JW v. State Discovery approved 01363
Autogenerated text from PDF
U.S. District Court District Columbia Notice Electronic Filing The following transaction was entered 2016 and filed 5/4/2016 Case Name: JUDICIAL WATCH, INC. DEPARTMENT STATE Case Number: 13-cv-01363-EGS Filer: Document Number: Docket Text: MEMORANDUM AND ORDER regarding the factual and legal basis for narrowly tailored discovery agreed the parties. Signed Judge Emmet Sullivan May 2016. (lcegs4) Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, Plaintiff, Civil Action No. 13-1363 U.S. DEPARTMENT STATE Defendant. MEMORANDUM AND ORDER Background This case presents narrow legal question: did the United States Department State (State Department), good faith, conduct search reasonably calculated uncover all relevant documents response Plaintiff Judicial Watchs Watch) Freedom Information Act (FOIA) (Judicial request? the Court ruled during the February 23, 2016 hearing Judicial Watchs Motion for Discovery under Rule 56(d), questions surrounding the creation, purpose and use the clintonemail.com server must explored through limited discovery before the Court can decide, matter law, whether the Government has conducted adequate search response Judicial Watchs FOIA request. 56(d); Hrg Tr., Docket No. 78: 9-25. See Fed. Civ. Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page The FOIA request issue. The FOIA request issue focuses employment records Ms. Huma Abedin, one former Secretary State Hillary Clintons (~Secretary Clinton ~Mrs. Clinton) closest advisors. Designated special government employee, Ms. Abedin was allowed engage private sector work while also working the State Department. Pl.s Mot. Discovery, Docket No. 15. Specifically, Ms. Abedin served consultant Teneo Holdings and the Clinton Foundation. Id. Teneo led long- time advisor former President Bill Clinton. Id. November 10, 2013, Judicial Watch filed this lawsuit seeking the production the following documents: Any and all SF-50 (notification personnel action) for Ms. Huma Abedin; forms Any and all contracts (including, but not limited to, personal service contracts) between the Department State and Ms. Huma Abedin; and Any and all records regarding, concerning related the authorization for Ms. Huma Abedin represent individual clients and/or otherwise engage outside employment while employed and/or engaged contractual relationship with State. Compl., Docket No. Judicial Watchs request covered the time period January 2010 May 21, 2013. Id. Procedural history. The State Department acknowledged receipt Judicial Watchs FOIA request letter June 2013, but did not Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page substantively respond until after this lawsuit was filed. Compl. 6-8. response this lawsuit, the State Department searched the records the Bureau Human Resources, the Office the Executive Secretariat, the Office the Legal Advisor and the Central Foreign Policy Records. Def.s Mot. Summ. J., Docket 3-4. The State Department produced eight non-exempt records Judicial Watch. Id. The parties stipulated dismissal this case March 14, 2014. Docket No. 12. June 2015, following the revelation the New York Times the clintonemail.com server, the parties agreed that the case should re-opened. See Pl.s Mot. Discovery, Docket No. see also June 19, 2015 Minute Order. Pursuant Court order, the State Department collected and searched federal records that were voluntarily produced Mrs. Clinton, Ms. Abedin and Ms. Cheryl Mills. Def.s Mot. Summ. J., Docket 10. The State Department also searched the four offices listed above for second time. Id. For the first time, however, the Office the Under Secretary for Management was also searched. Id. Search terms agreed upon the parties were used complete these searches, which resulted rolling production pages September 18, 2015; pages October 13, 2015; re-release three documents November 12, 2015; and rerelease two documents full and re-release part one document previously withheld November 13, 2015. Id. and Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page 13. The State Department withheld two Office Government Ethics Form 540s under FOIA exemption Id. November 13, 2015, the State Department filed Motion for Summary Judgment. See Docket No. 47. Judicial Watch responded with Motion for Discovery under Rule 56(d), arguing that limited discovery necessary before can respond the State Departments claim that conducted adequate search. Pl.s Mot. Discovery, Docket No. 48. The parties briefing Judicial Watchs Motion for Discovery was finalized the end January 2016, and February 23, 2016, the Court heard oral argument the motion. See Hrg Tr., Docket No. 59. The Court granted Plaintiffs Motion for Discovery open court and directed the parties submit narrowly tailored discovery proposals for the Courts consideration. Id. March 16, 2016, the State Departments Motion for Summary Judgment was denied without prejudice light the Courts consideration the parties discovery proposals. See March 16, 2016 Minute Order. Although the State Department has not waived its objection discovery, the parties were