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Veterans for A Strong America v. Department of State

United States District Court, District of Columbia

September 30, 2016

VETERANS FOR A STRONG AMERICA, et al., Plaintiffs,
v.
DEPARTMENT OF STATE, Defendant.

          OPINION

          ROSEMARY M. COLLYER United States District Judge.

         Veterans for a Strong America and Joel Arends seek telephone records reflecting calls made or received by former Secretary of State Hillary Rodham Clinton, or transcripts of the same, during the twenty-four hour period in which the attacks against United States facilities and personnel in Benghazi, Libya occurred. The search for records by the U.S. Department of State did not satisfy Plaintiffs and both sue under FOIA. Plaintiffs suggest that the Court "should authorize limited discovery to confirm the existence of responsive telephonic records currently in the custody of former [Secretary Clinton] or others." Opp'n [Dkt. 19] at 1. The Court declines the suggestion and finds that State conducted adequate searches and asserted appropriate FOIA exemptions as to the records it withheld in whole or in part. For the following reasons, summary judgment will be granted to State.

         I. BACKGROUND

         Veterans for a Strong America is a non-partisan, 501(c)(4) non-profit organization. It is dedicated to educating the public, members of Congress, and the Executive Branch about a strong national defense, robust foreign policy, and building a military that is second to none. Compl. [Dkt. 1] ¶ 3. Joel Arends is the Chairman of Veterans for a Strong America and is a combat-experienced veteran. Id. ¶ 4. These Plaintiffs submitted a request under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to the Department of State (State or Department) on July 2, 2014. Id.¶M. This request asked for "all records created, received and/or maintained by [State], including all cross-references, constituting e-mails and telephonic records regarding the attacks against U.S. Government facilities and personnel in Benghazi, Libya on September 11, 2012, " limited to those that were created by State or which came into State's possession between 12:00 PM EST on September 11, 2012, and 11:59 PM EST on September 12, 2012. Id. The scope of the request was explained as:

1. E-mails either sent or received by Hillary Rodham Clinton . . .;[1]
2. Telephonic records reflecting calls made or received by Secretary Clinton. This would include calls using official phones, such as a U.S. Government-issued Blackberry or secured landline phone, as well as any personal phones (landline or mobile) that were used in her official capacity and for the purpose of conducting official U.S. Government business; and
3. Transcripts or similar documentation memorializing the substantive contents of the telephonic conversations referenced in (2).

Id. ¶ 12. On March 4, 2015, Plaintiffs contacted State to inquire regarding the status of the FOIA request. Id. ¶ 16. During the phone call, an official in State's FOIA office indicated that there was no record of the FOIA request and asked that it be resubmitted. Id. ¶ 16. Plaintiffs did so the same day. Id. ¶ 17.

         On March 6, 2014, Plaintiffs submitted a Supplement to their FOIA request asking for expedited processing. Id. ¶ 23. On March 13, 2015, State's FOIA Office contacted Plaintiffs' counsel indicating that the FOIA request had been assigned Request Number F-1014-116742. Id. ¶ 25. As of April 1, 2015, when Plaintiffs filed their Complaint, they had received no response with respect to their request for expedited process. Id. ¶ 28.

         On June 30, 2015, the parties agreed to a production schedule of the requested records. On June 29, 2015, State informed Plaintiffs that it had initiated a search of certain records systems and produced the first set of responsive documents. See Declaration of John F. Hackett [Dkt. 17-4] (Hackett Deck) ¶¶ 8-9. State produced the remaining documents in October 2015 and February 2016. Id. ¶ 10-12. State filed for summary judgment on February 23, 2016. See Mot. for Summ. J. [Dkt. 17] (MSJ). Plaintiffs' filed their opposition on April 4, 2016, see Opp'n to MSJ [Dkt. 19] (Opp'n), and State replied on April 25, 2016, see Reply in Supp. of MSJ [Dkt. 20] (Reply).

         In support of its motion for summary judgment, the Department has submitted the Declaration of John F. Hackett, the Director of the Office of Information Programs and Services (IPS) at State. See Hackett Deck ¶ 1. Mr. Hackett's Declaration is 71 pages long, includes nine exhibits, and provides great detail about how State conducted its searches and made its decisions on applicable FOIA exemptions. He states that IPS advised Plaintiffs by letter dated April 21, 2015, that it had determined that their requests warranted expedited processing. Hackett Deck ¶ 7.

         A. The State Department's Search Process

         After reviewing Plaintiffs' request, IPS identified three record systems or offices likely to contain responsive records: the Central Foreign Policy Records, the Bureau of Near Eastern Affairs, and the Executive Secretariat. Id. ¶ 15.

         The Central File is the Department's centralized record system and contains over 30 million records of a substantive nature, "including official record copies of almost all incoming and outgoing telegrams between the Department and Foreign Service posts." Hackett Deck ¶ 17. "Because the Central File is the Department's most comprehensive and authoritative compilation of records, it is by far the records system most frequently searched in response to FOIA requests." Id. "An IPS analyst. . . conducted a full-text search of the Central File using the following search terms: ('Clinton' or 'secretary') and ('Benghazi' or 'Libya')." Id. ¶ 19. The search did not locate any records responsive to Plaintiffs' request. Id.

