JW v. State search order 00692
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Case 1:15-cv-00692-APM Document Filed 08/08/17 Page UNITED STATES DISTRICT COURT FOR THE DISTRICT COLUMBIA _________________________________________ Plaintiff, U.S. DEPARTMENT STATE, Defendant. _________________________________________ JUDICIAL WATCH, INC., Case No. 15-cv-00692 (APM) MEMORANDUM OPINION AND ORDER INTRODUCTION This case concerns Freedom Information Act FOIA request for former Secretary State Hillary Clinton e-mails related the September 11, 2012, attack the U.S. consulate Benghazi, Libya. Although this matter began with much fanfare, the only remaining dispute whether Defendant Department State State conducted adequate search for records responsive Plaintiff Judicial Watch, Inc. FOIA request. Because Secretary Clinton used personal e-mail server for work-related communications, Plaintiff request caused State look beyond its own e-mail servers for responsive records. State searched three external sources: (1) cache approximately 30,000 e-mails turned over State Secretary Clinton; (2) documents produced three her top aides Huma Abedin, former Deputy Chief Staff; Cheryl Mills, former Chief Staff; and Jacob Sullivan, former Director Policy Planning; and (3) the collection e-mails recovered the Federal Bureau Investigation FBI during its investigation Secretary Clinton use personal e-mail server. Plaintiff asserts that State search was deficient two respects. First, Plaintiff contends that State should have searched the Case 1:15-cv-00692-APM Document Filed 08/08/17 Page official state.gov e-mail accounts Abedin, Mills, and Sullivan identify responsive records. Second, Plaintiff maintains that State also was required search e-mails that the FBI discovered the fall 2016 during unrelated investigation Abedin husband, Anthony Weiner. State, for its part, defends the adequacy its searches and rejects Plaintiff assertion that additional searches are likely unearth more responsive e-mails. This matter before the court the parties cross-motions for summary judgment. The court finds that State search was inadequate insofar did not search the official state.gov email accounts Secretary Clinton three aides, and orders State conduct supplemental search those accounts. With respect the e-mails more recently discovered the FBI, State has agreed search those records another case pending this District; therefore, the court will defer its ruling Plaintiff second challenge until State search those records complete. Accordingly, the court grants the parties motions part and denies them part. II. BACKGROUND March 2015, Plaintiff Judicial Watch submitted FOIA request State, seeking: Any and all e-mails former Secretary State Hillary Rodham Secretary Clinton concerning, regarding, relating the September 11, 2012 attack the U.S. Consulate Benghazi, Libya. The timeframe for this request September 11, 2012 January 31, 2013. Def. Mot. for Summ. J., ECF No. [hereinafter Def. Mot.], Def. Stmt. Material Facts, ECF No. 40-3 [hereinafter Def. Stmt.], Pl. Cross-Mot. for Summ. J., ECF No. 43, [hereinafter Pl. Resp.], Plaintiff sought the documents part its investigation into Plaintiff Cross-Motion for Summary Judgment contains three documents: its Cross-Motion for Summary Judgment, its Response Defendant Statement Material Facts, and its Statement Material Facts. The court cites each document individually. Case 1:15-cv-00692-APM Document Filed 08/08/17 Page the Benghazi attack and the federal government public response. Pl. Cross-Mot. for Summ. J., ECF No. 43, [hereinafter Pl. Stmt.], After State did not respond Plaintiff request within the statutorily-mandated period, Plaintiff filed this action. Compl., ECF No. Thereafter, the parties agreed schedule which State would produce the requested e-mails. Joint Status Report, July 15, 2015, ECF No. 10. Secretary Clinton use personal e-mail server send and receive work-related communications prevented recovery the requested material from State own servers. State instead searched three sets records that received from other sources. First, searched collection approximately 30,000 e-mails Secretary Clinton provided State December 2014 response its request for any federal records that she had her possession. Def. Stmt. 21; Pl. Resp. 21; Stein Decl. n.2. This search yielded 342 responsive documents, which State released 125 full and 217 part Plaintiff. Def. Stmt. 27, 30; Pl. Resp. 27, 30. Second, State searched documents received from three Secretary Clinton top aides: Huma Abedin, former Deputy Chief Staff; Cheryl Mills, former Chief Staff; and Jacob Sullivan, former Director Policy Planning. Def. Stmt. 22; Pl. Resp. 22; Stein