United States District Court, District of Columbia
COLLEEN KOLLAR-KOTELLY, United States District Judge
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,
Court's Order of September 21, 2017, the Court granted
Plaintiffs  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'  and  cross-motions for summary
judgment. Id. at 3.
response to the Order, Defendant has submitted under seal and
ex parte the thirteen documents requested for in
camera review,  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.
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.
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.
FOIA Exemptions in Summary Judgment Context
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).
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. §
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.