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Judicial Watch • JW v State appeal brief 00690

JW v State appeal brief 00690

JW v State appeal brief 00690

Page 1: JW v State appeal brief 00690

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Number of Pages:19

Date Created:December 8, 2016

Date Uploaded to the Library:February 01, 2017

Tags:Yeager, 00690, Appellant, Fedeli, appeal, service, Secretary, filed, State Department, plaintiff, request, document, records, FOIA, department, office


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USCA Case #16-5170
Document #1650169
Filed: 12/09/2016
NOT YET SCHEDULED FOR ORAL ARGUMENT THE UNITED STATES COURT APPEALS
FOR THE DISTRICT COLUMBIA CIRCUIT
_________
No. 16-5170
_________
JUDICIAL WATCH, INC.
Plaintiff-Appellant,
U.S. DEPARTMENT STATE
Defendant-Appellee.
__________ APPEAL FROM THE U.S. DISTRICT COURT
FOR THE DISTRICT COLUMBIA
__________
REPLY BRIEF APPELLANT JUDICIAL WATCH, INC.
__________
Chris Fedeli
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street, S.W., Suite 800
Washington, 20024
(202) 646-5172
Counsel for Plaintiff-Appellant
Dated: December 2016
USCA Case #16-5170
Document #1650169
Filed: 12/09/2016
TABLE CONTENTS
TABLE AUTHORITIES ....................................................................................
GLOSSARY ABBREVIATIONS ..................................................................... iii
INTRODUCTION .....................................................................................................
ARGUMENT .............................................................................................................
State Mischaracterizes Judicial Watch Clarification its Request .............
State Mischaracterizes Judicial Watch Original FOIA Request ..................
State Misinterprets the FOIA Statute .............................................................
State Fails Show its Search was Adequate ................................................
State Argument that the Trial Court was Correct Merely Retread
its Mischaracterizations and Statutory Mistake.............................................
CONCLUSION ........................................................................................................
USCA Case #16-5170
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TABLE AUTHORITIES
CASES
PAGE
Hemenway Hughes, 601 Supp. 1002 (D.D.C. 1985) ......................................
Kowalczyk Dep Justice, F.3d 386 (D.C. Cir. 1996) ................................
LaCedra Executive Office for the United States Attorneys,
317 F.3d 345 (D.C. Cir. 2003).......................................................................
Moore Bush, 601 Supp. (D.D.C. 2009) ...................................................
Nation Magazine U.S. Customs Service, F.3d 885 (D.C. Cir. 1995) .............
Perrin United States, 444 U.S. (1979) .............................................................
Sussman U.S. Marshals Service, 494 F.3d 1106 (D.C. Cir. 2007) .....................
Weisberg U.S. Dep Justice, 745 F.2d 1476 (D.C. Cir. 1984) ......................... Yeager Drug Enforcement Admin., 678 F.2d 315 (D.C. Cir. 1982) .....1,
STATUTES U.S.C. 552(a)(3)(A) ..................................................................................2,
OTHER AUTHORIES
Merriam-Webster Dictionary, entry for reasonable, available
http://www.merriam-webster.com/dictionary/reasonable .........................................
Merriam-Webster Dictionary, entry for sufficient, available
http://www.merriam-webster.com/dictionary/sufficient ........................................... Authorities upon which Plaintiff-Appellant chiefly relies are marked with
asterisks.
USCA Case #16-5170
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GLOSSARY ABBREVIATIONS
FOIA
Freedom Information Act
Joint Appendix
State
U.S. Department State
iii
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Introduction
The crux this case the U.S. Department State State knew
should have known which documents Appellant was seeking, but chose not
comply. review the record provided the Joint Appendix demonstrates that
State cannot credibly claim that could not understand which records Appellant
Judicial Watch, Inc. Judicial Watch Plaintiff sought. While State should
have understood which records Plaintiff sought from the original request, Judicial
Watch clarification that request provided State insistence leaves
room for doubt that State should have known. Accordingly, State was obligated
produce. Yeager Drug Enforcement Admin., 678 F.2d 315, 326 (DC Cir. 1982). this fundamental question whether State was able determine which
records Plaintiff sought, State responsive brief avoids responding Judicial
Watch arguments. Instead, State lays out the legal standard for case which
not before this Court. Judicial Watch opening brief explained that its FOIA
request reasonably described the documents, and therefore State was required
produce them. its responsive brief, State argues only that FOIA allows agencies deny requests that are either indecipherable seek millions records. Much State argument premised mischaracterizing Plaintiff FOIA request (and
clarification) either unintelligible overbroad. This argument fails, however,
upon simple review the underlying request and the reformulation.
USCA Case #16-5170
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Filed: 12/09/2016 advance this argument that had obligation comply with requests
that were worded imperfectly, State misinterprets the FOIA statute. FOIA does not
impose the stringent requirements written FOIA requests that State seems
imagine does. Rather, the statute only requires that written request reasonably
describe the documents sought. U.S.C. 552(a)(3)(A). The statute does not
