United States District Court, District of Columbia
E. BOASBERG United States District Judge.
yet another case spun off from the e-maelstrom swirling
around Hillary Clinton's use of a private server during
her time as Secretary of State. At issue here is the
sufficiency of the State Department's response to a
Freedom of Information Act request by Plaintiff Judicial
Watch that sought records pertaining to the production of
certain Clinton emails. Judicial Watch contends that
Defendant improperly withheld, in whole or in part, 30 such
documents under Exemption 5 of FOIA. After reviewing these
records in camera, the Court disagrees. As such, it
will grant the State Department's Motion for Partial
Summary Judgment as to this FOIA request.
cursory summary is all that is needed to tee up the narrow
issue now at play. On March 6, 2015, Plaintiff submitted FOIA
request F-2015-05048 to Defendant, seeking certain records
either relating to “the production of 55, 000 emails by
former Secretary of State Hillary Clinton” or
containing communications between State Department employees
and Clinton (or her associates) about emails she sent from
non-“state.gov” email addresses. See ECF
No. 25 (Declaration of Eric Stein), ¶ 4. In other words,
the documents sought were not the emails themselves, but
rather discussions about the emails.
State failed to respond to this request within certain
statutory time limits, Judicial Watch filed this action to,
inter alia, compel disclosure of the records.
See ECF No. 1 (Complaint). Defendant subsequently
turned over 87 documents in full, but partially or wholly
withheld another 153 under various FOIA exemptions.
See Stein Decl., ¶¶ 10-13.
parties then cross-moved for partial summary judgment as to
the sufficiency of this determination, ultimately disputing
only whether the Department had properly withheld 30 records
under Exemption 5. See ECF No. 25 (Motion); ECF No.
31 (Cross-Motion). To aid in resolving that question, on
January 24, 2017, the Court ordered Defendant to produce the
records for in camera review. See Minute
Order of Jan. 24, 2017. Having now completed that evaluation,
the Court is primed to resolve the parties' present
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). A genuine issue of material fact is one
that would change the outcome of the litigation. See
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986) (“Only disputes over facts that might affect the
outcome of the suit under the governing law will properly
preclude the entry of summary judgment.”). In the event
of conflicting evidence on a material issue, the Court is to
construe the conflicting evidence in the light most favorable
to the non-moving party. See Sample v. Bureau of
Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual
assertions in the moving party's affidavits or
declarations may be accepted as true unless the opposing
party submits his own affidavits, declarations, or
documentary evidence to the contrary. Neal v. Kelly,
963 F.2d 453, 456-57 (D.C. Cir. 1992).
cases typically and appropriately are decided on motions for
summary judgment.” Defenders of Wildlife v. Border
Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009); Bigwood
v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 73
(D.D.C. 2007). In FOIA cases, the agency bears the ultimate
burden of proof. See Dep't of Justice v. Tax
Analysts, 492 U.S. 136, 142 n.3 (1989) (citations
omitted). The Court may grant summary judgment based solely
on information provided in an agency's affidavits or
declarations when they “describe the documents and the
justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted
by either contrary evidence in the record nor by evidence of
agency bad faith.” Military Audit Project v.
Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such
affidavits or declarations are “accorded a presumption
of good faith, which cannot be rebutted by ‘purely
speculative claims about the existence and discoverability of
other documents.'” SafeCard Servs., Inc. v.
SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting
Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771
(D.C. Cir. 1981)).
enacted FOIA in order “to pierce the veil of
administrative secrecy and to open agency action to the light
of public scrutiny.” Dep't of the Air Force v.
Rose, 425 U.S. 352, 361 (1976) (citation omitted).
“The basic purpose of FOIA is to ensure an informed
citizenry, vital to the functioning of a democratic society,
needed to check against corruption and to hold the governors
accountable to the governed.” John Doe Agency v.
John Doe Corp., 493 U.S. 146, 152 (1989) (citation
omitted). The statute thus provides that “each agency,
upon any request for records which (i) reasonably describes
such records and (ii) is made in accordance with published
rules . . . shall make the records promptly available to any
person.” 5 U.S.C. § 552(a)(3)(A). Consistent with
this mandate, federal courts have jurisdiction to order the
production of records that an agency improperly withholds.
See id. § 552(a)(4)(B); Dep't of
Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 754-55 (1989). In making this determination, the
court “[a]t all times . . . must bear in mind that FOIA
mandates a ‘strong presumption in favor of
disclosure.'” Nat'l Ass'n of Home
Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002)
(quoting Dep't of State v. Ray, 502 U.S. 164,
Watch seeks the release here of 30 records that the State
Department withheld in whole or in part under Exemption 5 of
FOIA. This exemption from the statute's disclosure
requirements allows an agency to withhold “inter-agency
or intra-agency memorandums or letters that would not be
available by law to a party other than an agency in
litigation with the agency.” 5 U.S.C. § 552(b)(5).
Under Exemption 5, the agency may thus refuse to turn over
“documents normally privileged in the civil discovery
context.” NLRB v. Sears, Roebuck & Co.,
421 U.S. 132, 149 (1975). Although this exemption covers
several privileges, the one in focus here is the
deliberative-process privilege. This privilege shields
internal agency “advisory opinions, recommendations and
deliberations” from release in order to “protect[
] the decision making processes of government
agencies.” Id. at 150 (quotation marks and
Judicial Watch concedes that this privilege appears to exempt
the material it seeks, it nevertheless invokes the narrow
government-misconduct exception in an attempt to overcome
that privilege for these records. Nat'l Whistleblower
Ctr. v. Dep't of Health & Human Servs., 903
F.Supp.2d 59, 68-69 (D.D.C. 2012) (explaining extreme
government misconduct may override deliberative-process
privilege in FOIA context); see also In re Sealed
Case, 121 F.3d 729, 738 (D.C. Cir. 1997) (“[W]here
there is reason to believe the documents sought may shed
light on government misconduct, the privilege is routinely
denied [in non-FOIA cases], on the grounds that shielding
internal government deliberations in this context does not
serve the public's interest in honest, effective
government.”) (quotation marks and citations omitted).
In the FOIA context, this requires the party seeking the
records to “provide an adequate basis for believing
that [the material withheld] would shed light upon government
misconduct.” Nat'l Whistleblower, 903
F.Supp.2d at 67 (quoting Judicial Watch of Florida, Inc.
v. Dep't of Justice, 102 F.Supp.2d 6, 15 (D.D.C.
2000)); see also ICM Registry, LLC v. Dep't of
Commerce, 538 F.Supp.2d 130, 133 (D.D.C. 2008) (noting
courts have applied this exception under FOIA in
circumstances of extreme government wrongdoing). A document
sheds light on misconduct when it “reflects any
governmental impropriety, ” but not when it merely
reflects a “part of the legitimate government process
intended to be protected by Exemption 5.” Nat'l
Whistleblower, 903 F.Supp.2d at 68 (citation omitted).
Indeed, this limit on the exception is necessary to assure
that it does not swallow the deliberative-process rule.
ICM Registry, 538 F.Supp.2d at 133. The public
continues, after all, to have a clear interest in preserving
the space necessary for government actors to engage in the
type of honest and appropriate deliberations that preserve
effective governance, even when they concern past
Watch nevertheless contends that the exception operates here
because the records would purportedly illuminate the
Department's complicity in Clinton's misuse of a
private server or, alternatively, expose later discussions by
State employees “to create misinformation to minimize
the public's perception” of that conduct.
See Cross-Mot. at 3. The latter, so the argument
goes, would constitute an improper purpose that could alone
amount to sufficient government malfeasance. See ICM