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Judicial Watch, Inc. v. U.S. Department of State

United States District Court, District of Columbia

February 2, 2017

JUDICIAL WATCH, INC., Plaintiff,
v.
U.S. DEPARTMENT OF STATE, Defendant. Re Document Nos. 28, 29

          MEMORANDUM OPINION GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

          RUDOLPH CONTRERAS United States District Judge.

         I. INTRODUCTION

         Judicial Watch requested documents from the Department of State related to potential conflicts of interest Secretary Clinton may have had with the Clinton Foundation. The parties have come to agree upon the appropriate disclosures for much of the request, but have reached an impasse with respect to other materials. The State Department maintains that the scope of its search was appropriate under the law and that it was justified in withholding or redacting certain documents. The State Department withheld part or all of ten documents under the statutory exemption for materials that reflect an agency's deliberative process, and redacted the private email addresses of third parties in three documents under the personal privacy exemption. Judicial Watch contends that there were multiple flaws in the State Department's search process, and that several of the withheld documents were not exempt under the deliberative process privilege, because they pertained to matters outside the purview of the State Department and involved persons outside the Department. Judicial Watch also contends that some of the documents containing information withheld pursuant to the deliberative process privilege contain factual material that must be segregated and produced. Judicial Watch further argues that the identities of private email addresses-even those not associated with Hillary Clinton's private email server-are important to the public because they might show that private emails were used pervasively in the State Department during former-Secretary Clinton's tenure.

         The Court finds that although the Department of State's search was reasonable in most respects, it unreasonably failed to search the emails turned over by Huma Abedin. The Court further finds that the private email addresses of individuals who were not yet affiliated with the State Department are not of sufficient public concern to outweigh the risk of undue harassment that disclosing private email addresses could entail. However, there is no privacy interest in the mere domain extensions of email addresses, when release of the domain extension would not reveal the owner's full email address and the agency does not make any showing suggesting that the third party has such an interest. The Court also finds that several of the withheld documents withheld under the privilege for an agency's deliberative process contained reasonably segregable factual material. Finally, with respect to six documents withheld under the privilege, the Court will order the parties to supplement the record with further briefing and factual support.

         II. FACTUAL BACKGROUND

         Judicial Watch brings this Freedom of Information Act (“FOIA”) case against the Department of State (“State”) seeking certain documents related to former-Secretary of State Hillary Clinton and the Clinton Foundation.[1] See Compl. ¶ 5, ECF No. 1. In March 2015, Judicial Watch requested access to “all records . . . related to State Department review of donations to the Clinton Foundation for potential conflicts of interest with former-Secretary Clinton's Role as Secretary of State.” Compl. ¶ 5. Plaintiff also requested “all records that identify the policies and/or procedures in place to ensure that former-Secretary of State Hillary Rodham Clinton's personal or charitable financial relationships with foreign leaders, foreign governments, and business entities posed no conflict of interest to her role as Secretary of State.” Id. Plaintiff confined its request to between January 1, 2009 and January 31, 2013. Compl. ¶ 5. After State allegedly failed to take sufficient action on the request, Judicial Watch filed this lawsuit in May 2015. See Compl. at 4.

         A. State's Search Process

         State's Office of Information Programs and Services (“IPS”) is responsible for processing FOIA requests. See Decl. of Eric F. Stein (“Stein Decl.”) ¶¶ 1, 9.[2] Generally, when the State Department receives FOIA requests, IPS decides which offices and record systems “may reasonably be expected to contain the records requested” based on its familiarity of the Department and the purposes of its various offices. Stein Decl. ¶ 9. Each office within State “maintains files concerning . . . matters related to the daily operations of that office.” Stein Decl. ¶ 10. Here, IPS determined that the only offices reasonably likely to contain responsive records were the Office of the Legal Adviser, the Office of the Executive Secretariat, and the Retired Records Inventory Management System (“RIMS”). Stein Decl. ¶ 11. IPS also determined that materials sent from certain non-state.gov email addresses were also reasonably likely to contain responsive records.[3] Stein Decl. ¶ 11. The Court will further describe State's search process based on the individual search targets.

