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JW v. State Opinion 00689

JW v. State Opinion 00689

Page 1: JW v. State Opinion 00689


Number of Pages:22

Date Created:September 30, 2017

Date Uploaded to the Library:October 03, 2017

Tags:00689, Petraeus, Stein, Pagliano, Opinion, enforcement, Exemption, ACLU, justice, Secretary, Hillary Clinton, clinton, filed, White House, State Department, document, records, FBI, Supreme Court, department, FOIA, IRS, CIA

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Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
Civil Action No. 15-689 (RDM)
MEMORANDUM OPINION AND ORDER March 2015, Plaintiff Judicial Watch submitted three Freedom Information Act FOIA U.S.C. 552, requests for records the U.S. Department State. Those requests
sought release records relating former Secretary State Hillary Clinton use non email address and email server. See Dkt. 22-3 21, 31. The
State Department did not provide timely response any the three requests, prompting
Judicial Watch file this action May 2015. See Dkt. Subsequently, the State
Department conducted extensive search, identified six responsive documents, released five
those documents Judicial Watch with partial redactions, and withheld one full. See Dkt. 221 Dkt.
The parties have now cross-moved for summary judgment. Dkt. 22; Dkt. 26. Those
motions raise three questions: First, did the State Department properly withhold the Report
Investigation ROI for former State Department employee Bryan Pagliano? Second, there
any reasonably segregable, non-exempt information the ROI that the State Department should
have released Judicial Watch? Third, did the State Department properly redact portions
email chain between Secretary Clinton and General David Petraeus? For the reasons explained
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
below, the Court concludes that the answer the first two questions yes, and that the
answer the third question is, part, yes, and, part, perhaps.
Accordingly, the Court will grant part and deny part the State Department motion
for summary judgment and will deny Judicial Watch cross-motion. BACKGROUND
Between March 2015, and March 2015, Judicial Watch submitted three FOIA
requests the State Department. Dkt. 22-4 (Def. SUMF 1). The first, dated March
sought records relating Secretary Clinton use non- email address, including
records concerning security, classification, preservation, and compliance with the Federal
Records Act and/or [FOIA]. Dkt. 22-3 Judicial Watch second request, dated March
sought communications between officials the State Department and White House
concerning Secretary Clinton use non- email addresses. Id. 21. And the
third request, also dated March sought records related expenses incurred the creation,
maintenance[,] and/or use the email server domain. Id. 31. October 30, 2015, the State Department completed its search for records potentially
responsive [Judicial Watch requests, locating approximately 16,900 pages potentially
responsive documents. Dkt. The parties agreed that the State Department would
complete its review and production the records January 20, 2016, id. and, that date,
the Department produced three documents Judicial Watch, Dkt. 22-4 (Def. SUMF 7). also informed Judicial Watch that was withholding fourth document full ROI
created part the background investigation into Bryan Pagliano, which was prepared the
course considering his appointment Schedule position the Department. Dkt. 26-1 13; see also Dkt. 22-4 (Def. SUMF 8). Prior his appointment, Pagliano ran
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
technology for the Clinton for President campaign, Dkt. 26-1 13, and, while the State
Department, served specialist Secretary Clinton, Dkt. (Pl. SUMF
13). mid-2016, the parties each moved for summary judgment. See Dkt. 17; Dkt. 18.
Among other issues, that original round briefing raised the question whether the State
Department had conducted adequate search for responsive records. See Dkt.
July 12, 2016, however, the FBI informed the State Department that had obtained certain
information that may include [State Department] agency records and indicated that would
provid[e] this information [the Department] for review and subsequent FOIA processing
appropriate. Dkt. 22-3 44. The FBI transferred such information [the] State
[Department] July and August 2016, and the Department agreed conduct searches the
information being transferred for records responsive [two of] [Judicial Watch FOIA
requests. Dkt. 22-2 (Second Stein Decl. 64). After reviewing the newly acquired
documents, the State Department released two additional documents Judicial Watch, including email exchange between Secretary Clinton and General David Petraeus. Dkt. 22-4
(Def. SUMF 11). That email exchange involved staffing issue and recommendation
regarding dealing with foreign leader. Dkt. 22-1 18. Because Judicial Watch indicated that wishe[d] add challenge[s] [to] the redactions applied the email exchange and the
adequacy [State supplemental search its initial set challenges, the parties propose[d]
that the Court deny the pending cross-motions for summary judgment moot and set new
schedule for summary judgment briefing that would encompass all the matters currently issue the litigation. Dkt. The Court accepted the parties proposal, see Minute
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
Order (Oct. 28, 2016), and the parties subsequently filed the cross-motions for summary
judgment that are currently before the Court, see Dkt. 22; Dkt. 26.