require perfectly written request. The statute does not permit agencies engage grammatical pedantry when reading requests. The statute only mandates
reasonableness. State responsive brief, the other hand, asks this Court rewrite the statute allow federal agencies reject any FOIA request for whatever
slight fault agency may find with how was written. The Court should reject
State argument.
State efforts demonstrate that its search for records was adequate
similarly fail. Indeed, had State complied with FOIA requirements for agencies conduct sufficient searches, this litigation likely never would have progressed
this far. For instance, State could have informed Plaintiff how many potentially
responsive records its search turned search declaration. State informed
Plaintiff about the number potentially responsive documents there were (the
number hits from electronic search), any confusion about Plaintiff FOIA
request could have been resolved and those documents could have been produced.
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Finally, since this novo review, the lower court reasoning need not considered. Sussman U.S. Marshals Service, 494 F.3d 1106, 1111-12 (D.C.
Cir. 2007). Nevertheless, State fails rebut Plaintiff showing that the trial court
erred. The lower court erred misreading the FOIA statute and misapplying
precedents. Since the record demonstrates that State knew which documents were issue, the trial court should reversed.
Argument State Mischaracterizes Judicial Watch Clarification its Request
Throughout its brief, State mischaracterizes Plaintiff gracious attempts
clarify State insistence that which should have been patently obvious
begin with. State Responsive Brief Resp. Brief 22-29. fully
demonstrate how absurd for State claim did not understand Plaintiff
clarification the original request, here Judicial Watch restated request full:
Records sufficient show whether current and former officials
officers any Under Secretary Office higher the U.S.
Department State used non- state.gov email addresses conduct
official State Department business from January 20, 2009 the
present. This includes current and former officials officers the
following offices: Office the Secretary, Deputy Secretary,
Executive Secretariat, Office Foreign Assistance, Counselor,
Chief Staff Under Secretary for Political Affairs, Under Secretary
for Economic Growth, Energy and Environment, Under Secretary for
Arms Control and International Security Affairs, Under Secretary for
Public Diplomacy and Public Affairs, Under Secretary for
Management, Under Secretary for Civilian Security, Democracy and
Human Rights. Responsive records are not limited documents
listing all officials who used non- state.gov addresses, but include
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any documents identifying one more current former official
officer using non- state.gov email addresses conduct official State
Department business during the above time-frame. 57. reasonable person would read this and understand which documents
describes. State read and claimed said: produce copies every single State
Department document that contains yahoo.com gmail.com email address
anywhere it. See 44. the above reformulation, State badly misinterprets the phrase records
sufficient show requesting all records that show unofficial email use.
Resp. Brief This not what the word sufficient means. The meaning
sufficient records not close the meaning all records. Rather, sufficient
means enough. Had State produced some records discussing unofficial email
use employees (but not all such records), would have satisfied Plaintiff
reformulated request. strains credulity for State tell this Court that read the
words records sufficient show and thought Judicial Watch meant all such
records.
And while State correct that reformulations request are generally
irrelevant whether the original FOIA request reasonably described the
documents (Resp. Brief 13), such reformulations are not irrelevant whether
Merriam-Webster Dictionary, entry for sufficient, available
http://www.merriam-webster.com/dictionary/sufficient (visited November 30,
2016).
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agency knew should have known which documents were sought. See Yeager
Drug Enforcement Admin., 678 F.2d 315, 326 (DC Cir. 1982) (the linchpin
whether agency misreading request avoid the production records
whether the agency able determine precisely what records are being
requested. Here, Judicial Watch extensive clarifying efforts with State
efforts which State solicited from Plaintiff, see demonstrate that there
could have been doubt which records Plaintiff was seeking. 44, 49,
51, 53, 57, 63. State understood the request (or should have understood
it), but instead chose engage endless rounds nitpicking about this word and
that word, enabling delay and stall and ultimately avoid its obligation
produce records for over year and half.
Finally, State uses misleading partial quotes from correspondence between
counsel suggest that Judicial Watch was improperly asking State answer
questions instead produce records. See Resp. Brief and 23, citing 49.
But full review what Judicial Watch wrote demonstrates that this was actually offer resolve lawsuit, and Plaintiff fully understood that State was under
obligation provide information instead records:
The FOIA specifies that parties seeking public information make
request for records. the interest lightening the burden DOS
and expediting its response Judicial Watch request, client
would satisfied with DOS producing the identity current and
former officials, officers and employees who used non-state.gov
addresses conducting State Department business
USCA Case #16-5170
