United States District Court, District of Columbia
ROSEMARY M. COLLYER United States District Judge.
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
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
. . .;
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
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.
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.
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).
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 ¶
The State Department's Search Process
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.
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'
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.
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.
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.
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.
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.
Responsive Records Concerning Telephone Calls
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).
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. 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.Id. State withheld portions of