The Freedom Information Act premised the notion that informed citizenry
vital the functioning democratic society, needed check against corruption and hold
the governors accountable the governed. NLRB Robbins Tire Rubber Co., 437 U.S. 214,
242 (1978). thus mandates that agency disclose records request, unless they fall within
one nine exemptions. These exemptions are explicitly made exclusive and must narrowly
construed. Milner Dep Navy, 562 U.S. 562, 565 (2011) (citation and internal quotation
marks omitted). FOIA cases are typically resolved motions for summary judgment under
Federal Rule Civil Procedure 56. See, e.g., Shapiro U.S. Dep Justice, 153 Supp.
253, 268 (D.D.C. 2016). prevail summary judgment motion, the moving party must
demonstrate that there are genuine issues material fact and that she entitled
judgment matter law. See Fed. Civ. 56(a); Celotex Corp. Catrett, 477 U.S. 317,
325 (1986). FOIA action, the Court may award summary judgment agency solely
the basis information provided affidavits declarations that describe the justifications
for nondisclosure [of records] with reasonably specific detail and are not controverted
either contrary evidence the record nor evidence agency bad faith. Thomas FCC,
534 Supp. 144, 145 (D.D.C. 2008) (alterations original) (quoting Military Audit Project Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). The Court reviews the agency decision
novo, and the agency bears the burden sustaining its action. U.S.C. 552(a)(4)(B).
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
Pagliano ROI
The State Department asserts that properly withheld Pagliano ROI full under FOIA
Exemptions 7(C) and 7(E). Dkt. 22-1 17. Those exemptions apply records compiled
for law enforcement purposes, the disclosure which could reasonably expected
constitute unwarranted invasion personal privacy, U.S.C. 552(b)(7)(C), would
disclose techniques and procedures for law enforcement investigations, id. 552(b)(7)(E).
The Department further argues that, after review[ing] [the ROI] line-by-line basis, has determined that there additional non-exempt information that may reasonably
segregated and released. Dkt. 22-1 20. Judicial Watch, turn, responds that the State
Department has failed satisfy Exemption threshold requirement that the ROI was
compiled for law enforcement purposes, Dkt. 10; that the Exemption 7(C) balancing
test favors disclosure, id. 13; that the Department has failed demonstrate that
information contained the ROI would reveal law enforcement techniques within the meaning Exemption 7(E), id. 13; and that the Court should perform camera review the ROI determine there are any segregable portions that can released, id. 17.1
Exemption 7(C)
Exemption 7(C) protects from disclosure records information compiled for law
enforcement purposes, but only the extent that disclosure could reasonably expected
constitute unwarranted invasion personal privacy. U.S.C. 552(b)(7)(C). Accordingly,
The State Department also invokes FOIA Exemption justify withholding the ROI full,
but because the Court sustains the Department action under Exemption need not consider
whether this additional exemption also available. See Roth U.S. Dep Justice, 642 F.3d
1161, 1173 (D.C. Cir. 2011) (noting that Exemption 7(C) broader protections necessarily
apply all information that would fall within the scope Exemption see also Bartko
U.S. Dep Justice, Supp. 167, 171 (D.D.C. 2015).
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page invoke Exemption 7(C), the State Department must satisfy two-part test: First, must
make threshold showing that [Pagliano ROI] w[as] compiled for law enforcement
purpose. Lindsey FBI, --- Supp. ---, No. 16-2302, 2017 4179886, (D.D.C.
Sept. 20, 2017) (internal quotation marks omitted). Second, must demonstrate that disclosure the ROI could reasonably expected constitute unwarranted invasion personal
privacy. Tracy U.S. Dep Justice, 191 Supp. 83, (D.D.C. 2016) (quoting U.S.C.
