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

United States District Court, District of Columbia

March 20, 2017



          AMY BERMAN JACKSON United States District Judge

         Plaintiff Judicial Watch, Inc. sent a Freedom of Information Act ("FOIA") request to defendant United States Department of State ("State Department") seeking records relating to notes or reports created in response to the September 11, 2012 attack on the United States Consulate in Benghazi, Libya. Compl. ¶ 5 [Dkt. # 1]. In this lawsuit, plaintiff contends that the State Department withheld or redacted records without justification. Defendant filed a motion for summaryjudgmentonJune6, 2016.

         The Court finds that defendant has demonstrated that only some of its withholdings were justified under FOIA Exemption 5. Therefore, the Court will grant defendant's motion for summary judgment in part and deny it in part.


         I. The Request

         In a FOIA request dated June 13, 2014, Kate Bailey, on behalf of plaintiff, sought the following:

Any and all records concerning, regarding, or related to notes, updates, or reports created in response to the September 11, 2012 attacks on the U.S. Consulate in Benghazi, Libya. This request includes, but is not limited to, notes taken by then Secretary of State Hillary Rodham Clinton or employees of the Office of the Secretary of State during the attack and its immediate aftermath. The timeframe for this request is September 11-15, 2012.

Compl. ¶ 5; Def's Statement of Material Facts as to Which There is no Genuine Dispute [Dkt. #31-3] ("Def's SOF")¶ 1; Pl's Response to Def's SOF [Dkt. ## 33-34] ("Pl's Resp. SOF") ¶ 1; Decl. of Eric F. Stein [Dkt. # 31-2] ("Stein Decl") ¶ 4; Ex. 1 to Stein Decl.

         The State Department's Office of Information Programs acknowledged receipt of plaintiffs FOIA request on July 8, 2014. Def's SOF ¶ 2; Pl's Resp. SOF ¶ 2.

         II. Procedural History

         The State Department did not respond to plaintiffs FOIA request within the statutorily-required twenty-day period. Compl. ¶ 7; see 5 U.S.C. § 552(a)(6)(A). Plaintiff filed this lawsuit on September 4, 2014, see Compl., and defendant answered on October 10, 2014. Answer [Dkt. # 6]. Over the course of the next year and a half, defendant produced documents to plaintiff until it determined that it had completed processing plaintiffs FOIA request. See Joint Status Report [Dkt. #29], The State Department began a rolling production on December 17, 2014. The first production resulted in the identification of three documents responsive to plaintiffs request, but defendant determined that all three had to be withheld in full. Def's SOF ¶ 3; Pl's Resp. SOF ¶ 3; Ex. 3 to Stein Decl. On February 11, 2015, the State Department released nine documents in full and seven documents in part, Def's SOF ¶ 4; Pl's Resp. SOF ¶ 4; Ex. 4 to Stein Decl, and on April 8, 2015, the State Department released five documents in full and two documents in part. Def's SOF ¶ 5; Pl's Resp. SOF ¶ 5; Ex. 5 to Stein Decl.

         The State Department completed processing the final part of the request on June 3, 2015, and released 306 documents in full and 62 documents in part, while withholding 9 documents in full. Def.'s SOF ¶ 6; Pl's Resp. SOF ¶ 6; Ex. 6 to Stein Decl. At the same time, the State Department provided plaintiff with a link to 68 additional responsive records contained within the 30, 000 emails former Secretary of State Hillary Clinton had provided to the State Department. Def.'s SOF ¶ 7; Pl's Resp. SOF ¶ 7; Ex. 6 to Stein Decl. Out of those sixty-eight documents, forty were released in full and twenty-eight were released in part. Def.'s SOF ¶ 7; Pl's Resp. SOF ¶ 7; Stein Decl. ¶ 9. In total, defendant released 459 documents in whole or in part, and withheld 12 documents as exempt in their entirety. See Status Report [Dkt. # 12] ¶ 4.

         On November 2, 2015, the State Department completed a supplemental search of the 30, 000 emails provided by former Secretary Clinton and released 1 document in full and 6 documents in part. Def.'s SOF ¶ 8; Pl's Resp. SOF ¶ 8; Ex. 7 to Stein Decl. And the State Department also searched materials obtained from former State Department employees Huma Abedin, Cheryl Mills, and Jacob Sullivan and released twelve documents in part on November 12, 2015, Def.'s SOF ¶ 9; Pl's Resp. SOF ¶ 9; Ex. 8 to Stein Decl., and twelve documents in full and three documents in part on November 30, 2015. Def.'s SOF ¶ 10; Pl's Resp. SOF ¶ 10; Ex. 9 to Stein Decl.

         On March 7, 2016, the State Department informed plaintiff that it had completed a search of electronic records from the Office of the Executive Secretariat and released one document in full and ten documents in part. Def.'s SOF ¶ 13; Pl's Resp. SOF ¶ 13; Ex. 10 to Stein Decl. After reviewing those materials, the State Department also produced four additional documents in full, eighteen documents in part, and withheld ten documents in full on April 7, 2016. Def.'s SOF ¶ 14; Pl's Resp. SOF ¶ 14; Ex. 11 to Stein Decl. Additionally, on June 6, 2016, the State Department identified information within nine documents that were previously withheld in part or in full and provided that information to plaintiff. Stein Decl. ¶ 14; Ex. 12 to Stein Decl.[1]

         On June 6, 2016, defendant filed a motion for summary judgment contending that the agency's searches were adequate, and that the agency had properly withheld information under FOIA Exemptions 1, 3, 5, and 6. Def.'s Mot. for Summ. J. [Dkt. # 31] ("Def.'s Mot."); Def.'s Mem. of P. & A. in Supp. of Def.'s Mot. [Dkt. #31-1] ("Def.'s Mem.") at 9-30. Plaintiff filed a cross-motion for summary judgment on July 8, 2016, in which it also opposed defendant's motion, but only challenged the State Department's withholding of certain responsive records under FOIA Exemptions 1 and 5.[2] Pl's Cross-Mot. for Summ. J. [Dkt. ## 33-34] ("Pl's Cross-Mot."); Pl's Mem. of P. & A. in Opp. to Def.'s Mot. & in Supp. of Pl's Cross-Mot. [Dkt. ## 33-34] ("Pl's Cross-Mem.") at 10-17.

         Defendant filed a reply in support of its motion for summary judgment, and in opposition to plaintiffs cross-motion for summary judgment on August 12, 2016. Def.'s Reply in Supp. of Def.'s Mot. & Mem. in Opp. to Pl's Cross-Mot. [Dkt. ## 37-38] ("Def.'s Cross-Opp."). Then, on August 24, 2016, plaintiff filed its reply to defendant's opposition, in which it narrowed its challenge only to certain withholdings under Exemption 5.[3] Pl's Reply to Def.'s Cross-Opp. [Dkt. #40] ("Pl's Cross-Reply") at 1.

         Plaintiff challenges defendant's withholdings under Exemption 5's deliberative process privilege on the grounds that the government misconduct exception applies and that all documents withheld under this privilege should be produced. Pl's Cross-Mem. at 10-12; Pl's Cross-Reply at 1-6. Also, plaintiff challenges the withholding of information contained in two documents in particular, arguing that Exemption 5' s deliberative process privilege simply does not apply to those documents. Pl's Cross-Mem. at 15-17; Pl's Cross-Reply at 1, 7-12.

         Pursuant to the Court's February 7, 2017 Order, defendant delivered the documents withheld under Exemption 5 to chambers for in camera inspection to assist the Court in making a responsible de novo ...

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