United States District Court, District of Columbia
BERMAN JACKSON United States District Judge
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.
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.
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.
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.
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.
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.
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.
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
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. 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.
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
Pl's Reply to Def.'s Cross-Opp. [Dkt. #40]
("Pl's Cross-Reply") at 1.
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.
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 ...