Compiled for Law Enforcement Purposes establish that Pagliano ROI was compiled for law enforcement purposes, the State
Department need only establish rational nexus between the investigation and one [the
Department law enforcement duties and connection between individual incident and
possible security risk violation federal law. Blackwell FBI, 646 F.3d 37, (D.C. Cir.
2011) (quoting Campbell Dep Justice, 164 F.3d 20, (D.C. Cir. 1998)). The term law
enforcement Exemption refers the act enforcing the law, both civil and criminal.
Pub. Emps. for Envtl. Responsibility U.S. Section, Int Boundary Water Comm (PEER),
740 F.3d 195, 203 (D.C. Cir. 2014).
The Department argues that Pagliano ROI meets that standard because was created State Bureau Diplomatic Security part security clearance background
investigation. Dkt. 22-1 (citing Dkt. 22-2 29, (Second Stein Decl. 77, 85)).
asserts that the law enforcement arm State, and that the ROI investigative
document utilized law enforcement entities for security clearance related purposes.
Id. (quoting Dkt. 22-2 (Second Stein Decl. 77)). Judicial Watch, for its part,
responds that the ROI merely report memorializing required, routine background
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
check/investigation that done for all high level employees and that performed
administrative duty. Dkt. 10.
The State Department has the better the argument. well established that
[b]ackground investigations conducted assess applicant qualifications, such [an
agency clearance and investigatory processes, inherently relate law enforcement. Morley CIA, 508 F.3d 1108, 1128 (D.C. Cir. 2007) (internal quotation marks omitted). The D.C.
Circuit decision Mittleman Office Personnel Management, F.3d 1240 (D.C. Cir.
1996), instructive. that case, the plaintiff requested copies [the] investigative file that
the Office Personnel Management OPM had compiled during background investigation connection with her eligibility for critical sensitive security clearance, and OPM
withheld them pursuant Exemption 7(D). Mittleman, F.3d 1241 42. The plaintiff
claimed that Exemption 7(D) did not apply her background check records because they were
not compiled for law enforcement purposes. Id. 1242. But the Court Appeals rejected
the argument, observing that [t]he principal purpose background investigation ensure
that prospective employee has not broken the law engaged other conduct making her
ineligible for the position. Id. 1243. Because the background check helps determine
whether there are any law enforcement security issues applicant past that could
affect her ability carry out the position, the D.C. Circuit concluded that OPM background
investigation information was compiled for law enforcement purposes. Id. (internal quotation
marks and alterations omitted).
The same conclusion holds here. support its position, the State Department offers
the declaration Eric Stein, the Acting Co-Director the Office Information Programs and
Services. Dkt. 22-2 (Second Stein Decl. 1). Stein attests that Pagliano ROI was
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
created DS, the law enforcement arm State that responsible for protect[ing] people,
information, and property and conduct[ing] personnel security investigations. Dkt. 22-2
(Second Stein Decl. 76). ROI, Stein further attests, investigative document utilized law enforcement and personnel adjudication entities within for the purpose
investigating the private background individual for security clearance related purposes
and/or adjudication suitability for sensitive position within the U.S. Government. Id.
(Second Stein Decl. 77). prepared part Single Scope Background Investigation SSBI which type security clearance investigation used determine whether the
subject [of the SSBI] possesses sufficient reliability, trustworthiness, and ability protect
classified information and hold sensitive government position. Dkt. 22-2 (Second
Stein Decl. 85). other words, the State Department produces ROIs part process determine potential employee has any law enforcement- security-related issues his
background that might indicate that should not entrusted with classified information that might pose security risk the Department.
Stein declaration which entitled presumption good faith, see Clemente
FBI, 867 F.3d 111, 117 (D.C. Cir. 2017) places this case all fours with the D.C. Circuit
decisions Mittleman and Morley, and Judicial Watch makes effort distinguish those
cases. addition, multiple decisions this Court have concluded that records related
background investigations fall within Exemption ambit,2 and decision the Northern
See, e.g., Henderson Office the Dir. Nat Intelligence, 151 Supp. 170, 175
(D.D.C. 2016) (citing Morley and Mittleman conclude that documents set[ting] forth the
[background check investigation] process used the defendants their efforts prevent bad
actors from obtaining access sensitive government information satisfied Exemption law
enforcement purpose requirement); Archibald U.S. Dep Justice, 950 Supp. 80,
(D.D.C. 2013) (determining that Exemption applied the background check presidential
candidate and citing Mittleman for the proposition that background checks nature implicate
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
District Illinois has applied Mittleman analysis the specific situation now before the
Court, concluding that documents related [DS background check applicant satisfied
Exemption compiled for law enforcement purposes requirement, Erwin U.S. Dep
State, No. 11-C-6513, 2013 6452758, (N.D. Ill. Dec. 2013).
