United States District Court, District of Columbia
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.
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.
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
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. 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.
State's Search Process
Office of Information Programs and Services
(“IPS”) is responsible for processing FOIA
requests. See Decl. of Eric F. Stein (“Stein
Decl.”) ¶¶ 1, 9. 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. Stein Decl. ¶ 11. The Court will
further describe State's search process based on the
individual search targets.
Office of the Legal Adviser
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. 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. 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. 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.
Office of the Executive Secretariat
management analyst with knowledge of the request and the
systems searched for responsive documents in the Office of
the Executive Secretariat. 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.
Retired Records Inventory Management System
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.
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. 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. This search yielded five
responsive documents, three of which were withheld in full
and two of which were withheld in part. Stein Decl. ¶
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.
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.
Documents Withheld on the Basis of the Deliberative Process
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. That document contains 40
questions-apparently submitted by Senator Lugar-and proposed
responses for Legal Adviser-Designate Harold Hongju
Koh. Stein Decl. ¶ 43.
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 ...