Mr. Sullivan,
two-message email chain that mentioned the talking points the course larger discussion,
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
which has determined should withheld full pursuant FOIA Exemption See 25-27,
infra.
21.
The earlier message that email chain forward email that was sent to,
among other people, former Secretary Clinton. Department attorney has determined that
was among the 55,000 pages provided the Department former Secretary Clinton. This
earlier message had been reviewed Staff the Office the Secretary during the process
described above Paragraph but deemed unresponsive because the references talking
points contained therein appeared about separate set talking points being developed
within the Office the Secretary for future use. was not clear from the face the earlier
message that one the references talking points was those that had been given
Ambassador Rice. Department attorney has determined that the copy the earlier message
included the document received from Mr. Sullivan identical the copy received from
former Secretary Clinton. However, the later message the email chain, which was not sent
former Secretary Clinton, made clear that one portion the earlier message had, indeed, been
discussing the talking points given Ambassador Rice.
II. EXEMPTIONS CLAIMED
FOJA Exemption 5-Deliberative Process Privilege
22. U.S.C. 552(b)(S) states that the FOIA does not apply to:
inter-agency intra-agency memoranda letters which would not available law party other than agency litigation with the agency ....
23.
Exemption U.S.C. 552(b)(5), protects from disclosure information that
normally privileged the civi discovery context, including information that protected the
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
deliberative process. The deliberative process privilege protects the confidentiality candid
views and advice U.S. Government officials their pre-decisional deliberations related
policy formulation and administrative direction.
24.
For example, certain information withheld this case reflects drafts materials
being prepared for senior Department officials, together with suggested revisions being offered Department employees. Disclosure material containing such deliberations material
which such deliberations are based could reasonably expected chill the open and frank
exchange ofideas and recommendations which Department officials are involved. would
severely hamper the ability responsible Department officials formulate and carry out
executive branch programs. Information one document this case, detailed below, has
been withheld the basis this exemption. Disclosure this information, which predecisional and deliberative, and contains selected factual material intertwined with opinion,
would inhibit candid internal discussion and the expression recommendations and judgments
regarding current problems and preferred courses action Department personnel with respect materials being prepared for senior Department officials. The withheld information is,
accordingly, exempt from release under Exemption U.S.C. 552(b)(5) pursuant the
deliberative process privilege.
FOIA Exemption 6-Personal Privacy
25. U.S.C. 552 (b)(6) states that the FOIA does not apply
Four documents were withheld part pursuant various FOIA exemptions. Counsel for Plaintiff has confirmed
via email that Plaintiff not challenging any the redactions the documents produced it. Ex. (Email from
Ramona Cotca, June 15, 2015). Therefore, this declaration only addresses the exemptions that apply the
document that was provided Mr. Sullivan June 26, 2015, which has been withheld full.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
personnel and medical files and similar files the disclosure which would
constitute clearly unwarranted invasion personal privacy...
26.
Courts have interpreted the language Exemption broadly encompass all
personal information that applies individual, without regard whether was located
particular type file. The Department withheld only the domain names the personal email
addresses Jacob Sullivan, Cheryl Mills, and Philippe Reines under Exemption
27.
Inasmuch the information withheld personal individual, there clearly privacy interest involved. required, therefore, determine whether there exists any
public interest disclosure and weight any such interest against the extent the invasion
pnvacy.
28. United States Department ofJustice Reporters Committee for Freedom
the Press, 489 U.S 749 (1989), the Supreme Court laid down two rules for determining public
interest disclosure information involving privacy interest: (I) whether disclosure would
serve the core purpose for which Congress enacted the FOIA, 1.e., show what the
government to, and (2) that public interest means the interest the public general, not
particular interests the person group seeking the information. Accordingly, the identity
the requester well the purpose for which the information sought irrelevant making
the disclosure determination.
29. for all the information withheld pursuant Exemption have concluded
that (1) disclosure the information withheld would result clearly unwarranted invasion
personal privacy; and (2) disclosure the information would not serve the core purpose the
FOIA, i.e., would not disclose information about what the government to.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
Accordingly, have determined that the privacy interests clearly outweigh any public interest
disclosure the withheld information.
Document Description
30.
Document C05831334 which discussed above, see~~ 20-21, three-page
intra-agency email exchange consisting two messages. The earlier message from Jacob
Sullivan former Secretary Clintons non-state.gov email address and Cheryl Mills (who
listed the address line) and has the subject Key Points. was sent September 29,
2012 :09 AM. The later message from Cheryl Mills Jake Sullivan and Philippe Reines
(Deputy Assistant Secretary State for Strategic Communications and Seruor Communications
Advisor Secretary Clinton) and has the subject Fwd: REVISED Key Points. was sent
September 29, 2012 PM. The bodies the messages consist drafts, composed
advisors former Secretary Clinton, proposed future communication from the former
Secretary member the U.S. Senate concerning various issues related the attacks
September 11, 2012 Benghazi. portion each draft consisted summary the talking
points that had been sent Ambassador Rice (although, explained above, see ~ii 20-21 the
Department did not realize that the earlier message included reference those talking points
until the Department received and reviewed the second message the email chain). The
Department has withheld the email chain full under FOIA Exemption pursuant the
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
deliberative process privilege and the domain names associated with the private email addresses Ms. Mills, Mr. Sullivan, and Mr. Reines under Exemption
31. non-final drafts, the bodies these messages consist their entirety
information that pre-decisional and deliberative nature. Release this material could
reasonably expected chill the frank deliberations that occur when senior staff are preparing
points other draft remarks for use senior Department officials addressing matter
public controversy. The material therefore exempt under FOIA Exemption U.S.C.
