United States District Court, District of Columbia
Document 41, 42
MEMORANDUM OPINION GRANTING DEFENDANT'S RENEWED
MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S RENEWED
CROSS-MOTION FOR SUMMARY JUDGMENT
RUDOLPH CONTRERAS, United States District Judge.
Plaintiff Judicial Watch nor Defendant U.S. Department of
State (“State”) is a stranger to litigation
regarding whether emails authored by Hillary Clinton and her
associates during her tenure as Secretary of State are
subject to disclosure under the Freedom of Information Act
(“FOIA”). This case, now before the Court on renewed
cross-motions for summary judgment, presents a different
twist on that familiar theme: Judicial Watch seeks documents
that address potential conflicts of interest between State
and The William J. Clinton Foundation, including six records
generated in the course of preparing not-yet-Secretary
Clinton and a prospective State Department Legal Adviser for
their respective Senate confirmation hearings. Citing the
deliberative process privilege, State refuses to disclose the
records. As explained below, the Court concludes that all six
disputed documents are properly withheld under FOIA Exemption
5. Accordingly, the Court grants State's renewed motion
for summary judgment and denies Judicial Watch's motion
for the same.
March 2015, Judicial Watch submitted a FOIA request to State,
seeking “[a]ny and all records that identify the
policies and/or procedures in place to ensure that former
Secretary of State Hillary Rodham Clinton's personal or
charitable financial relationships with foreign leaders,
foreign governments, and business entities posed no conflict
of interest to her role as Secretary of State.” Compl.
¶ 5, ECF No. 1. Judicial Watch also requested
“[a]ny and all records concerning, regarding, or
related to State Department review of donations to the
Clinton Foundation for potential conflicts of interest with
former Secretary Clinton's role as Secretary of
State.” Compl. ¶ 5. Plaintiff confined its request
to records generated between January 1, 2009 and January 31,
2013. Compl. ¶ 5. Finding State's response to the
requests inadequate in several respects, Judicial Watch filed
the present lawsuit. With Judicial Watch's suit pending,
State announced that it had completed its records search and
that its search had yielded sixteen responsive documents.
See Decl. of Eric F. Stein (“First Stein
Decl.”) ¶ 6, ECF No. 28-2. Of the sixteen
documents, State released six documents but withheld-in part
or in full-the other ten documents. First Stein Decl. ¶
the withheld records had been originally generated by
non-State employees in the course of preparing Clinton-at the
time, nominee for Secretary of State-and prospective State
Department Legal Adviser Harold Hongju Koh for their
respective Senate confirmation hearings. See First
Stein Decl. ¶¶ 34, 36, 43. Document C05867882 in an
undated two-page draft letter from not-yet-Secretary Clinton
to Deputy Legal Adviser and Designated Agency Ethics Official
James Thessin regarding the Secretary's “ethics
undertakings, ” if she were to be confirmed as
Secretary of State. See Third Decl. of Eric F. Stein
(“Third Stein Decl.”) ¶ 4, ECF No. 41-2. A
final version of that document was released to Judicial
Watch. Third Stein Decl. ¶ 4. Document C05892232 is a
five-page email exchange from Clinton's Deputy Chief of
Staff Jacob Sullivan to Assistant Secretary of State for
Legislative Affairs Richard Verma, dated April 20, 2009,
forwarding a January 13, 2009, message from Cheryl Mills to
Clinton that contains proposed talking points for addressing
ethical considerations in Clinton's Senate confirmation
hearing. Third Stein Decl. ¶ 5. The contents of the
underlying message had been forwarded to Verma for
consideration for use in preparation for another nominated
individual's Senate confirmation hearing for a Department
position. First Stein Decl. ¶ 36. Document C05892233 is
a five-page email exchange from Sullivan to Verma, dated
April 20, 2009, forwarding a January 12, 2009 message from
Sullivan to Clinton's Senior Advisor Philippe I. Reines.
