United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE
March 2015, Plaintiff Judicial Watch submitted three Freedom
of Information Act (“FOIA”), 5 U.S.C. § 552,
requests for records to the U.S. Department of State. Those
requests sought release of records relating to former
Secretary of State Hillary Clinton's use of “a
non-‘state.gov' email address” and
“clintonemail.com email server.” See
Dkt. 22-3 at 3, 21, 31. The State Department did not provide
a timely response to any of the three requests, prompting
Judicial Watch to file this action on May 6, 2015.
See Dkt. 1. Subsequently, the State Department
conducted an extensive search, identified six responsive
documents, released five of those documents to Judicial Watch
with partial redactions, and withheld one in full.
See Dkt. 22-1 at 5-6; Dkt. 26 at 4-5.
parties have now cross-moved for summary judgment. Dkt. 22;
Dkt. 26. Those motions raise three questions: First, did the
State Department properly withhold the Report of
Investigation (“ROI”) for former State Department
employee Bryan Pagliano? Second, is there any reasonably
segregable, non-exempt information in the ROI that the State
Department should have released to Judicial Watch? Third, did
the State Department properly redact portions of an email
chain between Secretary Clinton and General David Petraeus?
For the reasons explained below, the Court concludes that the
answer to the first two questions is “yes, ” and
that the answer to the third question is, in part,
“yes, ” and, in part, “perhaps.”
the Court will grant in part and deny in part the State
Department's motion for summary judgment and will deny
Judicial Watch's cross-motion.
March 6, 2015, and March 9, 2015, Judicial Watch submitted
three FOIA requests to the State Department. Dkt. 22-4 at 1
(Def.'s SUMF ¶ 1). The first, dated March 6, sought
records relating to Secretary Clinton's “use of a
non-‘state.gov' email address, ” including
records “concerning security, classification,
preservation, and compliance with the Federal Records Act
and/or [FOIA].” Dkt. 22-3 at 3. Judicial Watch's
second request, dated March 9, sought “communications
between officials” at the State Department and White
House concerning Secretary Clinton's “use of
non-‘state.gov' email addresses.”
Id. at 21. And the third request, also dated March
9, sought records “related to expenses incurred in the
creation, maintenance[, ] and/or use of the clintonemail.com
email server domain.” Id. at 31.
October 30, 2015, the State Department “completed its
search for records potentially responsive to [Judicial
Watch's] requests, ” locating “approximately
16, 900 pages” of potentially responsive documents.
Dkt. 11 at 2. The parties agreed that the State Department
would complete its review and production of the records by
January 20, 2016, id. at 3, and, by that date, the
Department produced three documents to Judicial Watch, Dkt.
22-4 at 2 (Def.'s SUMF ¶ 7). It also informed
Judicial Watch that it was withholding a fourth document in
full-an ROI created as part of the background investigation
into Bryan Pagliano, which was prepared in the course of
considering his appointment to a “Schedule C”
position at the Department. Dkt. 26-1 at 12-13; see
also Dkt. 22-4 at 2 (Def.'s SUMF ¶ 8). Prior to
his appointment, Pagliano “ran technology for the
Clinton for President campaign, ” Dkt. 26-1 at 13, and,
while at the State Department, he served as an “IT
specialist” to Secretary Clinton, Dkt. 26 at 21
(Pl.'s SUMF ¶ 13).
mid-2016, the parties each moved for summary judgment.
See Dkt. 17; Dkt. 18. Among other issues, that
original round of briefing raised the question whether the
State Department had conducted an adequate search for
responsive records. See Dkt. 18 at 5-6. On July 12,
2016, however, the FBI informed the State Department that it
had “obtained certain information that may include
[State Department] agency records” and indicated that
it would “provid[e] this information to [the
Department] for review” and “subsequent FOIA
processing as appropriate.” Dkt. 22-3 at 44. “The
FBI transferred such information to [the] State
[Department]” in July and August 2016, and the
Department “agreed to conduct searches of the
information being transferred” for “records
responsive to [two of] [Judicial Watch's] FOIA
requests.” Dkt. 22-2 at 24-25 (Second Stein Decl.
¶ 64). After reviewing the newly acquired documents, the
State Department released two additional documents to
Judicial Watch, including an email exchange between Secretary
Clinton and General David Petraeus. Dkt. 22-4 at 2
(Def.'s SUMF ¶ 11). That email exchange involved a
staffing issue and a recommendation regarding dealing with a
foreign leader. Dkt. 22-1 at 18. Because Judicial Watch
“indicated that it wishe[d]” to add
“challenge[s] [to] the redactions applied” to the
email exchange and to “the adequacy of [State's]
supplemental search” to its initial set of challenges,
the parties “propose[d] that the Court deny the pending
cross-motions for summary judgment as moot” and set a
new schedule for summary judgment briefing that would
“encompass all of the matters . . . currently at
issue” in the litigation. Dkt. 21 at 1. The Court
accepted the parties' proposal, see Minute Order
(Oct. 28, 2016), and the parties subsequently filed the
cross-motions for summary judgment that are currently before
the Court, see Dkt. 22; Dkt. 26.
