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Judicial Watch • JW v State Order HRC iPad 00646

JW v State Order HRC iPad 00646

JW v State Order HRC iPad 00646

Page 1: JW v State Order HRC iPad 00646


Number of Pages:4

Date Created:September 26, 2017

Date Uploaded to the Library:September 26, 2017

Tags:camera, Larson, deliberative, iPad, 00646, Technology, privilege, review, HRC, AGENCY, order, security, Secretary, defendant, filed, plaintiff, State Department, document, FOIA, office

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Case 1:15-cv-00646-CKK Document Filed 09/21/17 Page
Civil Action No. 15-646 (CKK)
(September 21, 2017)
This case under the Freedom Information Act FOIA concerns Plaintiff request
Defendant for the disclosure (1) [a]ny and all records requests former Secretary State
Hillary Rodham Clinton her staff the State Department Office Security Technology
seeking approval for the use iPad iPhone for official government business and (2) [a]ny
and all communications within between the Office the Secretary State, the Executive
Secretariat, and the Office the Secretary and the Office Security Technology concerning,
regarding, related the use unauthorized electronic devices for official government business
between January 2009 and January 31, 2013. Compl., ECF No. Pending before the Court
are the parties cross-motions for summary judgment. ECF Nos. 25, 29.
The dispute this litigation has narrowed the following document numbers, portions
which have been withheld pursuant the deliberative process privilege way FOIA
Exemption which incorporates certain common law privileges: C05838711, C05838715,
C05838716, C05838718, C05838724, C05838732, C05891089, C05891096, C05891104,
C05891119, C05891125, C05891126, and C05891139. See Pl. Mem. Supp. Cross-Mot. for
Summ. J., ECF No. Pl. Mem. Plaintiff does not contest that the redacted portions
are deliberative and pre-decisional the factors that determine whether the deliberative process
Case 1:15-cv-00646-CKK Document Filed 09/21/17 Page
privilege applies, see Judicial Watch, Inc. U.S. Dep Defense, 847 F.3d 735, 739 (D.C. Cir.
2017) but contends that the privilege vitiated the government misconduct exception. Pl.
Mem. relief, Plaintiff seeks either the disclosure the portions these documents that
have been redacted pursuant the deliberative process privilege, minimum, camera
review the Court. Id.
Given the difficulty adjudicating the applicability the government misconduct
exception the abstract assuming such exception exists all and the practical reality that
this litigation has reduced relatively small portions thirteen documents, the Court shall order camera review the contested materials. U.S.C. 552(a)(4)(B); see Larson Dep State,
565 F.3d 857, 869 (D.C. Cir. 2009) camera review available the district court the
court believes needed make responsible novo determination the claims
exception. (internal quotation marks omitted)). Several district courts this circuit have similarly
ordered camera review when assessing whether alleged government misconduct vitiates the
deliberative process privilege. Nat Whistleblower Ctr. U.S. Dep Health Human Servs.,
903 Supp. 59, (D.D.C. 2012) (Boasberg, J.) (collecting cases). Furthermore, given the
nature the deliberative process privilege and the claimed government misconduct exception,
supplemental Vaughn index would likely not shed additional light the contested issues without some degree disclosing the very matter that Defendant has determined should withheld. Cf.
Larson, 565 F.3d 870 when the agency meets its burden means affidavits, camera
review neither necessary nor appropriate (internal quotation marks and alteration omitted)).
Accordingly, exercise its broad discretion this front, id., the Court shall grant
Plaintiff motion for summary judgment solely the extent seeks camera review the
Case 1:15-cv-00646-CKK Document Filed 09/21/17 Page
portions the documents listed above that have been withheld pursuant the deliberative process
privilege. addition, Plaintiff contends that Defendant should required conduct supplemental
search certain additional emails allegedly recovered the Federal Bureau Investigation
October 28, 2016. See Pl. Mem. Defendant responds principally the basis that not
required search these materials, because they are not yet State possession, nor there any
indication when they will be. Def. Opp Pl. Cross-Mot. for Summ. J., ECF No. 30,
FOIA reaches only records the agency controls the time the request, and four factors are
used evaluate whether agency controls document: (1) the intent the document creator retain relinquish control over the records; (2) the ability the agency use and dispose
the record sees fit; (3) the extent which agency personnel have read relied upon the
document; and (4) the degree which the document was integrated into the agency record
system files. Judicial Watch, Inc. Fed. Hous. Fin. Agency, 646 F.3d 924, 926 (D.C. Cir.
2011) (internal quotation marks omitted). While may true that the additional October 2016
materials were not within Defendant control the time Plaintiff FOIA request, the Court
cannot rely Defendant bald assertion that effect legal brief. Rather, Defendant must
furnish the Court with affidavit addressing the four elements which agency control
assessed the FOIA context. light the foregoing, Plaintiff [29] Motion for Summary Judgment GRANTED
solely the extent seeks camera review. For all other purposes, the pending cross-motions
for summary judgment, ECF Nos. 25, 29, are DENIED WITHOUT PREJUDICE. The thirteen
documents listed above shall furnished the Court, under seal and parte, for camera
Case 1:15-cv-00646-CKK Document Filed 09/21/17 Page
review NOVEMBER 2017. the extent Defendant continues decline search the
additional materials allegedly recovered October 2016, affidavit addressing the agency
control these materials shall likewise furnished NOVEMBER 2017. Following the
submission these materials, the parties may renew their cross-motions for summary judgment.
Additional briefing not required, but shall permitted. ORDERED.
United States District Judge