The Court, accordingly, concludes that the State Department has demonstrated that
Pagliano ROI was compiled for law enforcement purposes within the meaning Exemption
Next, the Court must determine whether release Pagliano ROI could reasonably
expected constitute unwarranted invasion personal privacy. U.S.C. 552(b)(7)(C). deciding whether the release [Pagliano ROI] constitutes unwarranted invasion
privacy under Exemption 7(C), ACLU U.S. Dep Justice, 655 F.3d (D.C. Cir. 2011),
the Court must balance the public interest [its] disclosure against the [privacy] interest
Congress intended the Exemption protect, id. (quoting U.S. Dep Justice Reporters
Comm. for Freedom the Press, 489 U.S. 749, 776 (1989)) (second alteration original).
Here, the State Department concluded, see Dkt. 22-2 30, (Second Stein Decl. 80,
87, 89), that balance tips decisively favor the Department decision withhold the ROI.
First, the privacy interest stake weighty one. Pagliano ROI was produced after
security clearance investigation that require[d] intensely personal set inquiries into [his]
life, including examination his psychological conditions, alcohol consumption, [and]
law enforcement interests Doe U.S. Dep Justice, 790 Supp. 17, (D.D.C. 1992)
(concluding that [i]nvestigative background check[] performed the FBI met Exemption threshold requirement because its principal purpose was assure that prospective
Justice Department employee had not himself broken the law, and determine whether there
[we]re any law enforcement security issues his past that could affect his ability carry
out the Department mission
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
sexual behavior. Id. (Second Stein Decl. 86). result, his ROI contained
personal information pertaining his relationships, character assessments, financial details,
and medical information, well information pertaining third parties interviewed the
State Department during the investigation. Dkt. 22-2 (Second Stein Decl. 87). The
Supreme Court has held categorical matter that third party request for law
enforcement records information about private citizen can reasonably expected invade
that citizen privacy, ACLU, 655 F.3d (quoting Reporters Comm., 489 U.S. 780), and difficult contemplate agency record with more pronounced privacy interest than ROI
produced part comprehensive background check that analyzes the subject
psychological conditions, alcohol consumption, [and] sexual behavior. Cf. Qui FBI,
F.3d 1222, 1230 (D.C. Cir. 1996) [W]hile true that [g]overnment officials may have
somewhat diminished privacy interest they not surrender all rights personal privacy
when they accept public appointment. (internal quotation marks and alteration omitted)). the other side the scale, the Court must weigh the extent which disclosure
the ROI would further the basic purpose FOIA, which open agency action the
light public scrutiny and advance citizens right informed about what their
government to. ACLU, 655 F.3d (quoting Reporters Comm., 489 U.S. 772 73).
Records that reveal[] little nothing about agency own conduct not further the public
interest embraced Exemption 7(C); rather, information that sheds light agency
performance its statutory duties [that] falls squarely within th[e] statutory purpose the
exemption. Reporters Comm., 489 U.S. 773 (internal quotation marks omitted). Judicial
Watch, however, has offered little basis for the Court conclude that the public interest sought advanced significant one, [that is] interest more specific than having the
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
information for its own sake and that the requested disclosure likely advance that
interest. Nat Archives and Records Admin. Favish, 541 U.S. 157, 172 (2004). Instead,
merely asserts that the public interest knowing more about the employee [who] maintained and serviced the private email server system enormous, Dkt. 12, and
claims that the [r]elease Pagliano ROI will reveal much about [the] State Department
conduct performing its investigative obligation providing Pagliano security clearance,
Dkt. and may shed further light the truth the Clinton email arrangement, Dkt. 11.
