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Judicial Watch • JW v State talking points opinion 00885

JW v State talking points opinion 00885

JW v State talking points opinion 00885

Page 1: JW v State talking points opinion 00885


Number of Pages:16

Date Created:October 1, 2018

Date Uploaded to the Library:October 12, 2018

Tags:ofJustice, Mapother, deliberative, 00885, points, talking, Opinion, Vaughn, privilege, press, Exemption, process, Sullivan, Bill Clinton, email, documents, Hillary Clinton, Secretary, clinton, White House, filed, State Department, document, department, FOIA, states, IRS

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Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page
Civil Case No. 16-885
Hillary Clintons use private email server while she was Secretary State has
spawned rash Freedom Information Act (FOIA) lawsuits, including this one. One the
lawsuits, Leopold US. Department State, Civil Case No. 15-123 (Contreras, J.), led the
release email which then-Secretary Clinton seemingly directed her deputy chief staff
Jake Sullivan strip the headings from classified document and send over unsecure fax
This suit asks for emails about that email. When the Clinton-Sullivan exchange was
released 2016, precipitated firestorm media and Congressional inquiries. Those
inquiries themselves prompted flurry documents between State Department officials
planning and executing public response. daily briefing the day after its release,
Department spokesperson John Kirby said, did some forensics [the Clinton-Sullivan
email exchange] and found evidence was actually emailed her. few months later,
Judicial Watch filed this lawsuit enforce its FOIA requests for records relating the ClintonSullivan exchange and for the factual basis Kirbys statement.
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page
Long after the spotlight moved fresher intrigue, lawyers remain. The dispute has
narrowed nineteen documents that show State Department officials the throes responding inquiries about the email. State seeks partially withhold these documents under FOIAs
Exemption which incorporates the attorney-client and deliberative process privileges. least,
Judicial Watch argues State applied the privileges too broadly. most, Judicial Watch contends
the deliberative process privilege should not apply all, arguing cannot shield government
misconduct. July 24, 2018, the Court ordered [27] State provide unredacted copies the
documents for review parte determine whether State properly invoked the privileges.
Based its review, the Court agrees with State part and disagrees part. After
reviewing the relevant legal standards, this opinion summarizes each document and applies the
appropriate rule. The opinion concludes granting Judicial Watchs cross-motion for summary
judgment [18] for ten documents, granting States cross-motion for summary judgment [17] for
the remaining nine,2 and denying the balance both motions. Legal Standards Exemption
FOIA provides judicially enforceable right access federal agency records, unless
the records are protected from disclosure one nine exemptions three special law
Documents C06087904, C06188346, C06188914, C06188916, C06188917, C06188578,
C06087884, C06092906, C06092986, and C06087907.
Documents C06071863, C06071864, C06093072, C06093081, C06093083, C06093040,
C06188203, C06188506, and C06071850.
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page
enforcement exclusions. See U.S.C. 552. Exemption 552(b)(5), allows government
agencies withhold documents normally privileged the civil discovery context. NLRB
Sears, Roebuck Co., 421 U.S. 132, 149 (1975). According the D.C. Circuit, Exemption
unequivocally incorporates all civil discovery rules, including the attorney-client and
deliberative process privileges. Martin Office Special Counsel, Merit Sys. Protection Bd,
819 F.2d 1181, 1185 (D.C. Cir. 1987). When agency seeks invoke privilege, must
present sufficient facts--either its Vaughn index or, during parte review, the documents
face--establishing the privilege applies. See Bartholdi Cable Co. FCC, 114 F.3d 274,280
(D.C. Cir. 1997). And where application privilege unclear, must construed
narrowly consistent with efficient Government operation. Mapother Dep ofJustice,
F.3d 1533, 1537 (D.C. Cir. 1993) (quoting Wolfe Dept Health Human Servs., 839 F.2d
768, 773-74 (D.C. Cir. 1988) (en bane)). Attorney-Client Privilege
The attorney-client privilege protects confidential communications between attorney
and his client relating legal matter for which the client has sought professional advice.
Mead Data Cent., Inc. US. Dep ofAir Force, 566 .2d 242, 252 (D.C. Cir. 1977).
government agencies, attorney-client relationship inferred when the agency deal[s] with
its attorneys would any private party seeking advice protect personal interests. Coastal
States Gas Corp. Dep Energy, 617 F.2d 854, 863 (D.C. Cir. 1980).
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page Deliberative Process Privilege
The deliberative process privilege promotes and protects candor governmental
decisionmaking. Mapother, F.3d 1537. allows agencies withhold communications that
are both predecisional and deliberative. Id.
Communication predecisional when antecedent the adoption agency policy.
Ancient Coin Collectors Guild US. Dep ofState, 641 F.3d 504, 513 (D.C. Cir. 2011)
(internal quotation marks omitted) (quoting Jordan US. Dep ofJustice, 591 F.2d 753, 774
(D.C. qr. 1978) (en bane)). Whet~er communication antecedent turns the role. plays
the decisionmaking process. For instance, recommendation from someone lacking legal
pr~ctical authority predeci.sional since the final deci~ionmaker can decline ~dopt it. See
Access Reports Dep ofJustice, 926 F.2d 1192, 1195 (D.C. Cir. 1991). Relatedly, post