Third Stein Decl. ¶ 6. The underlying message circulated
for comments proposed talking points for addressing the
ethical considerations that are contained in Document
C05892232. Third Stein Decl. ¶ 6. The message was
forwarded to Verma for consideration for use in preparing for
another nominated individual's confirmation hearing for a
State position. First Stein Decl. ¶ 37. Document
C05892234 is an undated four-page document that contains a
revised version of proposed talking points for addressing
ethical considerations that are contained in documents
C05892232 and C05892233. Third Stein Decl. ¶ 7. Document
C05892235 is an eight-page document dated January 12, 2009,
which contains nine questions for the record from former
Senator Russ Feingold for Clinton relating to her
confirmation hearing as Secretary of State and Clinton's
proposed responses to the questions. Third Stein Decl. ¶
8. Finally, Document C05892237 is an undated sixty-five page
document that contains forty pre-hearing questions submitted
by Senator Richard Lugar for Legal Advisor-Designate Koh and
Koh's proposed responses. Third Stein Decl. ¶ 9.
mid-2016, the parties each moved for summary judgment.
See Def.'s Mot. Summ. J., ECF No. 28; Pl.'s
Cross-Mot. Summ. J., ECF No. 29. The original round of
summary judgment briefing raised questions about the adequacy
of State's search; the propriety of State's decision
to withhold under FOIA Exemption 5 records that were
generated in preparing the nominees for their confirmation
hearings; whether certain disputed documents included
reasonably segregable factual information that is subject to
release; and whether State had properly withheld under FOIA
Exemption 6 private email addresses contained in responsive
the Court concluded that State had conducted a search that
was, in most respects, adequate. Judicial Watch, Inc. v.
U.S. Dep't of State (“Judicial Watch
I”), No. 15-cv-688, 2017 WL 456417, at *5-8
(D.D.C. Feb. 2, 2017). However, the Court ordered State to
search records turned over by Huma Abedin, a key official who
was simultaneously involved in Clinton Foundation and State
Department business. Id. at *8.
the Court addressed State's withholdings. With respect to
State's invocation of FOIA Exemption 5's deliberative
process privilege to shield six records developed in
preparation for the confirmation hearings, the Court found
that State had not adequately tackled in its submissions
whether the documents related to any State Department
policies and goals. Id. at *10. The Court questioned
“whether the issues a prospective official is facing in
her pursuit of public office fall within the gamut of an
agency's policies such that deliberation of them
is shielded by Exemption 5.” Id. (emphasis in
original). Accordingly, the Court denied both parties'
motions for summary judgment, but permitted the parties to
renew their motions. Id. The Court asked that the
parties' renewed motions more fully brief the issue of
State's policy interests in such matters and that, if
warranted, the briefing should supplement the factual record
with context that might assist the Court in assessing whether
any FOIA exemptions apply. Id.
the purported segregablility of factual information in the
challenged documents, the Court agreed with Judicial Watch
that certain information was subject to release. Id.
Finally, addressing the parties' dispute about whether
State had properly withheld email addresses, the Court
explained that while individuals have substantial privacy
interests that militate against disclosure of their full
email addresses, the domain extensions of private email
addresses do not trigger considerable privacy interests.
Id. at *11. Accordingly, the Court ordered State to
release “email domain extensions that, based on
previous releases, could not be used to infer the full email
the Court issued its prior Opinion, State has conducted a
search of Ms. Abedin's records and has produced
responsive documents to Judicial Watch's satisfaction.
Mem. Supp. Def.'s Renewed Motion Summ. J.
(“Def.'s Renewed MSJ”) at 3 n.5, ECF No.
41-1; Pl.'s Mem. L. Opp'n Def.'s Renewed Mot.
Summ. J. & Supp. Pl.'s Second Cross-Mot. Summ. J.
(“Pl.'s Renewed MSJ”) at 1, ECF No. 42-1. A
live controversy remains, however, regarding the six
documents-marked C05867882, C05892232, C05892233, C05892234,
C05892235, and C05892237-that relate to the Clinton and Koh
Senate confirmation hearings. State renews its claim that
these documents are properly shielded by FOIA Exemption 5.
See Def.'s Renewed MSJ at 4-8. Unsurprisingly,
Judicial Watch again disputes that contention. See
Pl.'s Renewed MSJ at 3-6. In addition, State asserts that
it has determined that none of the redacted email domain
extensions can be released because, based on State's
prior releases, this information could be used to infer the
full email addresses, compromising the privacy of the
individuals to whom the email addresses belong. See
Def.'s Renewed MSJ at 8-10. Judicial Watch initially
objected to State's withholding of the email domain
extensions, but it has since abandoned any challenge to
State's refusal to release this information. See
Pl.'s Reply Supp. Second Cross-Mot. Summ. J.