After balancing these competing interests, the Court concludes that the scale tips favor the State Department decision withhold Pagliano ROI. First, Judicial Watch offers
reason believe other than its bare speculation that the ROI might shed light Secretary
Clinton use the server non- email address. See Favish,
541 U.S. 174 (explaining that where there privacy interest protected Exemption 7(C)
and the public interest being asserted show that responsible officials acted improperly
the performance their duties, the requester must establish more than bare suspicion order obtain disclosure Second, whatever public interest there might learning intimate
personal details about State Department employee tasked with high-profile position, that
interest not the type contemplated Exemption 7(C). The information collected during
Pagliano background check and summarized the ROI details about his personal
relationships, mental and physical health, and financial history provides minimal, any,
insight about how State conducts its business. Third, the fact that the State Department placed
great trust and confidence Pagliano does nothing distinguish him from thousands other
government employees and members the military who perform sensitive duties enormous
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
national importance and who like Pagliano have substantial privacy interests the
information contained their background checks and ROIs.
The Court, therefore, concludes that State properly withheld Pagliano ROI the basis Exemption 7(C).
Exemption 7(E)
The State Department also invokes FOIA Exemption 7(E) protect Pagliano ROI.
Like Exemption 7(C), this exemption requires two-step inquiry. The first step, moreover, the
same under both provisions that is, the Court must determine whether the records were
compiled for law enforcement purposes. Because the Court has just resolved that question for
purposes Exemption 7(C), need not repeat that analysis here.
The second step requires additional discussion, but equally straightforward. The Court
must determine whether release those records would disclose techniques and procedures for
law enforcement investigations prosecutions, would disclose guidelines for law
enforcement investigations prosecutions such disclosure could reasonably expected
risk circumvention the law. U.S.C. 552(b)(7)(E). the D.C. Circuit has observed, there some disagreement about whether the final clause, which asks whether the disclosure would
pose risk circumvention the law, applies only the disclosure guidelines
whether also applies the disclosure techniques and procedures. PEER, 740 F.3d 204
n.4. But, the Court Appeals has also observed, given the low bar posed the risk
circumvention law requirement, not clear that the difference matters much practice.
Treating the risk circumvention law requirement applicable the disclosure
techniques and procedures, the D.C. Circuit has done the past, see Blackwell, 646 F.3d
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page 42, the Court nonetheless concludes that the Pagliano ROI protected Exemption 7(E).
Exemption 7(E) sets relatively low bar for the agency justify withholding: Rather than
requiring highly specific burden showing how the law will circumvented, [E]xemption
7(E) only requires that the [agency] demonstrate logically how the release the requested
information might create risk circumvention the law. Id. (internal quotation marks
omitted). Reduced its minimum, the exemption requires only chance reasonably
expected risk. Mayer Brown LLP IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009). self-evident that information revealing security clearance procedures could render
those procedures vulnerable and weaken their effectiveness uncovering background
information potential candidates. Morley, 508 F.3d 1129. Yet, that precisely the type information that Stein has attested would disclosed the Pagliano ROI were released.
asserts, for example, that [t]he ROI contains information demonstrating specific techniques and
procedures used personnel while conducting background investigations, including
methods for verifying information and cooperating with other law enforcement bodies. Dkt.
22-2 (Second Stein Decl. 90). That assertion comports with common sense. Knowing
what information personnel consider, where they look, and how they evaluate that
information necessarily reveals their techniques and procedures, and disclosing that information
poses chance reasonably expected risk circumvention.
The Court, accordingly, concludes that the State Department reliance Exemption
7(E) was also justified.
The Court must also consider whether the State Department has met its burden
demonstrating that there was reasonably segregable, non-exempt information contained the
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
ROI that could release response Judicial Watch FOIA request. FOIA provides that
[a]ny reasonably segregable portion record shall provided any person requesting such
record after deletion the portions which are exempt. U.S.C. 552(b). While the
segregability requirement applies all documents and all exemptions the FOIA, the courts
have recognized that segregation not required where the exempt and nonexempt information
are inextricably intertwined, such that the excision exempt information would impose
significant costs the agency and produce edited document with little informational
value. Covington McLeod, 646 Supp. 66, (D.D.C. 2009) (quoting Mays Drug
Enf Admin., 234 F.3d 1324, 1327 (D.C. Cir. 2000)) (first citation omitted). The government
bears the burden justifying nondisclosure, Mead Data Cent., Inc. U.S. Dep the Air
Force, 566 F.2d 242, 260 (D.C. Cir. 1977), and must show with reasonable specificity why the
documents cannot further segregated, Armstrong Exec. Office the President, F.3d
575, 578 (D.C. Cir. 1996) (internal quotation marks omitted). carry this burden, the
government must provide detailed justification for [withheld records nonsegregability. Johnson Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)
(quoting Mead, 566 F.2d 261).