Decl. nn. State had asked these individuals turn over any e-mails other records concerning official government business sent received personal e-mail account while serving their official capacities with State. Def. Mot., Decl. Eric Stein, ECF No. 40-4 [hereinafter Stein Decl.], nn. This search yielded one additional responsive document, which State released part. Def. Stmt. 32; Pl. Resp. 32. Third, March 2015, Plaintiff submitted second FOIA request State seeking all communications between State officials, officers, employees and members Congress and congressional staff related the use non-state.gov e-mail addresses Secretary Clinton from June 2014 the present. Answer, ECF No. Ex. ECF No. 6-2. Plaintiff does not challenge State response that request, see Pl. Cross-Mot. for Summ. J., ECF No. [hereinafter Pl. Mot.], n.1, the court grants Defendant Motion for Summary Judgment with respect that request. Case 1:15-cv-00692-APM Document Filed 08/08/17 Page State searched the collection e-mails that the FBI recovered during its investigation Secretary Clinton use personal e-mail server. Def. Stmt. 34; Pl. Resp. 34; Second Stein Decl. This search yielded three additional responsive documents, which State released part. Def. Stmt. 36; Pl. Resp. 36. total, State provided 348 documents Plaintiff, producing 125 full and 223 part. Def. Stmt. 27, 30, 32, 36; Pl. Resp. 27, 30, 32, 36. III. LEGAL STANDARD Most FOIA cases are appropriately resolved motions for summary judgment. Brayton Office the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). court must grant motion for summary judgment the movant shows that there genuine dispute any material fact and the movant entitled judgment matter law. Fed. Civ. 56(a). dispute genuine only reasonable fact-finder could find for the nonmoving party, and fact material only capable affecting the outcome litigation. Anderson Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Unlike the review other agency action that must upheld supported substantial evidence and not arbitrary capricious, the FOIA expressly places the burden the agency sustain its action and directs the district courts determine the matter novo. U.S. Dep Justice Reporters Comm. for Freedom the Press, 489 U.S. 749, 755 (1989) (quoting U.S.C. 552(a)(4)(B)). State moves for summary judgment its withholdings. With one exception, Plaintiff did not contest those withholdings and, therefore, the court grants summary judgment favor State those matters. the one exception, Plaintiff initially challenged State invocation the deliberative process privilege under Exemption withhold single e-mail communication between Secretary Clinton and Jacob Sullivan, which concerned Ambassador Susan Rice statements the media following the Benghazi attack. See Pl. Mot. 14. That challenge, however, now moot. Joint Status Report, Aug. 2017, ECF No. 47, State disclosed the e-mail issue the Select Committee Benghazi, and although State asked the Committee not publicly release the e-mail contents, the Committee nevertheless quoted the e-mail full its final report. Id. Although State maintains that the Committee disclosure does not constitute waiver its right assert Exemption exercise its discretion, State released the e-mail full Plaintiff. Id. Accordingly, the parties agree that dispute remains over the challenged withholding. Id. Case 1:15-cv-00692-APM Document Filed 08/08/17 Page court may grant summary judgment FOIA case based solely the information provided agency supporting affidavits declarations those affidavits declarations are relatively detailed and non-conclusory. SafeCard Servs., Inc. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). The agency affidavits declarations must describe the documents and the justifications for nondisclosure with reasonably specific detail [and] demonstrate that the information withheld logically falls within the claimed exemption. Military Audit Project Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Further, they must not controverted either contrary evidence the record [or] evidence agency bad faith. Id. Agency affidavits are entitled presumption good faith, which cannot rebutted purely speculative claims about the existence and discoverability other documents. SafeCard Servs., 926 F.2d 1200 (quoting Ground Saucer Watch, Inc. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). Ultimately, agency justification for invoking FOIA exemption sufficient appears logical plausible. Judicial Watch, Inc. U.S. Dep Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (internal quotation marks omitted). IV. DISCUSSION The sole remaining dispute this case the adequacy State search for responsive records. Plaintiff contends that State search was inadequate because State neglected search the official state.gov e-mail accounts Huma Abedin, Cheryl Mills, and Jacob Sullivan. Pl. Cross-Mot. for Summ. J., ECF No. [hereinafter Pl. Mot.], Further, Plaintiff maintains that State must search the e-mails that the FBI recovered last fall during unrelated investigation. Id. 10. State counters that not required search either the former officials e-mail accounts the newly discovered records because, its view, searching these other sources unlikely uncover additional documents. Def. Reply, ECF No. [hereinafter Def. Reply], Case 1:15-cv-00692-APM Document Filed 08/08/17 Page support its position, State notes that the two searches ran following its search approximately 30,000 e-mails provided Secretary Clinton yielded only four additional documents. Id. Thus, State submits, conducting additional searches likely unfruitful. Id. Records from the State.gov Accounts Abedin, Mills, and Sullivan FOIA requires agency conduct search for responsive records that reasonably calculated discover the requested documents. SafeCard Servs., 926 F.2d 1201. This standard does not, however, evaluate the adequacy search its results. Rather, the adequacy search determined the appropriateness [its] methods. Hodge FBI, 703 F.3d 575, 579 (D.C. Cir. 2013) (quoting Iturralde Comptroller the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)). The adequacy-of-search inquiry, therefore, fact-dependent and governed standard reasonableness. Truitt Dep State, 897 F.2d 540, 542 (D.C. Cir. 1990). demonstrate that carried out adequate search, the agency must show that made good faith effort conduct search for the requested records, using methods which can reasonably expected produce the information requested. Oglesby U.S. Dep the Army, 920 F.2d 57, (D.C. Cir. 1990). Although agency need not move heaven and earth uncover every conceivable responsive record, cannot conclude its search there are additional sources that are likely turn the information requested. Valencia-Lucena U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (internal quotation marks omitted). Ultimately, agency has complied with FOIA can demonstrate beyond material doubt that its search was reasonably calculated uncover all relevant documents. Id. 325 (internal quotation marks omitted). the run-of-the-mill FOIA case, agency faced with request should able, with high degree confidence, locate responsive materials searching its own records systems. Upon receipt FOIA request, agency will determine which its records systems are likely Case 1:15-cv-00692-APM Document Filed 08/08/17 Page contain responsive records, formulate strategy for how best identify such records from within each relevant record system, and then search and collect the responsive materials. But this matter far cry from typical FOIA case. Secretary Clinton used private email server, located her home, transmit and receive work-related communications during her tenure Secretary State. Pl. Stmt. 13; Def. Reply, Def. Resp. Pl. Stmt. Material Facts, ECF No. 44-1, [hereinafter Def. Resp.], 13. result, State servers did not capture and store all the Secretary e-mails. True, communications between Secretary Clinton and someone using state.gov e-mail account would have passed through and presumably been saved State server. However, e-mail did not involve any state.gov user, the message would have passed through only the Secretary private server and, therefore, would beyond the immediate reach State. Because this circumstance, unlike the ordinary case, State could not look solely its own records systems adequately respond Plaintiff demand. Rather, had to, and did, look other sources for the requested information. Although State expanded its search beyond its own records system include review records from certain non-State-controlled sources, FOIA requires more. true, State asserts, that agency may halt its search additional searches are unlikely produce any marginal return, Campbell DOJ, 164 F.3d 20, (D.C. Cir. 1998), and search not unreasonable simply because fails produce all relevant records, Meeropol Meese, 790 F.2d 942, 952 (D.C. Cir. 1986). Yet, agency cannot limit its search only one record system there are others that are likely turn the information requested. Oglesby, 920 F.2d 68. date, State has searched only data compilations originating from outside sources Secretary Clinton, her former aides, and the FBI. See Stein Decl. 14; Def. Mot., Decl. Eric Stein Re: FBI Invest., ECF No. 40-5 [hereinafter Second Stein Decl.], has not, however, searched Case 1:15-cv-00692-APM Document Filed 08/08/17 Page the one records system over which has always had control and that almost certain