         1. Office of the Legal Adviser

         In its search of the Office of the Legal Adviser, IPS searched for documents only from the Office of Ethics and Financial Disclosure, because “[a]n employee who was knowledgeable of both the FOIA request at issue and [the Office of the Legal Adviser]'s records systems determined” that this sub-office was the only one reasonably likely to yield responsive documents.[4] See Stein Decl. ¶ 13. An employee searched the office's electronic document management system-which is “a state-of-the-art electronic records management system that permits full-text searches of documents, ” including archived emails and Microsoft Word documents-using several search terms related to the request.[5] See Stein Decl. ¶ 14 & n.1. This “content server” is not a comprehensive repository of all records in the office, but includes only those specifically uploaded to it. See Suppl. Decl. of Eric F. Stein (“Second Stein Decl.”) ¶ 4. The Assistant Legal Adviser of the Office of Ethics and Financial Disclosure also searched her own files for responsive documents using similar terms.[6] See Stein Decl. ¶ 15. These terms were agreed upon by the parties in advance. See Second Stein Decl. ¶ 5, ECF No. 32-1. The terms used to search the document management system were “broader, but no less effective” than those agreed upon by the parties. Second Stein Decl. ¶ 5 In total, the search of the Office of the Legal Adviser located ten responsive documents, of which six were produced in full, two were withheld in part, and two were withheld in full. Stein Decl. ¶ 16.

         2. Office of the Executive Secretariat

         A management analyst with knowledge of the request and the systems searched for responsive documents in the Office of the Executive Secretariat.[7] Stein Decl. ¶ 18. The Office of the Executive Secretariat is the custodian of records for the Office of the Secretary and maintains shared electronic office folders that were available to employees in the Office of the Secretary during former-Secretary Clinton's tenure. See Stein Decl. ¶ 20; Second Stein Decl. ¶ 7. The management analyst conducted a search of the electronic record systems “reasonably likely to contain responsive records” using terms agreed upon by the parties. Stein Decl. ¶ 18. The search terms were different than those used in the search of the Office of the Legal Adviser. See Stein Decl. ¶¶ 14-15, 18. An IPS analyst also searched “records retired by the Office of the Executive Secretariat, ” which are contained in shared electronic folders available to Secretary Clinton and her staff during her tenure, using slightly different terms. See Stein Decl. ¶ 20. In total, the searches yielded one document that was withheld in part. See Stein Decl. ¶ 19.

         3. Retired Records Inventory Management System (“RIMS”)

         The RIMS system is a database of retired State Department records. See Stein Decl. ¶ 21. Researchers can use the system to search the text of document manifests in order to locate a group of retired paper files. See Stein Decl. ¶ 21. Once such a group of documents is located, State must search the box manually. Stein Decl. ¶ 21. Although the IPS analyst identified two groups of documents with potentially-responsive materials, the manual search yielded no responsive records. See Stein Decl. ¶ 22.

         4. Non-state.gov Accounts

         After determining that materials sent from certain non-state.gov email accounts were reasonably likely to contain responsive records, IPS conducted a full-text search of certain emails using terms agreed upon by the parties. See Stein Decl. ¶¶ 23, 25. Prior to Judicial Watch's request, former-Secretary Clinton had “provided to the [State] Department paper copies of approximately 30, 000 [emails], comprising approximately 55, 000 pages.” Stein Decl. ¶ 24. She did so pursuant to a Department of State letter to former Secretaries of State requesting a copy of all emails known by them or their representatives to have been sent or received on a personal email account while serving as Secretary of State. Stein Decl. ¶ 24. After a search by an analyst with knowledge of the request and records, no responsive documents were located. Stein Decl. ¶ 25. An IPS analyst also conducted a search of retired non-state.gov records in shared folders available to the employees in the Office of the Secretary, and the personal folders of Cheryl Mills and Jacob Sullivan using agreed-upon search terms. Stein Decl. ¶ 26. Cheryl Mills was the Counselor for the Department of State during some of the years relevant to the FOIA request at issue and was appointed after former-Secretary Clinton assumed office.[8] Jacob Sullivan was the Director of Policy Planning-which is “a rank equivalent to an Assistant Secretary of State”-at the State Department from 2011 to 2013.[9] This search yielded five responsive documents, three of which were withheld in full and two of which were withheld in part. Stein Decl. ¶ 26.