communication subordinate explaining superiors prior decision may still predecisional discusses recommendations not expressly adopted. See Sears, 421 U.S. 151-53.
Communication deliberative when reflects the give-and-take decisionmaking.
Coastal States, 617 F.2d 866. This means the privilege covers recommendations, draft
documents, proposals, suggestions, and other subjective documents conveying the authors
judgment. Id.
Though the Court Appeals has never addressed applying the deliberative process
privilege public-relations issues, numerous district court opinions hold deliberations over
how respond media inquiries are protected when generated part continuous
process agency decision making. Judicial Watch, Inc. US. Dep Homeland Sec., 736
Supp. 202, 208-09 (D.D.C. 2010).
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page
Talking points have been characterized inescapabl[y] part that process, since
their nature they are rarely the final decision about what the [speaker] will say: speaker] may elect use all, some, none the talking points .... And
even when [speakers] follow their talking points, they often not recite the
points word-for-word .... The final decision [i]s what [the speaker] actually said the media, which is, course, already matter public record ....
government employee drafting talking points ... needs know that her advice
will remain privileged regardless whether the [speaker] ultimately sticks the
script decides extemporize. accordingly moment [whether the
speaker] ultimately stuck the talking points-the point that she might not
have .... Moreover, sticking talking points often does not entail verbatim
recitation, leaving open the possibility that simple comparison the talking
points with the officials public remarks would reveal the agencys deliberations.
Am. Ctr.for Law Justice US. Dept ofJustice, No. 16-2188, 2018 4283561, *6-8
(D.D.C. Sept. 2018) (quoting Mapother, F.3d 1538).
But this discussion proves too much. Extending its logical limits means any prepared
remarks-even the State the Union~ould withheld under the deliberative process
privilege, since speaker could always off-script, extemporally exposing the final stage
deliberative process. And although one needs FOIA obtain the State the Union
(numerous videos and transcripts are available), government officials give hundreds speeches
every day, all which are important, though many elude recording transcription.
stretching the deliberative process privilege would put many important public statements outside
FOIAs grasp, even well after the statements were made.
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page
The talking points considered the American Center for Law Justice court further
distinguish its result. Those talking points were not ordinary talking points prepared for
ordinary spokesperson ordinary press briefing. The talking points were drafted
Department Justice aides for use then-Attorney General Loretta Lynch press
appearances defend her widely panned tarmac meeting with former-President Bill Clinton
during the 2016 presidential campaign. Because the talking points were prepared
subordinate staffer, General Lynch could override them any point, fact the opinion
recognized. Put another way, the talking points issue were effectively advice from
subordinates, not the final word the Departments public position. The opinion
acknowledged alternate style talking points-those represent[ing] the agencys [final]
decision about what say-might induce different result.
Other cases echo that limitation emphasizing that the deliberative process privilege
applies records preced[ing] the finalization the [agencyJs media response reflecting the
give-and-take leading consensus the agencys public position. Cause ofAction IRS,
125 Supp. 145, 160 (D.D.C. 2015) (emphasis added); see also Judicial Watch, Inc. US.
Dep Commerce, 337 Supp. 146, 174 (D.D.C. 2004) (holding the deliberative process
privilege properly protected talking points prepared [agency] employees for the
consideration [agency] decision-makers). And not least, this treatment comports with the
Court Appealss command construe Exemption privileges narrowly possible. See
Mapother, F.3d 1537.
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page The Government Conduct Exception the Deliberative Process
[W]here there reason believe documents withheld under the deliberative process
privilege may shed light government misconduct, courts can decline recognize the
privilege, since shielding internal government deliberations this context does not serve the
publics interest honest, effective government. Sealed Case, 121 F.3d 729, 738 (D.C.
Cir. 1997) (quoting Texaco P.R., Inc. Dep Consumer Affairs, F.3d 867, 885 (1st Cir.
This exception well established civil discovery. See, e.g., Hinckley United States,
140 F.3d 277,285 (D.C. Cir. 1998). The Court Appeals, however, has never decided whether
the exception abrogates the privilege FOIA litigation, and lower courts have divided.
Compare, e.g., Judicial Watch, Inc. US. Dep ofState, 241 Supp. 174, 182-83 (D.D.C.
2017) (Berman Jackson, J.) (holding the government conduct exception does not apply FOIA
cases), with, e.g., Nat! Whistleblower Ctr. Dep Health Human Servs., 903 Supp.
59, (D.D.C. 2012) (Boasberg, J.) (suggesting the government conduct exception applies
FOIA cases).
II. Application
After further review, the Court concludes States withholdings were proper for nine
documents but improper for ten documents. The Court further concludes that, evyn the
government conduct exception applies FOIA litigation, does not override proper application
See documents cited supra note
See documents cited supra note
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page the deliberative process privilege here, since these documents were byproduct States
