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

United States District Court, District of Columbia

August 8, 2017

JUDICIAL WATCH, INC., Plaintiff,
v.
U.S. DEPARTMENT OF STATE, Defendant.

          MEMORANDUM OPINION AND ORDER

          AMIT P. MEHTA, UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         This case concerns a Freedom of Information Act (“FOIA”) request for former Secretary of State Hillary Clinton's e-mails related to the September 11, 2012, attack on the U.S. consulate in Benghazi, Libya. Although this matter began with much fanfare, the only remaining dispute is whether Defendant Department of State (“State”) conducted an adequate search for records responsive to Plaintiff Judicial Watch, Inc.'s FOIA request. Because Secretary Clinton used a personal e-mail server for work-related communications, Plaintiff's request caused State to look beyond its own e-mail servers for responsive records. State searched three external sources: (1) a cache of approximately 30, 000 e-mails turned over to State by Secretary Clinton; (2) documents produced by three of her top aides-Huma Abedin, former Deputy Chief of Staff; Cheryl Mills, former Chief of Staff; and Jacob Sullivan, former Director of Policy Planning; and (3) the collection of e-mails recovered by the Federal Bureau of Investigation (“FBI”) during its investigation of Secretary Clinton's use of a personal e-mail server. Plaintiff asserts that State's search was deficient in two respects. First, Plaintiff contends that State should have searched the official “state.gov” e-mail accounts of Abedin, Mills, and Sullivan to identify responsive records. Second, Plaintiff maintains that State also was required to search e-mails that the FBI discovered in the fall of 2016 during an unrelated investigation of Abedin's husband, Anthony Weiner. State, for its part, defends the adequacy of its searches and rejects Plaintiff's assertion that additional searches are likely to unearth more responsive e-mails.

         This matter is before the court on the parties' cross-motions for summary judgment. The court finds that State's search was inadequate insofar as it did not search the official state.gov email accounts of Secretary Clinton's three aides, and orders State to conduct a supplemental search of those accounts. With respect to the e-mails more recently discovered by the FBI, State has agreed to search those records in another case pending in this District; therefore, the court will defer its ruling as to Plaintiff's second challenge until State's search of those records is complete. Accordingly, the court grants the parties' motions in part and denies them in part.

         II. BACKGROUND

         On March 4, 2015, Plaintiff Judicial Watch submitted a FOIA request to State, seeking:

Any and all e-mails of former Secretary of State Hillary Rodham Secretary Clinton concerning, regarding, or relating to the September 11, 2012 attack on the U.S. Consulate in Benghazi, Libya.
The timeframe for this request is September 11, 2012 to January 31, 2013.

Def.'s Mot. for Summ. J., ECF No. 40 [hereinafter Def.'s Mot.], Def.'s Stmt. of Material Facts, ECF No. 40-3 [hereinafter Def.'s Stmt.], ¶ 1; Pl.'s Cross-Mot. for Summ. J., ECF No. 43, at 16- 23 [hereinafter Pl.'s Resp.], ¶ 1.[1] Plaintiff sought the documents as part of its investigation into the Benghazi attack and the federal government's public response. Pl.'s Cross-Mot. for Summ. J., ECF No. 43, at 23-31 [hereinafter Pl.'s Stmt.], ¶ 5.[2] After State did not respond to Plaintiff's request within the statutorily-mandated period, Plaintiff filed this action. Compl., ECF No. 1. Thereafter, the parties agreed to a schedule by which State would produce the requested e-mails. Joint Status Report, July 15, 2015, ECF No. 10.

         Secretary Clinton's use of a personal e-mail server to send and receive work-related communications prevented recovery of the requested material from State's own servers. State instead searched three sets of records that it received from other sources. First, it searched a collection of approximately 30, 000 e-mails Secretary Clinton provided to State in December 2014 in response to its request for any federal records that she had in her possession. Def.'s Stmt. ¶¶ 20- 21; Pl.'s Resp. ¶¶ 20-21; Stein Decl. ¶ 14 & n.2. This search yielded 342 responsive documents, of which State released 125 in full and 217 in part to Plaintiff. Def.'s Stmt. ¶¶ 27, 29-30; Pl.'s Resp. ¶¶ 27, 29-30. Second, State searched documents it received from three of Secretary Clinton's top aides: Huma Abedin, former Deputy Chief of Staff; Cheryl Mills, former Chief of Staff; and Jacob Sullivan, former Director of Policy Planning. Def.'s Stmt. ¶¶ 7, 22; Pl.'s Resp. ¶¶ 7, 22; Stein Decl. ¶ 14 & nn. 3-5. State had asked these individuals to turn over any e-mails or other records concerning official government business sent or received on a personal e-mail account while serving in their official capacities with State. Def.'s Mot., Decl. of Eric F. Stein, ECF No. 40-4 [hereinafter Stein Decl.], ¶ 14 nn. 3-5. This search yielded one additional responsive document, which State released in part. Def.'s Stmt. ¶ 32; Pl.'s Resp. ¶ 32. Third, State searched the collection of e-mails that the FBI recovered during its investigation of Secretary Clinton's use of a personal e-mail server. Def.'s Stmt. ¶¶ 33-34; Pl.'s Resp. ¶¶ 33-34; Second Stein Decl. ¶¶ 5-6. This search yielded three additional responsive documents, which State released in part. Def.'s Stmt. ¶¶ 9, 36; Pl.'s Resp. ¶¶ 9, 36. In total, State provided 348 documents to Plaintiff, producing 125 in full and 223 in part. Def.'s Stmt. ¶¶ 27, 29-30, 32, 36; Pl.'s Resp. ¶¶ 27, 29-30, 32, 36.[3]

         III. LEGAL STANDARD

         Most FOIA cases are appropriately resolved on motions for summary judgment. Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). A court must grant a motion for summary judgment “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 dispute is “genuine” only if a reasonable fact-finder could find for the nonmoving party, and a fact is “material” only if it is capable of affecting the outcome of litigation. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” U.S. Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).

         A court may grant summary judgment in a FOIA case based solely on the information provided in an agency's supporting affidavits or declarations if those affidavits or declarations are “relatively detailed and non-conclusory.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks omitted). The agency's affidavits or declarations must “describe the documents and the justifications for nondisclosure with reasonably specific detail [and] demonstrate that the information withheld logically falls within the claimed exemption.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Further, they must not be “controverted by either contrary evidence in the record [or] by evidence of agency bad faith.” Id. Agency affidavits are entitled to a “presumption of good faith, which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents.'” SafeCard Servs., 926 F.2d at 1200 (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d 937, 941 (D.C. Cir. 2013) (internal quotation marks omitted).

         IV. ...


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