able reach agreement the relevant scope discovery. See Docket No. 65. The Court applauds the parties cooperative efforts and approves their joint proposal for limited discovery. The purpose this Memorandum and Order explain more detail the basis for Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page the Courts February 28, 2016 decision grant Judicial Watchs request for discovery. Key facts related the clintonemail.com server. Critical facts related the clintonemail.com server preclude legal analysis, this time, whether the State Department conducted adequate search under FOIA. First, the clintonemail.com server was established eight days prior Mrs. Clinton being sworn Secretary State. Hrg Tr. 23:20 24:1. Mrs. Clinton used clintonemail.com email for personal and professional purposes throughout her tenure Secretary State. See Clinton Deel., Docket No. 22. state.gov email electronic device was ever issued Mrs. Clinton from the State Department. Pl.s Mot. Discovery, Docket No. 12. Ms. Abedin was assigned email account the clintonemail.com server well one state.gov. Id. 11. unknown whether any other State Department staff had email account the clintonemail.com server. Hrg Tr. 22: 1-13. However, email communications from January 2009, just several weeks after Mrs. Clinton was sworn in, confirm that senior State Department staff had knowledge the clintonemail.com server. See Docket No. 2-4; see also Hrg Tr. 49: 12-16 (Mr. Myers, counsel for the State Department: think its undisputed that former Secretary Clinton was using the e-mail account correspond with some people who were senior Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page positions the State Department, and that they were necessarily aware the address from which she was sending emails.). Notably, the process which the State Department took possession Mrs. Clinton and Ms. Abedins federal records from the clintonemail.com server was through self-selection Mrs. Clinton, Ms. Abedin, Ms. Mills and their private counsel. Clinton Deel.; see also Docket No. (letters between State Department and private counsel for Mrs. Clinton, Ms. Abedin and Ms. Mills). late January 2009, there was communication among several State Department staff about setting computer off network that then Secretary Clinton could check her email the State Department. See January 24, 2009 email chain, Docket No. 52. August 2011 communication difficulties experienced Secretary Clinton prompted discussion among State Department staff about whether issuing State Department blackberry might solve the problem. Pl.s Reply, Docket No. 51, Exhibit Stephen Mull, Executive Secretary the State Department the time, noted that Secretary Clinton used State issued blackberry, her identity would secret but that the state.gov email account would subject FOIA requests. Id. Ms. Abedin responded lets discuss the state blackberry, doesnt make whole lot sense. Id. Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page Finally, and critically, the January 2016 Office Inspector General report, Evaluation the Department States FOIA Process for Requests Involving the Office the Secretary (OIG Report) notes that although dozens State Department staff communicated with Mrs. Clinton through the clintonemail.com server, there evidence that personnel involved responding FOIA requests were aware Mrs. Clintons clintonemail.com email address. OIG Report 14-15, available https://oig.state.gov/system/files/esp-16-01.pdf. The OIG Report also notes that least one State Department lawyer reported his her belief that the State Department was not responding FOIA requests adequately because Mrs. Clintons emails were excluded from FOIA searches. Id. 15, 64. II. Discussion The purpose FOIA. FOIA was designed Congress pierce the veil administrative secrecy and open agency action the light public scrutiny. Morley C.I.A., Cir. 2007) 508 F.3d 1108, 1114 (internal citations omitted). (D.C. FOIA requires federal agencies disclose all requested agency records, unless one nine statutory exemptions applies. U.S.C. 552(a) and (b). Because disclosure rather than secrecy the dominate objective the Act, the statutory exemptions are narrowly Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page construed. See McKneely United States Dept. Justice, 5675515 (D.D.C. 2015) 2015 (internal citations omitted). Standard for adequate search under FOIA. recurring question FOIA cases whether the agency conducted search reasonably calculated uncover all relevant documents. Asarco Inc. 2009 1138830 U.S. Environmental Protection Agency, (D.D.C. 2009). The defending agency must show beyond material doubt that conducted reasonable search. Weisberg U.S. Dept Justice, 705 F.2d 1344, 1351 (D.C. Cir. 1983). The adequacy agencys search for responsive records measured the reasonableness the effort light the specific request. McKinley FCIC, Supp. (D.D.C. 2001) 807 (quoting Larson Dept State, 565 F.3d. 857, 869 (D.C. Cir. 2009). agency not required search every record system. 