The State Department has met its burden here. The Stein declaration explains that the
Department conducted line-by-line review the ROI and determined that reasonably
segregable, non-exempt material could released. Dkt. 22-2 (Second Stein Decl. 91).
Stein also explains that, [b]ecause the nature ROI for SSBI inquire into the most
intimate aspects individual life[,] the entire ROI involves privacy-sensitive material.
Id. (Second Stein Decl. 91). This sensitive, personal information, moreover, was
inextricably intertwined with discussion and analysis the information, and,
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
accordingly, there was additional, meaningful, non-exempt information that could
reasonably segregated and released. Id. (Second Stein Decl. 87). And, difficult
imagine how the State Department could disclose portions the ROI without revealing its
underlying law enforcement techniques and procedures the fact that even seemingly
innocuous detail appears the report conveys something about what the Department believes
significant might lead other relevant information.
For its part, Judicial Watch does not meaningfully contest the adequacy accuracy
State segregability analysis. Rather, conclusory fashion, states that [t]here are certainly
facts that could released without invading Pagliano privacy, and then requests that the
Court conduct camera review the [ROI] because State has insufficiently provided
enough detail. Dkt. 17. The Court declines the invitation. The D.C. Circuit has
instructed that district court should conduct camera review two situations First,
the affidavits are conclusory and second, there evidence agency bad faith. Carter U.S. Dep Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987). Although camera
inspection may appropriate when the requested documents are few number and short
length, id. 393 (quoting Allen CIA, 636 F.2d 1287, 1298 (D.C. Cir. 1980)), courts should
not resort[] [it] matter course, simply the theory that can hurt, Qui on,
F.3d 1228 (quoting Ray Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978)). Here, although the
ROI relatively short sixteen pages Stein attests that the Department engaged line-byline review ensure that there was reasonably segregable information could release, and
Judicial Watch points evidence that State acted bad faith. such, there reason for
Judicial Watch cross-motion for summary judgment asks the Court for camera review
the time records this case. Dkt. 17. Because time records are issue, the
Court assumes that Judicial Watch meant seek camera review the ROI.
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
the Court review the ROI camera, and the Court concludes that the Department has
adequately demonstrated that there was reasonably segregable, non-exempt material the
ROI that could release Judicial Watch.
Accordingly, the Court will grant summary judgment the State Department its
withholding full Pagliano ROI.
Email Chain
Judicial Watch also challenges the State Department invocation Exemptions and justify its partial redaction the email chain between Secretary Clinton and General Petraeus.
Dkt. 16. asserts that the email chain, which discussed potential personnel decisions, properly characterized few personal messages between friends and indicates
discussion about strategy, policy government action that would implicate Exemption
concern countering the chilling effect that disclosing policy deliberations might have
similar communications the future. Id. 15. Judicial Watch also argues that the
identification any third party discussed [a] subject personal favor between highranking friends does not constitute unwarranted invasion privacy such that his her
name should redacted under Exemption Id. 16. The Court addresses each exemption
Exemption shields from disclosure inter-agency intra-agency memorandums
letters that would not available law party other than agency litigation with the
agency. U.S.C. 552(b)(5). The deliberative process privilege one the litigation
privileges incorporated into Exemption allowing agency withhold all papers which
reflect the agency group thinking the process working out its policy and determining what
its law shall be. Elec. Frontier Found. U.S. Dep Justice, 739 F.3d (D.C. Cir.
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
2014) (quoting NLRB Sears, Roebuck Co., 421 U.S. 132, 153 (1975)). The privilege
limited documents that are predecisional and deliberative, meaning they reflect advisory
opinions, recommendations, and deliberations comprising part process which
governmental decisions and policies are formulated. Id. (internal quotation marks and
alteration omitted); see also Judicial Watch, Inc. FDA, 449 F.3d 141, 151 (D.C. Cir.
2006) [A] document [is] predecisional was generated before the adoption agency
policy and deliberative reflects the give-and-take the consultative process. Where
records reflect such predecisional deliberations, the privilege protects agencies from being
forced operate fishbowl. Elec. Frontier Found., 739 F.3d (internal quotation
marks omitted).
