JW v. State Opinion 00689
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Date Created:September 30, 2017
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Case 1:15-cv-00689-RDM Document Filed 09/30/17 Page UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA JUDICIAL WATCH, INC., Plaintiff, Civil Action No. 15-689 (RDM) U.S. DEPARTMENT STATE, Defendant. 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 state.gov email address and clintonemail.com 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- state.gov 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- state.gov email addresses. Id. 21. And the third request, also dated March sought records related expenses incurred the creation, maintenance[,] and/or use the clintonemail.com 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. II. LEGAL STANDARD 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 III. ANALYSIS 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. 552(b)(7)(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 Balancing 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 clintonemail.com server non- state.gov 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. Id. 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. Segregability 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 turn. 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 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 it. 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 issue.4 CONCLUSION 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 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.