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Freedom Watch, Inc. v. United States Department of State

United States District Court, District of Columbia

April 15, 2016

FREEDOM WATCH, INC., Plaintiff,
v.
UNITED STATES DEPARTMENT OF STATE, et al., Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG UNITED STATES DISTRICT JUDGE

This Freedom of Information Act case seeks documents relating to a type of sanctions waiver the U.S. State Department granted to certain countries doing business with Iran. On January 8, 2015, this Court granted State’s Motion for Summary Judgment, concluding that it had adequately searched, albeit unsuccessfully, for such records sought by Plaintiff Freedom Watch. See Freedom Watch v. U.S. Dep’t of State, 77 F.Supp. 3d 177 (D.D.C. 2015). During the pendency of Plaintiff’s appeal, it was publicly revealed that former Secretary of State Hillary Clinton had used a personal email and server to conduct Department business; the Court of Appeals, consequently, remanded the case for this Court to oversee State’s search of those emails for responsive documents. That search having been completed without success, State now renews its Motion for Summary Judgment. Plaintiff’s Opposition thereto may be characterized by Yogi Berra’s immortal line, “It’s déjà vu all over again.” This is because it essentially reiterates the arguments that the Court previously found wanting. Unsurprisingly, the same result obtains this time around.

I. Background

On May 21, 2013, Plaintiff submitted the following FOIA request to the U.S. State and Treasury Departments:

Any and all documents that refer or relate in any way to the final decisions to grant waivers to all countries and other interests doing business with the Islamic Republic of Iran pursuant to the Comprehensive Iran Sanctions, Accountability, and Divestment Act [CISADA], 22 U.S.C. § 8501 et[] seq. or Executive Order 13553.

Mot. (ECF No. 57), Declaration of John F. Hackett, Exh. 1 (Letter) at 2. In its prior Opinion, this Court described the detailed steps that State took upon receipt of this FOIA request (Treasury having been dismissed), which included the search of eleven separate offices or records systems. See Freedom Watch, 77 F.Supp. 3d at 179-80. Plaintiff itself, the Court noted, “concedes that this was a ‘massive internal search, ’ and it does not question ‘the amount of time and effort that apparently went into the search.’” Id. at 182 (quoting First Opp. at 2).

In granting summary judgment on the adequacy of the search - the only issue Plaintiff raised then or here - the Court batted away several challenges, finding that: (1) four press releases trumpeted by Freedom Watch as having not been produced were, in actuality, not responsive to the request; (2) Defendant was not required to also search for documents relating to waivers issued under the National Defense Authorization Act of 2012 (NDAA), where the request exclusively cited CISADA and Executive Order 13553; (3) State had, pace Plaintiff, consulted with appropriate individuals in conducting the search; and (4) discovery was not warranted. Id. at 182-83.

Plaintiff appealed, and fairly soon thereafter, news reports about Secretary Clinton’s private email account and server appeared. Seizing on this development, Freedom Watch asked the Court of Appeals to remand the matter for discovery and an order to show cause why Clinton should not be held in contempt. The D.C. Circuit ultimately ordered “that the case be remanded for the district court to manage record development and oversee the search of the former Secretary’s emails for records responsive to Freedom Watch’s FOIA request.” ECF No. 54 (Mandate) (citation omitted). The Court of Appeals further ordered that “the motion for discovery and other relief be denied without prejudice to Freedom Watch seeking the same relief from the district court on remand.” Id.

The Court immediately set a status conference, at which it ordered the government to search the emails in its possession and advise Plaintiff of the results. See Minute Orders of Nov. 3, 2015, and Nov. 24, 2015. After Plaintiff’s counsel failed to appear at the next scheduled status conference, the Court set a briefing schedule for State’s renewed Motion for Summary Judgment. See Minute Order of Jan. 4, 2016. That briefing is now complete.

In its current Motion, State explains the steps it took to search the Clinton emails for responsive records after the case had returned from the Court of Appeals. According to John F. Hackett, the Director of the Office of Information Programs and Services (IPS) at State, upon remand, “the Office of the Executive Secretariat Staff (‘S/ES-S’) conducted a supplemental search of the[]” emails. Hackett Decl., ¶ 10. These consisted of “approximately 30, 000 emails, comprising approximately 52, 455 pages.” Id., ¶ 11 (footnote omitted). Hackett explains:

An S/ES-S Management Analyst with knowledge of both the request and the relevant records system conducted a full-text search of agency records in the Clinton email collection using a combination of the Windows Explorer search function and the Adobe Reader search function. The analyst searched these electronic records using the search terms: “Iran”, “Sanctions”, “13553”, “Comprehensive Iran Sanctions, Accountability, and Divestment Act”, and “CISADA” as separate search terms in combination with “Grant Waivers” or “Business” for the time period of June 1, 2010 to February 6, 2014. These searches located no responsive records.

Id., ¶ 14 (emphasis added). Freedom Watch believes Defendant’s efforts were insufficient.

II. Legal Standard

Summary judgment may be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that ...


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