The State Department explains that the information withheld [in the email chain]
contains the author opinions and recommendations potential personnel appointments [at
the State Department] and suggestions for upcoming diplomatic engagement with foreign
head state. Dkt. 22-1 (citing Dkt. 22-2 (Second Stein Decl. 82)). further
asserts that the withheld material predecisional because the actions discussed had not yet
been taken, and contends that release the email chain full would have chilling effect
the open and frank exchange ideas, recommendations, and opinions that occurs when U.S.
Government officials are developing strategy for official action. Id. Judicial Watch responds
that the chain merely inquiry between friends regarding personal favor, and disputes
that its disclosure would have chilling effect any future communications. Dkt. 15.
After review the redacted email exchange, Dkt. 26-1 and Stein declaration,
Dkt. 22-2 (Second Stein Decl. 83), the Court concludes that the State Department
appropriately redacted the documents pursuant Exemption First, the Court notes that,
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
although the email chain straddles the time before and after Secretary Clinton appointment, the
Department relies Exemption protect only communications following her appointment. result, the Court not confronted with the question whether the deliberative process
privilege applies those engaged the transition between administrations nominees who
are preparing take the duties government. Cf. Wolfe Dep Health Human Servs.,
711 F.2d 1077 (D.C. Cir. 1983) (evaluating whether records produced transition team
members are agency records subject FOIA).
Second, the Court unpersuaded that this email exchange properly characterized
merely friendly correspondence between intimate friend[s], Dkt. 15, that necessarily
falls outside the reach the deliberative process privilege. the contrary, the exchange was
between the Commander the U.S. Central Command and the U.S. Secretary State, and
involved suggested actions taken toward particular foreign head state and potential
personnel appointments the Department State. Dkt. 22-2 (Second Stein Decl. 82).
That description represents precisely the type predecisional agency[] group thinking meant work[] out State policy two its key responsibilities staffing itself and interacting
with foreign dignitaries. Elec. Frontier Found., 739 F.3d (internal quotation marks omitted).
Third, the unredacted portions the exchange provided Judicial Watch corroborate
Stein description. General Petraeus, for example, [s]trongly recommend[s] that she take
some action. Dkt. 26-1 The Court, accordingly, has reason doubt Stein
representation that these exchanges between senior government officials about foreign affairs
and appointments fall well within the scope the deliberative process privilege and are thus
protected Exemption
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
The Court, therefore, concludes that State properly redacted the email exchange pursuant Exemption deliberative process privilege.
Exemption protects information about individuals personnel and medical files and
similar files when its disclosure would constitute clearly unwarranted invasion personal
privacy. Shapiro U.S. Dep Justice, 153 Supp. 253, 257 (D.D.C. 2016) (quoting
U.S.C. 552(b)(6)). The D.C. Circuit has explained that the exemption can sweep bits
personal information, such names, Judicial Watch, 449 F.3d 152, but the mere fact that
agency file record contains personal, identifying information not enough invoke
Exemption the information must also such nature that its disclosure would constitute clearly unwarranted privacy invasion, Nat Ass Home Builders Norton, 309 F.3d 26, (D.C. Cir. 2002). make that determination, the Court [must] employ[] balancing test,
weighing the private interest involved (namely the individual right privacy) against the
public interest (namely, the basic purpose [FOIA], which open agency action the light public scrutiny). People for the Am. Way Found. Nat Park Serv., 503 Supp. 284,
304 (D.D.C. 2007) (quoting Judicial Watch, 449 F.3d 153). undertaking this analysis, the
[C]ourt guided the instruction that, under Exemption the presumption favor
disclosure strong can found anywhere [FOIA]. Nat Ass Home Builders, 309
F.3d (internal quotation marks omitted).