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Filed: 12/09/2016 49. the above language shows, Judicial Watch was offering State way
resolve claims litigation that State could avoid searching for and producing
records wished. Judicial Watch did not claim that State was required
provide this information, nor did claim that Judicial Watch could have asked
State create this information the first instance. State has mischaracterized the
meaning this communication between counsel. State Mischaracterizes Judicial Watch Original FOIA Request
State argues that, although Plaintiff request didn literally pose question,
[i]n reality, that request posed question Resp. Brief But State
assessment not reality. Rather, departure from reality and
mischaracterization. reality, Plaintiff request asked for documents, and
reasonably described discrete set such documents. Only State twisting
Plaintiff words does the actual request ask question. State did not apply
natural reading Judicial Watch request (Resp. Brief but rather applied unnatural and contrived reading some might say pedantic reading which
enabled avoid producing the requested records.
State argument defeated simple reading the FOIA request, which its entirety says:
Any and all records that identify the number and names all current
and former officials, officers, employees the U.S. Department
State from January 20, 2009 the present who used email addresses
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other than their assigned state.gov email addresses conduct
official State Department business
Joint Appendix Obviously, this request seeks records about State
employees using unofficial email conduct government business. Records such the 2012 and 2015 Office Inspector General OIG Reports discussing the
use commercial email instead government email State employees,
Plaintiff discussed its opening brief. Opening Brief 12, citing 70-71
13. stands reason that, the State OIG discussed this problem twice three
years, more records probably exist discussing the problem. But State avoided
producing such records the argument that Judicial Watch request was not
worded correctly. Resp. Brief 14-22. This Court should not reward State
gamesmanship. State Misinterprets the FOIA Statute
State correct that the relevant FOIA standard whether the agency
reading the request was reasonable. Resp. Brief 15, citing Weisberg U.S.
Dep Justice, 745 F.2d 1476, 1489 (D.C. Cir. 1984). State incorrect,
however, argue that its reading the Judicial Watch FOIA request was
reasonable fact was not. Resp. Brief 14-18. FOIA requires federal
agencies produce records when requestor reasonably describes them.
U.S.C. 552(a)(3)(A). But the statute does not otherwise define the term
reasonable. Accordingly, courts may give the term reasonable its ordinary
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meaning when analyzing FOIA claims. fundamental canon statutory
construction that, unless otherwise defined, words will interpreted taking
their ordinary, contemporary, common meaning. Perrin United States, 444
U.S. 37, 42, (1979). reasonable description records therefore one that
fair and sensible, fairly moderately good, accordance with reason.
Judicial Watch request was fair, sensible, and moderately good
description the records sought. was not perfect, but the statute does not
require perfection. However, State reading the request was not reasonable.
State reading was neither fair and sensible nor accordance with reason.
Accordingly, State has violated the plain meaning the statute. defend its actions, State has advanced convoluted legal argument
calling for courts apply the plain meaning standard FOIA requests but not the FOIA statute itself. Resp. Brief 14, 19, 20, 22, 28. State claim that
gave Judicial Watch FOIA request its plain meaning not only inaccurate,
misstates the relevant standard. Resp. Brief 12. The standard whether the
FOIA request reasonably describes the records sought. U.S.C. 552(a)(3)(A).
This even more forgiving than plain meaning standard. Rather, the statutory
test FOIA merely whether reasonable person would understand what records
Merriam-Webster Dictionary, entry for reasonable, available
http://www.merriam-webster.com/dictionary/reasonable (visited November 30,
2016).
USCA Case #16-5170
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were being described. See Yeager Drug Enforcement Admin., 678 F.2d 315,
326 (DC Cir. 1982). Importing the plain meaning standard statutory textual
reading used interpret acts Congress simply the wrong standard use
when reading FOIA requests. know this because the plain meaning standard the correct one
apply U.S.C. 552(a)(3)(A). Congress has already directed State give
FOIA requests fair and sensible interpretation, not textual plain meaning
interpretation. Under the statute, FOIA request must granted its description the records fairly moderately good and accordance with reason.
Judicial Watch FOIA request was fairly moderately good, not better.
State decision hold Judicial Watch request much higher standard than
fairly moderately good was violation the statute.
State focus the placement the single noun modifier all the FOIA
request violates FOIA. Resp. Brief 18, 27. The arguments State advances
would take the words reasonably describe out the statue. Instead, State
appears replacing the words reasonably describe with the phrase perfectly
accurately describe, describes with exact grammatically precision. See Resp.
Brief 18, 27. This not what Congress intended when passed FOIA, the
purpose which ensure the conduct government business transparent
its citizens. The irony that State has gone these lengths avoid responding