790 F.2d 942, 952-53 (D.C. Cir. 1986) See Meeropol Messe, (noting search not presumed unreasonable simply because fails produce all relevant material); (D.C. Cir. 1982) see also Perry Block, 684 F.2d 121, 128 (holding agency need not demonstrate that all responsive documents were found and that other relevant documents could possibly exist). Standard for discovery FOIA case. Discovery rare FOIA cases. Supp. 114, 115 (D.D.C. 2008) Thomas FDA, 587 (Huvelle, J.) (noting that Case 1:13-cv-01363-EGS Document ~discovery Filed 05/04/16 Page extraordinary procedure FOIA action). Discovery should permitted, however, when plaintiff raises sufficient question the agencys good faith processing documents response FOIA request. See, e.g. Citizens for Responsibility Ethics Washington Dept Justice, 05-cv-2078, 2006 1518964 (Sullivan, J.) (D.D.C. June 2006) (permitting discovery FOIA action where the government engaged extreme delay); Foundation E.P.A., see also Landmark Legal 959 Supp. 175 (2013) (ordering discovery FOIA action the question whether senior administrators used personal emails for official business and whether the EPA excluded key officials from their initial search); Landmark Legal Foundation E.P.A., 211, 220 (D.D.C. 2015) Supp. (noting that the behavior the EPA following Landmarks August 2012 FOIA request raised reasonable suspicion wrongdoing, entitling Landmark discovery the possibility that EPA may have purposefully attempted skirt disclosure under FOIA.). Judicial Watch has raised sufficient questions whether the State Department processed its November 2013 FOIA request good faith. Relying the facts discussed above, Judicial Watch raises significant questions its Motion for Discovery about whether the State Department processed documents good faith Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page response Judicial Watchs FOIA request. Judicial Watch therefore entitled limited discovery. The State Department made two primary arguments opposition Plaintiffs Motion for Discovery. First, the State Department argued that did not have possession and control the clintonemail.com server, and therefore could not found have improperly withheld any documents. Discovery, Docket No. Def.s Opp. Pl.s Mot. (citing Reporters Committee for Freedom the Press Kissinger, 445 U.S. 136, 139 (1980) (even document requested under FOIA wrongfully the possession party not agency, the agency which received the document does not improperly withhold those materials its refusal institute retrieval action.). Because the State Department did not possess control Mrs. Clintons server the time Judicial Watchs FOIA request was received, the State Department argued did not withhold any relevant documents. Def.s Opp. Pl.s Mot. (Plaintiffs concession that the State Department did not possess former Secretary Clintons emails the time Plaintiff submitted its FOIA request, more than three months after she left the State Department, should dispositive.). The Court unpersuaded the State Departments reliance Kissinger. The Kissinger Court explicitly did not address whether the withholding standard must measured from the Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page time request received under circumstances where shown that agency purposefully routed document out agency possession order circumvent FOIA request. Id. 167, Here, Judicial Watch alleges that the State Department and Mrs. Clinton sought deliberately thwart FOIA through the creation and use clintonemail.com. Discovery, Docket No. Pl.s Mot. This allegation goes directly the type circumstance Kissinger did not address. Second, the State Department argued that has done all obligated under FOIA searching the documents returned Mrs. Clinton, Ms. Abedin and Ms. Mills. Hrg Tr. 61- 62. support this argument, the State Department relied Judicial Watch John Kerry, Federal Records Act (FRA) case where the Court found Judicial Watchs claims moot light the efforts the State Department had taken recover federal See records from Mrs. Clinton and other government officials. Civil Action No. 15-785 (JEB), Docket No. 21. However, the relevant standards under the FRA and FOIA are different. Under the FRA, plaintiffs right compel referral the Attorney General limited situations where agency has taken either minimal action remedy the removal destruction federal records. F.2d 282, 296 Id. (citing Armstrong Bush, 924 (D.C. Cir. 1991). Although the State Department has taken some action recover federal records related this Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page case, those efforts not resolve the question whether the agencys search response Judicial Watchs FOIA request was reasonable. Judge Lamberth recently observed [t]he State Departments willingness now search documents voluntarily turned over the Department Secretary Clinton and other officials hardly transforms such search into adequate reasonable one. See Civil Action No. 14-1242 (RCL), Docket No. 39. sum, the circumstances surrounding approval Mrs. Clintons use clintonemail.com for official government business, well the manner which was operated, are issues that need explored discovery enable the Court resolve, matter law, the adequacy the State Departments search relevant