Judicial Watch has disclaimed any objection State redaction personal email
addresses and contact information and challenges only its decision redact the names any
third party discussed the email chain potential personnel appointment. Dkt. 16; see
also Dkt. 14. number additional redactions, moreover, were covered both
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
Exemptions and and because the Court has already concluded that the Department has
appropriately invoked Exemption the Court need not consider whether Exemption also
applies those redactions. This, then, leaves only two redactions. The first contained
January 14, 2009, email from General Petraeus Secretary Clinton. redacted form, that
email says: P.S. Any feedback possibility keeping [redacted] until his replacement
confirmed? you recall this was personal request from [redacted]. Best Dave. Dkt. 26-1 And the second, again sent from General Petraeus Secretary Clinton states: Thx for
making happen [redacted]. Great news. Id. determine whether the State Department properly redacted the names from those
emails under Exemption the Court must balance the privacy interest the individuals with
respect the public disclosure their identities against the public interest that disclosure. so, the Court must first determine whether disclosure would compromise substantial,
opposed minimis, privacy interest. Nat Ass Retired Fed. Emps. Horner, 879
F.2d 873, 874 (D.C. Cir. 1989). so, the Court must then weigh that privacy interest nondisclosure against the public interest the release records order determine whether,
balance, disclosure would work clearly unwarranted invasion personal privacy. Id.
There little evidence argument before the Court with respect how strike this
balance. its opening brief, the State Department merely asserts that [r]elease this
information could subject these individuals unwanted attention and harassing inquiries, Dkt.
22-1 20, and, its reply brief, simply adds that Plaintiff provides argument
why the release the names personnel suggested for appointment under different
administration, more than eight years ago, would any public interest today, Dkt. 14.
The analysis offered Judicial Watch, for its part, equally brief and conclusory. merely
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
asserts that identification any third party discussed [the] subject personal favor
between high-ranking friends the email exchange issue does not constitute unwarranted
invasion privacy for purposes FOIA. Dkt. 16.
Based this minimal record, the Court unable determine whether Exemption
covers the two redactions. certainly overstatement, the one hand, claim that the
identity those considered for appointment public office even eight years ago
public interest. Yet, the other hand, equally possible that the specific appointment
discussed the email exchange is, fact, public interest. Nor can the Court assess the
relevant privacy interests the present record. Again, easy imagine set facts that
might implicate substantial privacy concerns, and equally easy image scenario under
which reasonable person would not care about disclosure and, indeed, might even welcome
The Court, accordingly, concludes that cannot grant summary judgment favor
either party this issue the present record. order expedite resolution this one
remaining issue, the Court will direct that the Department file supplemental declaration
addressing the specific privacy interests stake and that provide the Court with unredacted
copies General Petraeus emails Secretary Clinton dated January 10, 2009, and January 14,
2009, for camera inspection. The Court will then permit the parties renew their respective
motions for summary judgment this one issue. Because Judicial Watch does not object the
remaining redactions based solely Exemption which simply obscured General Petraeus
Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page
email address, the Court will grant summary judgment favor the State Department that
For the reasons explained above, the Court GRANTS part and DENIES part State
motion for summary judgment, Dkt. 22, and DENIES Judicial Watch cross-motion for
summary judgment, Dkt. 26.
/s/ Randolph Moss
United States District Judge
Date: September 30, 2017
Earlier this litigation, Judicial Watch objected the adequacy the Department initial
search for responsive documents. See Dkt. The Defendant has failed meet its burden proof regarding the sufficiency its search. now concedes that the supplemental
declaration submitted the Department suffices meet its burden this point and that
Judicial Watch not challenging the adequacy Defendant initial search for responsive
records. Dkt. n.1. Nor has challenged the adequacy the supplemental searches.
The Court, moreover, having reviewed the Department thorough declarations setting out the
procedures used effect the searches, Dkt. 17-2 (First. Stein Decl.); Dkt. 22-2 (Second Stein
Decl.), concurs with the assessment that the searches were adequate. agency fulfills its
obligations can demonstrate beyond material doubt that its search was reasonably
calculated uncover all relevant documents. Valencia-Lucena U.S. Coast Guard, 180 F.3d
321, 325 (D.C. Cir. 1999) (quoting Truitt Dep State, 897 F.2d 540, 542 (D.C. Cir. 1990)).
The State Department has done that. Its declarations lay out the search process with sufficient
detail for the Court conclude that they were reasonably calculated uncover all relevant
documents, id. 325, and they explain which search terms were used, which record systems
were queried, and why the combination systems and terms would produce all the relevant
documents. See Dkt. 17-2 (First Stein Decl. 61); Dkt. 22-2 (Second Stein
Decl. 65). The Court, accordingly, concludes that each search was reasonably calculated uncover all relevant documents. Truitt, 897 F.3d 542.