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FOIA request about the use unofficial email accounts which itself wellknown FOIA evasion tactic should not lost this Court. State Fails Show its Search was Adequate
State describes its search efforts length, but the only document State was
searching for was the mythical list names all employees using unofficial
emails for government business, document Judicial Watch never asked for and
State knows does not exist. Resp. Brief Naturally, since the document does
not exist, search multiple offices would not uncover it. Id. Accordingly,
State brief only confirms that search for document everyone knows does not
exist will turn records. Resp. Brief 31-34.
Finally, State argues that there reason why its search declaration should
have identified how many hits its electronic search turned before State
decided records were responsive. Resp. Brief 36-37. But State must provide
this kind information satisfy its burden FOIA litigation. Nation Magazine U.S. Customs Service, F.3d 885, 890 (D.C. Cir. 1995). this case,
information about the number electronic search hits would have further
demonstrated that State knew had responsive records its possession. If, for
example, State electronic search turned 100 records discussing employees
using private email for government business, and State produced none those
records because none were lists names, this would undercut State claims that
USCA Case #16-5170
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informed Plaintiff that found 100 documents discussing private email usage but lists, Plaintiff would have immediately responded that those documents were
responsive and precisely what Judicial Watch had asked for. that point, all
remaining arguments about reasonable interpretations and whether State could
determine precisely what records Plaintiff sought would have been academic.
Yeager Drug Enforcement Admin., 678 F.2d 315, 326 (DC Cir. 1982) (the
linchpin whether agency misreading request avoid the production
records whether the agency able determine precisely what records are
being requested. State Argument that the Trial Court was Correct Merely Retread
its Mischaracterizations and Statutory Mistake
This Court review novo, the lower court reasoning need not
dissected. Sussman U.S. Marshals Service, 494 F.3d 1106, 1111-12 (D.C. Cir.
2007). Nevertheless, brief reply State efforts rehabilitate the trial court
decision warranted. Essentially, State argues that trial court cited cases were
applicable Judicial Watch request, and that the cases Judicial Watch cites are
inapplicable. Resp. Brief 29-31. But this argument merely begs the questions
whether State understood which records were sought, and whether Judicial
Watch FOIA request reasonably described the records. already demonstrated,
Judicial Watch did describe the records and State understood the request, the
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trial court misread the statute, applied the wrong line cases, and ignored the
correct lines case. Opening Brief 13-16.
The correct application the facts this case show the trial court violated
certain precedents and misapplied others. The decisions that apply here are those
criticizing agencies for making strict interpretations requests order avoid
producing records. Hemenway Hughes, 601 Supp. 1002, 1005 (D.D.C. 1985)
(an agency must careful not read [a] request strictly that the requester
denied information the agency well knows exists its files... LaCedra
Executive Office for the United States Attorneys, 317 F.3d 345, 348 (D.C. Cir.
2003) (agencies must construe FOIA request liberally the other hand,
cases where requestors asked for records about non-existent lawsuits, where
requestors literally posed interrogatory-style questions agencies, not apply
the case bar and the trial court erred citing them. Kowalczyk Dep
Justice, F.3d 386, 389 (D.C. Cir. 1996) (agency has obligation respond
request asking for documents about nonexistent lawsuit); Moore Bush, 601
Supp. 11, (D.D.C. 2009) (FOIA does not require agencies create new
documents answer written interrogatories).
Conclusion
The record shows that Judicial Watch provided State with information
sufficient determine which documents Judicial Watch sought. Accordingly,
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State behavior was unreasonable under FOIA. Judicial Watch submitted
reasonable request for records, and then clarification that request. State
refused read those words reasonably, but instead gave them irrational
interpretations violation the statute. State unreasonable behavior allowed avoid producing records response Plaintiff FOIA request. The trial court
erred both applying the wrong precedent, and failing apply the correct
precedent. This Court should find and REVERSE.
Dated: December 2016
Respectfully submitted, Chris Fedeli
Chris Fedeli
Lauren Burke
JUDICIAL WATCH, INC.
425 Third Street, SW, Suite 800
Washington, 20024
(202) 646-5172
cfedeli@judicialwatch.org
lburke@judicialwatch.org
Counsel for Plaintiff-Appellant
USCA Case #16-5170
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CERTIFICATE COMPLIANCE
The undersigned certifies that this brief complies with the type-volume
limitations Fed. App. 32(a)(7). The brief, excluding exempted portions,
contains 2,943 words (using Microsoft Word 2010), and has been prepared
proportional Times New Roman, 14-point font. Chris Fedeli
USCA Case #16-5170
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CERTIFICATE SERVICE hereby certify that December 2016, filed via the CM/ECF system
the foregoing Reply Brief Appellant Judicial Watch, Inc. with the Clerk
the Court. Participants the case are registered CM/ECF users and service will
accomplished the Appellate CM/ECF system. also certify that caused eight copies delivered the Clerk Court
via hand delivery. Chris Fedeli