records response Judicial Watchs FOIA request. III. Conclusion Having considered Plaintiffs proposed plan, States response, Plaintiffs reply, and the parties jointly proposed order, and recognizing that Defendant has not waived its objection discovery, hereby ORDERED that: The scope permissible discovery shall follows: the creation and operation clintonemail.com for State Department business, well the State Departments approach and practice for processing FOIA requests that potentially implicated former Secretary Clintons and Ms. Abedins emails and States processing the FOIA request that the subject this action. Plaintiff Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page not entitled discovery matters unrelated whether State conducted adequate search response Plaintiffs FOIA request, including without limitation: the substantive information sought Plaintiff its FOIA request this case, which involves the employment status single employee; the storage, handling, transmission, protection classified information, including cybersecurity issues; and any pending FBI law enforcement investigations. Plaintiff intends take depositions the following individuals and designees: Stephen Mull (Executive Secretary the State Department from June 2009 October 2012 and suggested that Mrs. Clinton issued State Department BlackBerry, which would protect her identity and would also subject FOIA requests); Lewis Lukens (Exe Director the Executive Secretariat from 2008 2011 and emailed with Patrick Kennedy and Cheryl Mills about setting computer for Mrs. Clinton check her clintonemail.com email account Patrick Kennedy (Under Secretary for Management since 2007 and the Secretary States principal advisor management issues, including technology and information services); 30(b) (6) deposition(s) Defendant regarding the processing FOIA requests, including Plaintiffs FOIA request, for emails Mrs. Clinton and Ms. Abedin both during Mrs. Clintons tenure Secretary State and after; Cheryl Mills (Mrs. Clintons Chief Staff throughout her four years Secretary State); Huma Abedin (Mrs. Clintons Deputy Chief Staff and senior advisor Mrs. Clinton throughout her four years Secretary State and also had email account clintonemail.com); Bryan Pagliano (State Department Schedule employee who has been reported have serviced and maintained the Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page server that hosted the clintonemail.com system during Mrs. Clintons tenure Secretary State); Plaintiff reserves the right seek the Courts permission take the deposition Donald Reid later time, and State reserves the right object. (Reid Senior Coordinator for Security infrastructure, Bureau Diplomatic Security since 2003 and was involved early discussions about Mrs. Clinton using her BlackBerry and other devices conduct official State Department business);and Based information learned during discovery, the deposition Mrs. Clinton may necessary. Plaintiff believes Mrs. Clintons testimony required, will request permission from the Court the appropriate time. the conclusion deposition State may elect good faith the record have period three business days following the time that deposition transcript audiovisual recording made available the parties within which review those portions the transcript audiovisual recording that may contain classified information, information specifically exempted from disclosure statute, information about any pending FBI law enforcement investigations, and, necessary, seek order precluding public release, quotation paraphrase any inadvertently disclosed classified information, information specifically exempted from disclosure statute, information about any pending FBI law enforcement investigations. The decision elect the threebusiness-day period States sole discretion and may not challenged. Discovery shall conducted pursuant the Federal Rules Civil Procedure, subject the scope and limitations herein. Defendant shall serve its answers and any objections the four interrogatories set forth Plaintiffs proposed discovery plan, ECF No. 58-1 (Mar. 15, 2016), within days the Courts order. Those interrogatories include: Case 1:13-cv-01363-EGS Document Filed 05/04/16 Page Who was responsible for processing and/or responding record requests, including FOIA requests, concerning emails Mrs. Clinton and other employees the Office the Secretary; Who was responsible for the inventorying other accounting Mrs. Clintons and Ms. Abedin emails, records, and information; Who was responsible for responding Plaintiffs FOIA request from the date submission the present; and Which State Department officials and employees had and/or used account the clintonemail.com system conduct official government business. Discovery shall completed within eight weeks the Courts order. Plaintiff reserves the right seek additional time necessary, and Defendant reserves the right object. Plaintiff must seek the Courts permission conduct discovery beyond the depositions and the interrogatories identified above, and Defendant reserves the right object. ORDERED. Emmet Sullivan United States District Court May 2016.