compliance with judicial order. Document Summaries this Section, the Court summarizes each document arranged States Vaughn
index (ECF No. 17-1, 7-10) and assesses the claimed privileges applicability. The Court
concludes State properly invoked Exemption for all documents discussed subsections II.A.
.3, .5, and .8; and for some documents discussed II.A.6; but not for documents discussed
II.A.2, .4, and .7. Nonpaper Response Suitable for Corker Burr and Grassley
The first five documents are emails circulating and critiquing. draft letter responding
Congressional inquiries into the Clinton-Sullivan email exchange.
State seeks withhold the emails substance under both the attorney-client and
deliberative process privileges. Its argument applying the attorney-client privilege relies the
Vaughn indexs bald assertion that the recipients includ[ed] Department attorneys. State skates
over who they are, the emails themselves. Nothing about the documents appears
dispense legal advice further existing attomey-dient relationship. But regardless
whether the attorney-client privilege should apply, soliciting revisions and feedback draft
plainly predecisional and deliberative. Moreover, proposed withholdings are further
segregable. State may properly withhold the proposed portions under the deliberative process
C06071863, C06071864, C06093072, C06093081, and C06093083.
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page Planning read out nonpaper email Grassley staff today
The next two documents are February 2016 emails discussing States prior public
comments the Clinton-Sullivan email exchange. Claiming the deliberative process privilege,
State seeks redact information styled press guidance from January 11th for podium-the
talking points used spokesperson during press conference the month before. The email
author notes she not sure what ended being deployed.
The proposed withholdings are neither predecisional nor deliberative; the deliberative
process privilege i~applicable. For one, the emails share the talking points after they were
used. They not share previous versions the talking points, created the process deciding
what spokesp~rson will say some fut~re press conference. th~y did, the privilege woul?
undoubtedly apply. But rather, the author includes the talking points FYI, apparently
keep recipients apprised the final public position State authorized month earlier.
Nor the proposed withholdings involve any deliberation. There give-and-take;
one seeks provides feedback; the talking points were not prepared for use superior
official with authority depart from their content. The emails mechanically reproduce-without
any analysis-finalized talking points that were already used. State had copied-and-pasted
transcript the press conference into the email, their claim for the deliberative process privilege
would plainly fail. And here, State has done the functional equivalent, effectively copying-andpasting their side the script from the press conference. The privilege equally unavailable.
C06087904 and C06188346.
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page
Discussing how respond current future press inquiry different from conveying
the final result earlier discussion about how respond past inquiry. These documents
are the latter. But unfortunately for State, the deliberative process privilege protects only the
former. Even more because, unlike American Center for Law Justice, this press guidance
was not suggestion from subordinate employee about what superior should say. These
talking points represent the final, settled party line. State misapplied the deliberative process
privilege. For response soonest: Politico story Jake Sullivan and Top Secret
Tl?.e next document7 email chain beginning when Politico reporter Rachael Bade
notified State about upcoming story Jake Sullivans role iri Clintons email scandal and
request any off the record ... guidance. Bades message circulated throughout States
communications team, resulting emails drafting, tweaking, and approving quote that would
ultimately attributed State Department official. Rachael Bade, Top Clinton adviser sent
top secret messages her private account, Politico (Feb. 10, 2016, 4:00 PM),
State seeks withhold almost all substantive conduct under both the attorney-client and
deliberative process privileges. Yet again, besides the Vaughn indexs boilerplate assertion that
the email chain includ[es] attorneys opinion, State elides how the attorney-client privilege
applies. Regardless, the emails reflect the give-and-take continuous decisionmaking process.
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page
And proposed redaction further segregable. Accordingly, State properly invoked the
deliberative process privilege for the proposed withholdings. POINTS
The next three documents are emails from January 2016. The first, from staffer
Lauren Hickey, shares press guidance response States January email release including
the Clinton-Sullivan exchange. The other two emails are responses-Thanks and :Thanks
Lauren-with Hickeys original message visible below. all three, State attempts redact the
press guidance, daiming the attorney-client and deliberative process privileges.
State misplaces both. For one, though bears the burden showing the attorney-client
privilege applies, State merely asserts the email chain includ[es] Department attorneys? without
saying who and without explaining how the documents further attorney-client relationship.
What more, the documents are neither predecisional nor deliberative. The talking
points are final versions-not drafts-that seem have been authorized and released before the
email was sent. Like the talking points discussed subsection II.A.2, this proposed withholding seemingly provided FYI, and the arguments rejecting the deliberative process privilege that subsection apply here with equal force. State cannot use Exemption shield this press