Freedom of Information Act is premised on the notion that an
informed citizenry is “vital to the functioning of a
democratic society, needed to check against corruption and to
hold the governors accountable to the governed.”
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). It thus mandates that an agency disclose records
on request, unless they fall within one of nine exemptions.
“These exemptions are explicitly made exclusive and
must be narrowly construed.” Milner v. Dep't of
Navy, 562 U.S. 562, 565 (2011) (citation and internal
quotation marks omitted). FOIA cases are typically resolved
on motions for summary judgment under Federal Rule of Civil
Procedure 56. See, e.g., Shapiro v. U.S.
Dep't of Justice, 153 F.Supp.3d 253, 268 (D.D.C.
2016). To prevail on a summary judgment motion, the moving
party must demonstrate that there are no genuine issues of
material fact and that he or she is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a);
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).
In a FOIA action, “the Court may award summary judgment
to an agency solely on the basis of information provided in
affidavits or declarations that describe ‘. . . the
justifications for nondisclosure [of records] with reasonably
specific detail . . . and are not controverted by either
contrary evidence in the record nor by evidence of agency bad
faith.'” Thomas v. FCC, 534 F.Supp.2d 144,
145 (D.D.C. 2008) (alterations in original) (quoting
Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981)). The Court reviews the agency's
decision de novo, and the agency bears the burden of
sustaining its action. 5 U.S.C. § 552(a)(4)(B).
State Department asserts that it properly withheld
Pagliano's ROI in full under FOIA Exemptions 7(C) and
7(E). Dkt. 22-1 at 12-17. Those exemptions apply to records
“compiled for law enforcement purposes, ” the
disclosure of which “could reasonably be expected to
constitute an unwarranted invasion of personal privacy,
” 5 U.S.C. § 552(b)(7)(C), or “would
disclose techniques and procedures for law enforcement
investigations, ” id. § 552(b)(7)(E).
Department further argues that, after “review[ing] [the
ROI] on a line-by-line basis, ” it has determined that
“there is no additional non-exempt information that may
reasonably be segregated and released.” Dkt. 22-1 at
20. Judicial Watch, in turn, responds that the State
Department has failed to satisfy Exemption 7's threshold
requirement that the ROI was “compiled for law
enforcement purposes, ” Dkt. 26 at 8-10; that the
Exemption 7(C) balancing test favors disclosure, id.
at 11-13; that the Department has failed to demonstrate that
information contained in the ROI would reveal law enforcement
techniques within the meaning of Exemption 7(E), id.
at 13; and that the Court should perform an in
camera review of the ROI to determine if there are any
segregable portions that can be released, id. at
7(C) protects from disclosure “records or information
compiled for law enforcement purposes, ” but
“only to the extent that” disclosure “could
reasonably be expected to constitute an unwarranted invasion
of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
Accordingly, to invoke Exemption 7(C), the State Department
must satisfy a two-part test: First, it must “make a
threshold showing that . . . [Pagliano's ROI] w[as]
compiled for a law enforcement purpose.” Lindsey v.
FBI, ___ F.Supp.3d ___, No. 16-2302, 2017 WL 4179886, at
*3 (D.D.C. Sept. 20, 2017) (internal quotation marks
omitted). Second, it must demonstrate that disclosure of the
ROI “could reasonably be expected to constitute an
unwarranted invasion of personal privacy.” Tracy v.
U.S. Dep't of Justice, 191 F.Supp.3d 83, 95 (D.D.C.
2016) (quoting 5 U.S.C. § 552(b)(7)(C)).
Compiled for Law Enforcement Purposes
establish that Pagliano's ROI was “compiled for law
enforcement purposes, ” the State Department
“need only ‘establish a rational nexus between
the investigation and one of [the Department's] law
enforcement duties and a connection between an individual or
incident and a possible security risk or violation of federal
law.'” Blackwell v. FBI, 646 F.3d 37, 40
(D.C. Cir. 2011) (quoting Campbell v. Dep't of
Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)). “The
term ‘law enforcement' in Exemption 7 refers to the
act of enforcing the law, both civil and criminal.”
Pub. Emps. for Envtl. Responsibility v. U.S. Section,
Int'l Boundary & Water Comm'n
(PEER), 740 F.3d 195, 203 (D.C. Cir. 2014).
Department argues that Pagliano's ROI meets that standard
because “it was created by State's Bureau of
Diplomatic Security (‘DS') as part of a security
clearance background investigation.” Dkt. 22-1 at 14
(citing Dkt. 22-2 at 29, 32 (Second Stein Decl. ¶¶
77, 84-85)). It asserts that DS is the “law enforcement
arm of State, ” and that the ROI is “an
investigative document utilized by law enforcement . . .
entities . . . for security clearance related
purposes.” Id. (quoting Dkt. 22-2 at 29
(Second Stein Decl. ¶¶ 76-77)). Judicial Watch, for
its part, responds that the ROI is merely “a report
memorializing a ...