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

United States District Court, District of Columbia

September 30, 2017

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

          MEMORANDUM OPINION AND ORDER

          RANDOLPH D. MOSS, UNITED STATES DISTRICT JUDGE

         In 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.

         The 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.”

         Accordingly, 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.

         I. BACKGROUND

         Between 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.

         On 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).

         In 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.

         II. LEGAL STANDARD

         The 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).

         III. ANALYSIS

         A. Pagliano ROI

         The 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).

         The 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 16-17.[1]

         1. Exemption 7(C)

         Exemption 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)).

         a. Compiled for Law Enforcement Purposes

         To 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).

         The 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 ...


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