         Cheryl Mills and Jacob Sullivan were, of course, not the only advisers that worked with Hillary Clinton when she was Secretary of State. Then-Secretary Clinton exchanged hundreds of publicly-available emails with Lauren Jiloty, Robert Russo, Monica Hanley, and Lona Valmoro. See Decl. of Chris Fedeli ¶ 2, ECF No. 29-3. She also exchanged emails with Huma Abedin, who has previously turned over emails sent or received on a personal email account. See Second Stein Decl. ¶ 7; Judicial Watch v. United States Dep't of State, 2016 U.S. Dist. LEXIS 62283, *6-7 (D.D.C. May 4, 2016). According to State, the subject-matter of the FOIA requests is not within the scope of these staffers' respective responsibilities. See Second Stein Decl. ¶ 7. Notably, however, while Huma Abedin worked for the State Department, she was “allowed to engage in private sector work while also working at the State Department, ” specifically as a consultant with the Clinton Foundation. Judicial Watch, 2016 U.S. Dist. LEXIS 62283, at *1.

         B. Responsive Documents

         In total, the searches yielded 16 responsive documents. See Stein Decl. ¶ 6. IPS released six documents in full, withheld five documents in part, and withheld five documents in full. Stein Decl. ¶ 6. State claims that these withholdings are justified by two statutory FOIA exemptions: the deliberative process privilege (“Exemption 5”) and the exemption for personal privacy (“Exemption 6”). See Stein Decl. at 10-12. Judicial Watch challenges the withholding of all documents under the deliberative process privilege, and two withholdings of private email addresses under the personal privacy exemption. See Pl.'s Cross-Mot. Summ. J. (“Pl.'s Mot. Summ. J.”) at 3-6, ECF No. 29. The Court will organize its description of the disputed withholdings based on claimed exemptions.

         1. Documents Withheld on the Basis of the Deliberative Process Privilege

         The first six disputed documents that State withheld-C05867882, C05892232, C05892233, C05892234, C05892235, and C05892237-all contain materials related to then-Senator Clinton's preparation for her Senate confirmation hearings. See Stein Decl. ¶¶ 34, 36- 38, 42-43. The first document is a two-page draft letter from then-Senator Clinton to a State Department ethics attorney “regarding the Secretary's ‘Ethics Undertakings' should she be confirmed as Secretary of State.” Stein Decl. ¶ 34. The second is an email, forwarded from one State Department official to another, containing a five-page email exchange between Cheryl Mills and then-Senator Clinton “that contains proposed talking points for addressing ethical considerations in her Senate confirmation hearing.” Stein Decl. ¶ 36. The third document is another email exchange between two non-State employees concerning the same talking points, forwarded by the same State Department officials. Stein Decl. ¶ 37. The fourth is a revised version of those same talking points. Stein Decl. ¶ 38. The fifth disputed document contains a set of “questions for the record” and proposed responses for former-Secretary Clinton's confirmation proceedings. Stein Decl. ¶ 42. The final confirmation-related document is a 65-page document entitled “Pre-hearing Questions Submitted to Legal Adviser-Designate Harold Hongju Koh by Senator Richard Lugar.” Stein Decl. ¶ 43. Mr. Koh was not employed by the State Department until after former-Secretary Clinton assumed office.[10] That document contains 40 questions-apparently submitted by Senator Lugar-and proposed responses for Legal Adviser-Designate Harold Hongju Koh.[11] Stein Decl. ¶ 43.

         The seventh-through-tenth disputed documents that State withheld-C05880711, C05867888, C05867890, and C05867776-identify potential ethical conflicts for former-Secretary Clinton. See Stein Decl. ¶¶ 35, 39-41. The seventh is a draft memorandum from ethics counsel “regarding a request from Secretary Clinton to participate in a future speaking engagement” for an undisclosed group. Stein Decl. ¶ 35. The eighth is a partially-disclosed intra-agency email exchange “relating to a request from the Clinton Foundation seeking approval of two sponsors that was submitted to the [State] Department's Ethics Office.” Stein Decl. ¶ 39. The ninth disputed document was also a partially-disclosed email exchange relating to an ethics request concerning the potential sponsorship of an event featuring former-President Bill Clinton by a foreign government. Stein Decl. ¶ 40. The final disputed document in this category was another email exchange regarding “a consulting agreement being considered by former-President [Bill] Clinton, ” and whether it posed any conflict of interest with former-Secretary ...


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