contain some responsive records: the state.gov e-mail server. Secretary Clinton sent e-mail about Benghazi Abedin, Mills, Sullivan his her state.gov e-mail address, one them sent e-mail Secretary Clinton using his her state.gov account, then State server presumably would have captured and stored such e-mail. Therefore, State has obligation search its own server for responsive records. See Oglesby, 920 F.2d 68. Admittedly, light State efforts date, there reasonable probability that the only responsive e-mails stored State server are duplicates e-mails originating from the three outside sources and, thus, have already been produced Plaintiff. State under obligation produce duplicates, and Plaintiff does not contend otherwise. See Competitive Enter. Inst. Office Sci. Tech. Policy, No. 14-765, 2017 978971, (D.D.C. Mar. 12, 2017) (citing cases). Yet, State has offered assurance that the three record compilations received, taken together, constitute the entirety Secretary Clinton e-mails during the time period relevant Plaintiff FOIA Request. Absent such assurance, the court unconvinced beyond material doubt that search the state.gov accounts Abedin, Mills, and Sullivan unlikely produce any marginal return. State remaining argument does not change the court conclusion. State contends that finding its search inadequate this case will create unworkable standard future FOIA cases. Def. Reply n.3. According State, requiring search Secretary Clinton former aides work accounts will force agencies faced with future FOIA request for official e-mails complete the unduly burdensome task search[ing] the e-mail accounts other officials who likely communicated with the subject official. Id. (quoting Pl. Mot. 8). State concern, however, overstates the consequence the court ruling. The court decision this case Case 1:15-cv-00692-APM Document Filed 08/08/17 Page premised specific fact pattern unlikely arise the future: the federal records relevant Plaintiff request have come from diffuse sources outside the agency traditional record-keeping systems. the ordinary FOIA case, contrast, government-controlled servers will contain the relevant universe responsive e-mails, thereby allowing agencies formulate tailored searches, using keywords and date restrictions, and targeting specific document custodians. Thus, the ordinary case, there simply would need, State suggests, search the e-mail account every official who happens e-mail. Thus, the court ruling does not create unworkable and burdensome search obligation, State claims. Accordingly, the court finds that State has not met its burden establishing performed adequate search response Plaintiff FOIA Request and orders State conduct supplemental search the state.gov e-mail accounts Abedin, Mills, and Sullivan. E-mails Discovered During Unrelated FBI Investigation The court declines, this time, order State search the e-mails that the FBI recovered last fall during unrelated investigation. See Pl. Mot. 10. The court understands that State has now received the e-mails question and the process producing them Plaintiff parallel, ongoing litigation this District. See Notice Agreement, Judicial Watch, Inc. U.S. Dep State, No. 15-cv-00687 (D.D.C. August 2017), ECF No. (representing that State received these records for review and will process and produce them ongoing litigation before Chief Judge Howell); Joint Status Report, Judicial Watch, Inc. U.S. Dep State, No. 15-cv00684 (D.D.C. July 31, 2017), ECF No. (representing that State received records and noting that the parties plan propose production schedule later than October 2017). Accordingly, Case 1:15-cv-00692-APM Document Filed 08/08/17 Page the court sees need rule search issue that might become moot the near future and defers making any judgment until the related search comes close. CONCLUSION AND ORDER For the foregoing reasons, the court grants State Motion for Summary Judgment with regard all withholdings, but denies its Motion with regard the adequacy the search. Plaintiff Motion for Summary Judgment granted insofar the court orders State search the state.gov e-mail accounts Huma Abedin, Cheryl Mills, and Jacob Sullivan for records responsive Plaintiff March 2015, FOIA request. The court will retain jurisdiction over this matter. before September 22, 2017, the parties shall submit Joint Status Report that updates the court (1) State search the state.gov e-mail accounts Abedin, Mills, and Sullivan, and (2) State review and production the emails recently received from the FBI. any dispute remains regarding State compliance with its obligations under FOIA, the parties shall propose briefing schedule. Dated: August 2017 Amit Mehta United States District Judge