552(b)(5) pursuant the deliberative process privilege.
32.
Inasmuch the information withheld under Exemption the email chain
identifies specific individual, personal privacy interest exists the information. Therefore, now required determine whether there exists any public interest disclosure and,
public interest implicated, weigh any such interest against the privacy interest determine
whether disclosure would constitute clearly unwarranted invasion personal privacy.
33.
Any individual, including U.S. Government employee, has privacy interest
his her personal email address because the release this information could result
harassment unwanted attention. Moreover, the release the domain name personal
email address would not shed light government operations. The domain names the
personal email addresses the email chain are therefore exempt under FOIA Exemption
u.s.c. 552(b)(6).
The Department does not seek protect the non-state.gov email address fonner Secretary Clinton
(hdr22@clintonemail.com), which the earlier email the email chain.
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
34.
The Department conducted line-by-line review the email hain and
determined that there was reasonably segregable, non-exempt material that could released,
other than the infonnation disclosed the preceding two paragraphs.
CONCLUSION
35. summary, the Department conducted thorough search all Department
records systems within the Office the Secretary that were reasonably likely maintain
records responsive Plaintiffs FOIA request and located five responsive documents, one
which released full, three which released part, and one which withheld full.
*** declare under penalty perjury that the foregoing true and correct the best
knowledge.
Executed this day ofJuly 15, Washington, D.C.
John Hackett
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH
Plaintiff,
U.S. Department State,
Defendant.
No. 1:14-cv-01242-RCL
DECLARATION JOHN HACKETT
REGARDING EXEMPTIONS TAKEN RESPONSIVE DOCUMENTS
EXHIBIT
Plaintiff FOIA Request
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
Judicial
Watcli
HPt flll ,,. 11nt
i.oC ln11 /1, fore
May 13. 2014
VIA CERTIFIED MAIL
Office oflnformation Programs and Services
VGlS/IPS1RL Department Stat.:
Washington, 20522-8100
Re; Freedom Information Act uest
Dear frecdom lnfonnation Officer:
Pursuant the Freedom oflnfom1ation Act (FOIA). U.S.C. 552 .Judicial
Watch, Inc. hereby requcs1s that Office the Secretary State produce the follo.ting
within twenty (20) business days: Copies any updates and/or talking points given Ambassador Rice the
White House any federal agency concerning. regarding. related the
September 2012 anack the U.S. consulate Benghazi, Libya. Any and all records communications concerning, regarding. relating
talking points updates the Benghazi attack given Ambassador Rice
I.he White House any federal agency. call your attention President Obama January 21. 2009 Memorandum
concerning the Freedom Information Act, which states: agencies should adopt presumption favor
disclosure, order renew their commitment the
principles embodied FOlA ... The presumption
disclosure should applied all decisions involving
FOIA.
lhc memo fwther provides that The Freedom Information Act should
administered with clear presumption: lbe case doubt. openness prevails.
Nevertheless. any responsive record portion I.hereof claimed exempt
rrom production under FOIA. please provide sufficient identifying information with
respect each allegedly exempt record portion thereof aUow assess the
propriety the claimed exemption. Vaughn Rosen. 484 F.2d 820 (D.C. Cir. 1973).
Freedom Information Act. Pres. Mem. Janual) 2009. Fed. Reg. 4683 ThlrJ SW. S11itc ~01 W:i),l11ngtnn, I)( 20024 Tel. (2021646-517~ 1>1 1-XXS-.59.1-84..t:!
AX. r2021 Mil- lll) hnad 1nft)1tl~lhl11.:rnl\atch.urg \\.Judirn11Wutdl.)1!!
MAY
:CM
Case 1:14-cv-01242-RCL Document 19-2 Filed 07/07/15 Page
Department State
May 13, 2014
cert. nied, 415 U.S. 977 (1974). addition. any reasonably segregabl~ portion
respons ive record must provided, after redaction any allegedly exempt material.
U.S.C. 552(b).
For purposes this request. the term record shall mean: any written.
printed., typed material any kind, including wrthout limitation correspondence.
memoranda, notes, messages, letters. cards, facsimilt::s. papers. forms. telephone
messages. diaries, schedules. calendars, chronological data, minutes. books, repo1ts,
cha.its, lists. ledgers, invoices, worksheets, receipts, returns, computer printouts. ptinted
matter. prospectuses, statements. checks, stati stics, surveys. affidavits. co11t:racts.
agreements, transcripts, magazine newspaper articles, press releases: (2) any
electronically. magnetically, mechanically stored material any kind. including
without limitation all electronic mail e-mai (3) any au