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Judicial Watch, Inc v. United States Department of State

July 12, 2012

JUDICIAL WATCH, INC., PLAINTIFF
v.
UNITED STATES DEPARTMENT OF STATE, DEFENDANT.



The opinion of the court was delivered by: Alan Kay United States Magistrate Judge

MEMORANDUM OPINION

Plaintiff, Judicial Watch, Inc. ("Judicial Watch") brings this action pursuant to the Freedom of Information Act ("FOIA") 5 U.S.C. § 522 et seq., to compel Defendant, the United States Department of State ("the Department") to disclose certain records. This matter is before the court on the Department's Motion for Summary Judgment ("Def.'s Mot."). Defendant filed a declaration by Ms. Sheryl Walter to support its Motion. ("Decl. of Sheryl Walter") Plaintiff submitted an Opposition to Defendant's Motion for Summary Judgment ("Pl.'s Opp."), and Defendant replied ("Def.'s Reply"). For the reasons set forth below, the undersigned hereby orders that the Department's Motion be granted.

I. BACKGROUND

Plaintiff Judicial Watch filed a request for documents pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, with Defendant, the Department, on February 7, 2011. (Def.'s Mot., Ex. 1.) In its request, Judicial Watch sought records of any contact between the Department and a lobbyist for Transcanada Pipelines ("Transcanada") named Paul Elliott pertaining to the Keystone XL pipeline. (Id.; Pl.'s Opp. at 2.) Transcanada is the would-be builder of the pipeline. (Pl.'s Opp.at 1.) Judicial Watch filed the request to determine the extent of Mr. Elliott's involvement during the deliberations on the licensing for the pipeline within the Department. (Id. at 3.)

The Keystone XL pipeline is a proposed oil pipeline coming from Canada, running through the United States to Texas.*fn1 The licensing and development of the Pipeline are politically charged issues. (Def.'s Reply at 3; Pl.'s Opp. at 9.) Mr. Elliott, a former deputy campaign manager for Secretary of State Hillary Clinton, now works for Transcanada. (Pl.'s Opp. at 2.) According to Judicial Watch, Mr. Elliott has "aggressively lobbied Defendant to authorize construction of Keystone XL." (Pl.'s Opp. at 3.)

Currently, the final authorization status of the Pipeline is undetermined. The Department denied Transcanada authorization to build the pipeline on January, 18, 2012. (Id. at 2.) However, concurrent with its denial, the Department also invited Transcanada to reapply for authorization. (Id.)

Judicial Watch filed this lawsuit against the Department on June 22, 2011 after receiving no response to its request. (Pl.'s Opp. at 3.) Over a series of letters following the filing of the suit, the Department updated Judicial Watch on the progress of the search for relevant documents. (Def.'s Stmt. of Material Facts at ¶¶ 1-8; Decl. of Sheryl Walter ¶¶ 4-10.) In addition to these letters, the Department released responsive documents to Judicial Watch on an ongoing basis. (Def.'s Stmt. of Material Facts at ¶¶ 1-8; Decl. of Sheryl Walter ¶¶ 4-10.) Judicial Watch does not challenge the extent of the Department's search. (Joint Pre-Trial Statement.)

The lone items remaining for consideration on these motions are several names in a single document identified as Document W52. (Pl.'s Opp. at 9.) The Department has provided a declaration by Ms. Sheryl Walter to support its use of the Exemptions. (See Decl. of Sheryl Walter) Document W52 is a chain of 12 emails that were exchanged over 17 days where members of government agencies, including the Department, discuss potential attendees for an upcoming meeting. (See Def.'s Reply, Ex. 1.) The meeting, set to take place on February 7, 2011, was to gather representatives from Canadian and United States agencies and other individuals to discuss the pipeline. (See Decl. of Sheryl Walter at ¶ 14.) In Document W52, the meeting is described as "that Washington briefing on regulatory process for Canadian business groups." (Def.'s Reply, Ex. 1. at 6.) In her declaration, Ms. Walter describes the meeting as "a briefing on regulatory cooperation." (Decl. of Sheryl Walter at ¶ 20.)

The withheld names occur in several portions of the relevant emails. (Def.'s Reply, Ex. 1.) The Department withholds lists of names of potential attendees for a meeting under Exemptions 5 and 6. (Def.'s Mot. at 7; Decl. of Sheryl Walter at ¶¶ 14-15. ) These lists of names appear in the text of the emails with headers such as, "US Participants," "Canadian Participants," "Treasury Board," and "Also." (Def.'s Reply, Ex. 1.) Suggestions for attendees come from the "CABC," the U.S. Embassy in Ottawa, and the Canadian Embassy in Washington, D.C., among others. (Id. at 1-2.) Under only Exemption 6, The Department also redacted the names of two members of the National Security Staff who are authors and recipients of several emails in the chain. (Pl.'s Opp. at 3, 9; Def.'s Reply, Ex.1.) These two names appear in the "to," "from," and "cc" lines of emails, as well as in the signature blocks. (Id.) Judicial Watch is not requesting the release of several phone numbers that are also withheld. (Pl.'s Opp. at 9.) The Department has released all other documents to Judicial Watch's satisfaction. (Id.)

II. SUMMARY JUDGMENT STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is appropriate where the documents in the record show no dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a), (c). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505 (1986). The nonmoving party, however, must establish more than "the mere existence of a scintilla of evidence" in support of its position. Id.

"FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009). "Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record, nor by evidence of agency bad faith." Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)).

III. ANALYSIS

The Department claims Exemptions 5 and 6 to withhold the lists of names, and Exemption 6 alone to withhold two White House Security Staff personnel sending and receiving emails. (Decl. of Sheryl Walter at ¶ 20.) The undersigned considers Exemption 5 first as it is the more narrowly asserted of the two exemptions.

A. FOIA Exemption 5

Exemption 5 protects "inter-agency or intra-agency memoranda which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. ยง 552(b)(5). The Exemption incorporates three privileges: attorney work product privilege, attorney-client privilege, and "deliberative process" privilege. See Coastal States Gas Corp. v. U.S. Dep't of Energy, 617 F.2d 854, 862 (D.C. Cir. 1980). The Department claims the "deliberative process" privilege for Document W52. (Def.'s Reply, Ex. 1.) The ...


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