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Judicial Watch • JW v DOJ Court Order 00029

JW v DOJ Court Order 00029

JW v DOJ Court Order 00029

Page 1: JW v DOJ Court Order 00029

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Number of Pages:4

Date Created:June 9, 2018

Date Uploaded to the Library:June 10, 2018

Tags:Unofficial, Brinkmann, representations, gmail, Kadzik, 00029, searches, Declaration, summary, motion, AGENCY, order, justice, Hillary Clinton, filed, document, records, DOJ, department, FOIA, states, united


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Case 1:17-cv-00029-DLF Document Filed 06/09/18 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
Civil Action No. 17-cv-00029 (DLF)
U.S. DEPARTMENT JUSTICE,
Defendant.
ORDER June 2018 the Court held hearing address the United States Department
Justice Motion for Summary Judgment, Dkt. 16, and Judicial Watch Cross-Motion for
Summary Judgment, Dkt. 18. The parties arguments during that hearing focused
declaration submitted Office Information Policy Senior Counsel Vanessa Brinkmann,
the agency official responsible for supervising the Department Justice response Judicial
Watch FOIA requests. During the hearing, counsel for the Department Justice stated that
the Brinkmann declaration contains all the representations that Peter Kadzik, former Assistant
Attorney General for Legislative Affairs, made relevant the pending motions, but counsel also
referred representations that are not evident from the face the Brinkmann declaration. The
Court does not believe that counsel for the Department Justice made any intentional
misrepresentations; however, based close review the hearing transcript and the
Brinkmann declaration, appears that the Brinkmann declaration incomplete several
respects. For example, counsel for the Department Justice stated during the hearing that Mr.
Kadzik represented that had agency records his personal Gmail account. See Unofficial
Case 1:17-cv-00029-DLF Document Filed 06/09/18 Page
Tr. 10, June 2018 minimum had the obligation ask Mr. Kadzik whether
had any agency records this personal e-mail account that wouldn captured official
records systems. And once asked him and represented that did not, don think
had any further legal obligations. (emphasis added)); id. Not only did make those
representations, actually went and searched. id. [W]e received the representations
from him, not just about the contents his Gmail account generally but also the results the
specific searches that ran himself confirm support those representations. id. 11-12 think when federal employee, particularly senior Department Justice official like Mr.
Kadzik, represents that there are agency records his personal Gmail account, think
the government intended take those representations good faith, absent some evidence
the contrary. (emphasis added)); id. think had the obligation least ask Mr.
Kadzik about his e-mail practices generally, about whether used personal e-mail account for
official business, and that particular e-mail question. don think were obligated to, you
know, distrust the representations that had received from senior DOJ official. id. [W]e took additional steps request additional specific searches Mr. Kadzik saying
know you senior DOJ official who has now reported that you did not have any agency
records your Gmail account id. [H]e confirmed that understood those
obligations and represented that there were agency records his Gmail
account (emphasis added)); id. [W]e have essentially that representation the
Brinkmann Declaration. id. 69-70 There are clear representations that are reporting
that got from Mr. Kadzik about his e-mail practices generally and about the one e-mail
particular (emphasis added)). While the Brinkmann Declaration comes close, does not
reflect that Mr. Kadzik represented that had agency potential agency records his
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Case 1:17-cv-00029-DLF Document Filed 06/09/18 Page
personal Gmail account. According the declaration, [Mr. Kadzik] was confident that his
personal Gmail inbox contained agency records potential agency records. Brinkmann
Decl. (emphasis added), Dkt. 16-3. Although the Brinkmann declaration states that Mr.
Kadzik confirmed that did not recall ever using his personal Gmail account send any other
similar e-mails John Podesta, anyone else associated with the Clinton campaign, id., this
statement does not cover the full scope Judicial Watch specific FOIA requests, which
include: (1) e-mails sent received Mr. Kadzik using the e-mail address
peterkadzik@gmail.com which conducted official government business, and (2) e-mails
and from Mr. Kadzik Gmail address and any non-government employee pertaining
former Secretary State Hillary Clinton use non-state.gov e-mail conduct official
business. Id.
Counsel for the Department Justice also indicated during the June 2018 hearing that
Mr. Kadzik opened each e-mail and reviewed each e-mail when conducting the manual searches.
Unofficial Tr. 10, June 2018 [Manual search] means opening the e-mails. (emphasis
added)). But the Brinkmann Declaration does not indicate whether Mr. Kadzik opened and
reviewed each e-mail when conducted the two manual searches, simply reviewed the subject
lines each email, performed manual search different manner. See Brinkmann Decl. (Mr. Kadzik performed manual review (i.e., not using search terms) the appropriate
folders. also unclear whether Mr. Kadzik initial manual review included searches
the sent, inbox, and trash folders, id., simply the sent folder, counsel for the Department Justice stated the hearing, Unofficial Tr. 24, June 2018 think the manual search was
limited the sent folder his Gmail inbox.
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Case 1:17-cv-00029-DLF Document Filed 06/09/18 Page
Finally, with respect the first round searches that Mr. Kadzik conducted, counsel for
the Department Justice stated the hearing that [t]here was actually extensive direction from
DOJ, and that documented the declaration. Id. 21; see also id. even those
initial searches, was not just Mr. Kadzik entirely his own. But the Brinkmann declaration
provides few, any, details regarding the extensive direction that the Department Justice
gave Mr. Kadzik.
Accordingly, the Court directs the Department Justice submit June 15, 2018
supplemental declaration that provides any additional details that the Department Justice
able provide regarding the following: (1) Mr. Kadzik representations regarding whether his
Gmail account contained agency records potential agency records; and (2) the two manual
searches that Mr. Kadzik conducted this case. particular, with respect the manual
searches, the supplemental declaration shall indicate, the extent possible, whether Mr. Kadzik
opened and reviewed individual e-mails and which folders Mr. Kadzik reviewed when
conducting the manual searches.
The Court also invites the Department Justice provide any additional information
that able provide regarding other representations that Mr. Kadzik made, including, but not
limited to, the term searches conducted this case and his e-mail practices generally and
about the one [Podesta] e-mail particular. Unofficial Tr. 69-70, June 2018. ORDERED.
_________________________
DABNEY FRIEDRICH
United States District Judge
June 2018
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