C06188914, C06188916, and C06188917.
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page Press points for Clinton email release the next document, State press aide sends White House official already-released
press guidance and summarizes additional press guidance follow the next day. State seeks
withhold the summary the next days press guidance part deliberative process. But the
proposed withholding appears neither predecisional nor deliberative. does not ask for the
White Houses approval feedback, nor does contain precatory suggestive language.
relays not tentative plan but already settled strategy. Since the documents not appear predecisional part give-and-take, States attempt characterize the proposed
withholding part deliberative process misses the mark. The privilege does not apply. January 2016 Talking Points
The next five documents are confusing. State describes them draft press guidance
for responding press inquiries, and seeks withhold portions all under the deliberative
process privilege. Two documents relate the Clinton-Sullivan email exchange the other
three relate States January 2016 email release.
C06087884, C06092906, C06092986, C06188203, and C06188506.
C06087884 and C06188506.
C06092906, C06092986, and C06188203.
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page
Judging the face the documents, one related the Clinton-Sullivan
email exchange obviously draft, one relating the January 2016 release. State properly applied the
deliberative process privilege these two documents.
For the other three documents, all multiple pages long, State attempts redact only the
first page under the deliberative process privilege. The remaining pages are unredacted but
include Page Denied watermark. Two documents appear identical. But except for the
watermark, nothing about the three (really two) documents obviously indicates they are
unfinished. They read like prepared, bulleted talking points and canned answers expected
questions. And nothing the Vaughn index provides further background support for
concluding the documents are predecisional deliberative.
Absent any explanation the role these documents played deliberative process, and
mindful the need narrowly construe the Exemption privileges, the Court concludes State
fell short establishing the deliberative process privilege should apply the three notobviously draft documents.
C06188506 and C06188203.
C06087884, C06092906, and C06092986.
C06092906 and C06092986.
C06087884, C06092906, and C06092986.
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page story
The next document email chain beginning when one aide forwards Washington
Post article about Hillary Clintons use private email server while serving Secretary. One
person replies with point interest, and the initial author responds.
State seeks withhold the substance the two replies under the deliberative process
privilege. But that claim fails from the start, since neither communication appears
predecisional. Neither email contemplates future agency action; both seem off-hand
reactions unconnected any future agency action goal. ~or either email deliberative. There back-and-forth, and sign continuous decisionmaking process. Since the emails are
ne~ther predecisional nor de~iberative, the privilege fa~ls short. possible set quick call?
This January 2016 email chain, described the Vaughn index, discuss[es] how the
agency should respond Congressional inquiry and document request. Much the email
chain refers abstractly information sent and received the high side, but State seeks
withhold what little substantive information does appear under the attomey--dient and
deliberative process privileges.
Unlike previous documents, one participant identified attorney, and appears
providing feedback attorney-client relationship. Though most the chain merely arranges
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page in-person meeting, the few details State seeks withhold properly fall within the attorney-
client privilege.
Additionally, the proposed withholdings concern requests for review and feedback. The
redacted information thus appears both predecisional and deliberative, the deliberative
process privilege properly applies. Nor are any proposed withholdings further segregable. State
can thus withhold the information under Exception The Government Conduct Exception Does Not Apply. subsection I.A.2.i this opinion notes, whether the government conduct exception
can override the deliberative process privilege FOIA case open question. But resolving
this case does not require answer. enough say the government conduct exception
would not apply regardless. bottom, these documents show State Department officials suffering the slings and
arrows abiding Judge Contrerass order release thousands pages nonexempt workrelated emails sent Hillary Clinton from her private server while Secretary. Simply put, these
documents shed light government compliance-not misconduct. would very odd
characterize misconduct documents created downstream from compliance with judicial
order, regardless whether that order itself remedied prior misconduct.
III. Conclusion
The Court grants Judicial Watchs cross-motion for summary judgment part for
documents C06087904, C06188346, C06188914, C06188916, C06188917, C06188578,
C06087884, C06092906, C06092986, and C06087907, but denies the motion all other
respects. the same time, the Court grants the State Departments cross-motion for summary
Case 1:16-cv-00885-RCL Document Filed 10/02/18 Page
judgment part for documents C06071863, C06071864, C06093072, C06093081, C06093083,
C06093040, C06188203, C06188506, and C06071850, but denies all other respects.
A.separate order shall issue this date.
United States District Court