         An IPS analyst also searched retired electronic and paper files of the Office of the Secretary during Secretary Clinton's tenure. Id. ¶ 20. These consisted of "shared electronic office folders that were available to employees within the Office of the Secretary during former Secretary Clinton's tenure, as well as individual electronic folders of files belonging to Jake Sullivan and Cheryl Mills." Id. ¶ 20. A full-text search of the retired electronic records using the search terms ("Clinton" or "Secretary") and ("September 11, 2012" or "September 12, 2012") located six responsive documents. Id. After manually reviewing the manifests of retired files in the Retired Record Inventory Management System, "a database that tracks the status of all retired records received at the Records Service Center, " an IPS analyst identified two boxes of retired paper files that potentially contained responsive material. Id. ¶ 20, n.2. "An IPS analyst conducted a manual search of the contents of these boxes and located three responsive documents." Id. ¶ 20. "For one of these boxes, the folder identified on the manifest as 'Secretary of State Phone Logs 2012-2013' was missing from the box. The Records Service Center was notified regarding the missing file folder; however, efforts to locate it have been unsuccessful." Id. ¶ 20, n.3.

         The Bureau of Near Eastern Affairs (Bureau) advises the Secretary on matters in North Africa and the Middle East. Id.¶2\. The Bureau's electronic records are organized by topic and subject. Id. ¶ 22. After searching the electronic records-"including shared drives, databases, and current and archived e-mail records"-and the paper files in the Bureau, three responsive documents were located. Id.

         The Office of the Executive Secretariat coordinates the work of the Department internally, serving as the liaison between State's bureaus and the offices of the Secretary, Deputy Secretary, and Under Secretaries. Id. ¶ 23. A Management Analyst on the Secretariat staff conducted searches of the electronic records systems that were reasonably likely to contain responsive records. Id. ¶ 24. "These systems are the Secretariat Tracking and Retrieval System, the Secretariat Telegram Processing System, and top secret files." Id. Documents in the Secretariat Tracking and Retrieval System are indexed, scanned, and stored as images; a descriptive abstract is attached to each document and only the text of the abstracts can be searched. Id. ¶ 24, n.4. Similarly, during the top secret search, search terms were applied to an index of files rather than the full text of the top secret files. Id. ¶ 26. The search terms used were: "Secretary Hillary Clinton, " or "Benghazi, " or "Libya, " or "Huma Abedin, " or "Cheryl Mills, " or "Secy-app, " or "Memcon" (not further identified). Id. ¶ 24. Any of the terms listed would have retrieved any documents that contained one or more of the search words. Id. ¶ 25. These searches located eight responsive records. Id. ¶ 24.

         A Management Analyst on the Secretariat staff conducted a full-text search in the Clinton email collection using the search terms: "Hillary Clinton, " or "Benghazi, " or "Secy-app, " or "Memcon, " or "Attack, " or "Mission, " or "Consulate, " or "Chris Stevens." Id. ¶ 27. This search retrieved six responsive records. In addition, 33 responsive records were retrieved during an earlier search of a collection of 296 of Secretary Clinton's emails. Id. ¶ 28, n.6. These 296 emails were compiled in response to a Congressional request asking for Benghazi-related emails. Id.

         The Executive Secretariat is also responsible for searches of the State Department's Operations Center. The Director of the Operations Center conducted a search of the emails in the archive of the email account that is used by duty officers in the Operations Center and located 49 responsive documents. Id. ¶ 29. The Director also searched the email account of the Operations Director during September 2012 and located four responsive documents.

         B. Responsive Records Concerning Telephone Calls

         State produced a total of 112 responsive documents. Hackett Deck ¶ 67. Of these, 25 documents were released in full, 85 were released in part, and 2 were withheld in full. Id. Mr. Hackett has conveniently identified every document that was located by number and explained whether it was released in full or in part, as well as any applicable FOIA exemption, specifically Exemptions (b)(1), (5), and (6).

         The following documents concerning telephone calls were withheld in full or in part pursuant to FOIA Exemption (b)(1):

• Document C05660793 is a two-page intra-agency email exchange dated September 12, 2012, regarding a telephone conversation between Secretary Clinton and Egyptian Prime Minister Kandil about the recent violence towards U.S. diplomatic posts in Libya and Egypt. Id. ¶ 54. Part of this record is designated CONFIDENTIAL under Executive Order 13526.[2] State withheld both foreign government information and information regarding foreign relations activities of the United States, pursuant to §§ 1.4(b) and (d) of the Executive Order. Id.
• Document C05660817 "is a two-page 'Call Sheet' for Secretary Clinton regarding a planned call with a foreign official, which contains several points regarding the attacks on U.S. facilities in Benghazi, Libya. Id. ¶ 55. Portions of the document are designated CONFIDENTIAL and withheld pursuant to § 1.4(d) of the Executive Order because it concerns the foreign relations activities of the United States. Id.
• Document C05872474 is a four-page cable dated September 12, 2012, containing a memorandum of a telephone conversation between Secretary Clinton and Afghan President Karzai, which is currently designated CONFIDENTIAL and withheld in full pursuant to §§ 1.4(b) and 1.4(d) of the Executive Order. Id. ¶ 56.
• Document C05872473 is a four-page cable dated September 12, 2012, containing a memorandum of a telephone conversation between Secretary Clinton and Prime Minister Kandil. Id. ¶ 57. Portions of this document are currently designated SECRET under the Executive Order.[3]Id. State withheld portions of ...

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