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Judicial Watch, Inc. v. United States Department of State

United States District Court, District of Columbia

February 21, 2017



          JAMES E. BOASBERG United States District Judge.

         This is 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.

         I. Background

         A 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-“” 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.

         When 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.

         The 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 dispute.

         II. Legal Standard

         Summary 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).

         “FOIA 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)).

         III. Analysis

         Congress 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, 173 (1991)).

         Judicial 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 citations omitted).

         While 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 misconduct.

         Judicial 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 ...

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