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

United States District Court, District of Columbia

January 11, 2018



          COLLEEN KOLLAR-KOTELLY, United States District Judge

         This case under the Freedom of Information Act ("FOIA") concerns Plaintiff Judicial Watch, Inc.'s request to Defendant U.S. Department of State for the disclosure of (1) "[a]ny and all records of requests by former Secretary of State Hillary Rodham Clinton or her staff to the State Department Office of Security Technology seeking approval for the use of an iPad or iPhone for official government business, " and (2) "[a]ny and all communications within or between the Office of the Secretary of State, the Executive Secretariat, and the Office of the Secretary and the Office of Security Technology concerning, regarding, or related to the use of unauthorized electronic devices for official government business, " in each instance between January 1, 2009, and January 31, 2013. Compl., ECF No. 1, ¶ 5.

         In the Court's Order of September 21, 2017, the Court granted Plaintiffs [29] Motion for Summary Judgment "solely to the extent it seeks in camera review" of portions of certain documents withheld by Defendant pursuant to the deliberative process privilege available under FOIA Exemption 5. Order, ECF No. 33 ("Order"), at 1, 3. In addition, "[t]o the extent Defendant continues to decline [Plaintiffs request] to search the additional materials allegedly recovered [by the Federal Bureau of Investigation ("FBI")] in October 2016, " the Court also ordered Defendant to submit an affidavit describing the agency's control over those documents. Id. at 3-4. The Court otherwise denied the parties' [25] and [29] cross-motions for summary judgment. Id. at 3.

         In response to the Order, Defendant has submitted under seal and ex parte the thirteen documents requested for in camera review, [1] as well as a declaration addressing agency control over the additional materials. -SeeDef's Notice of Submission of Docs, for In Camera Review, ECF No. 34; Def's Notice of Filing of Decl., ECF No. 35. The Court permitted the parties to renew their cross-motions for summary judgment, and to submit additional briefing if they so desired. Order at 4. Neither party has done so. Nevertheless, the Court shall proceed with its determination under the summary judgment standard.


         A. Summary Judgment

         Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and [that it] ... is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). Under this standard, the moving party bears the "initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986) (internal quotation marks omitted). "[T]he Court may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." L. Civ. R. 7(h). The mere existence of some factual dispute is insufficient on its own to bar summary judgment; the dispute must pertain to a "material" fact. Id. Accordingly, "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Nor may summary judgment be avoided based on just any disagreement as to the relevant facts; the dispute must be "genuine, " meaning that there must be sufficient admissible evidence for a reasonable trier of fact to find for the non-movant. Id.

         When faced with a motion for summary judgment, the district court may not make credibility determinations or weigh the evidence; instead, the evidence must be analyzed in the light most favorable to the non-movant, with "all justifiable inferences . . . drawn in [its] favor. Id. at 255. "If material facts are at issue, or, though undisputed, are susceptible to divergent inferences, summary judgment is not available." Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009) (quoting Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994)). In the end, the district court's task is to determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Liberty Lobby, 477 U.S. at 251-52. In this regard, the non-movant must "do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Liberty Lobby, 477 U.S. at 249-50.

         B. FOIA Exemptions in Summary Judgment Context

         Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep 't of the Air Force v. Rose, 425 U.S. 352, 361 (1976). Congress remained sensitive to the need to achieve balance between these objectives and the potential that "legitimate governmental and private interests could be harmed by release of certain types of information." FBI v. Abramson, 456 U.S. 615, 621 (1982). To that end, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions." Milner v. Dep't of Navy, 562 U.S. 562, 564 (2011). Ultimately, "disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361. For this reason, the "exemptions are explicitly made exclusive, and must be narrowly construed." Milner, 562 U.S. at 565 (citations and internal quotation marks omitted).

         Ordinarily, when presented with a motion for summary judgment in this context, the district court would conduct a "de novo" review of the record, which requires the court to "ascertain whether the agency has sustained its burden of demonstrating the documents requested ... are exempt from disclosure under the FOIA." Multi AgMedia LLC v. U.S. Dep 'tof Agric, 515 F.3d 1224, 1227 (D.C.Cir. 2008) (omission in original) (internal quotation marks omitted). The burden would be on the agency to justify its response to the plaintiffs request. 5 U.S.C. § 552(a)(4)(B) (2016).

         Where the agency has met its burden, or the threshold applicability of an exemption is not contested, an exception to the exemption may still apply. The Court shall assess below whether a government misconduct exception to FOIA Exemption 5 is available in this circuit. In the event that it is, "[t]he party seeking release of withheld documents under this exception must 'provide an adequate basis for believing that [the documents] would shed light upon government misconduct.'" Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs., 903 F.Supp.2d 59, 67 (D.D.C. 2012) (second alteration in original) (quoting Judicial Watch of Florida, Inc. v. U.S. Dep 't of Justice, 102 F.Supp.2d 6, 15 (D.D.C. 2000)).


         A. Government ...

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