(“Pl.'s Reply”) at 2, ECF No. 46. Having
inspected the disputed documents in camera, the
Court takes up the parties' renewed cross-motions.
“sets forth a policy of broad disclosure of Government
documents in order ‘to ensure an informed citizenry,
vital to the functioning of a democratic society.'”
FBI v. Abramson, 456 U.S. 615, 621 (1982) (quoting
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978)); see also Judicial Watch v. U.S. Dep't of
Defense, 847 F.3d 735, 738 (D.C. Cir. 2017)
(“Congress enacted FOIA to given the public
‘access to official information long shielded
unnecessarily from public view.'”). The Act
mandates release of properly requested federal agency
records, unless the materials fall squarely within one of
nine statutory exemptions. Milner v. Dep't of
Navy, 562 U.S. 562, 565 (2011); Students Against
Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.
Cir. 2011) (citing 5 U.S.C. § 552(a)(3)(A), (b)).
cases typically and appropriately are decided on motions for
summary judgment.” Defenders of Wildlife v. U.S.
Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009)
(citing Bigwood v. U.S. Agency for Int'l Dev.,
484 F.Supp.2d 68, 73 (D.D.C. 2007)). The agency is entitled
to summary judgment if no material facts are genuinely in
dispute and the agency demonstrates “that its search
for responsive records was adequate, that any exemptions
claimed actually apply, and that any reasonably segregable
non-exempt parts of records have been disclosed after
redaction of exempt information.” Competitive
Enter. Instit. v. EPA, 232 F.Supp.3d 172, 181 (D.D.C.
2017). “This burden does not shift even when the
requester files a cross-motion for summary judgment because
‘the Government ultimately has the onus of proving that
the documents are exempt from disclosure, ' while the
‘burden upon the requester is merely to establish the
absence of material factual issues before a summary
disposition of the case could permissibly occur.'”
Hardy v. ATF, 243 F.Supp.3d 155, 162 (D.D.C. 2017)
(brackets omitted) (quoting Pub. Citizen Health Research
Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999)).
carry its burden, the agency must provide “a relatively
detailed justification, specifically identifying the reasons
why a particular exemption is relevant and correlating those
claims with the particular part of the withheld document to
which they apply.” Elec. Privacy Info. Ctr. v. U.S.
Drug Enf't Agency, 192 F.Supp.3d 92, 103 (D.D.C.
2016) (quoting Mead Data Cent., Inc. v. U.S. Dep't of
Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)). In
conducting its review, a court may also rely on its own
in camera examination of disputed documents to
determine whether they were properly withheld under the
claimed statutory exemptions. See 5 U.S.C. §
552; see also, e.g., Citizens for Responsibility
& Ethics in Wash. v. Nat'l Archives & Records
Admin., 715 F.Supp.2d 134, 140-42 (D.D.C. 2010) (relying
on the Court's in camera review to resolve
whether documents had been properly withheld). A court will
endorse an agency's decision to withhold records if the
agency's justification for invoking a FOIA exemption
“appears ‘logical' or
‘plausible.'” Pinson v. U.S. Dep't of
Justice, 245 F.Supp.3d 225, 239 (D.D.C. 2017) (quoting
Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007)).
Nonetheless, “exemptions from disclosure must be
narrowly construed . . . and conclusory and generalized
allegations of exemptions are unacceptable.” Morley
v. CIA, 508 F.3d 1108, 1114- 15 (D.C. Cir. 2007)
(citation and internal quotation marks omitted).
present round of summary judgment briefing presents two
issues: (1) whether State properly invoked FOIA Exemption 5
to justify withholding six disputed records, all of which
were originally generated by non-State employees in the
course of preparing Secretary of State nominee Clinton and
Legal Adviser-Designate Koh for their respective confirmation
hearings; and (2) whether State has demonstrated that FOIA
Exemption 6 shields the domain extensions of private email
addresses that appear in responsive records. As explained
below, the Court is convinced that State has successfully
discharged its FOIA obligations and, accordingly, the Court
will enter summary judgment in State's favor.
Records Withheld Under FOIA Exemption 5
contends that it has properly withheld six disputed records
pursuant to FOIA Exemption 5's deliberative process
privilege. The Court agrees. The Court sets out the legal
standard for applying FOIA Exemption 5 to records produced or
distributed by non-agency personnel then applies that
standard to the disputed documents.
Exemption 5 protects “inter-agency or intra-agency
memorandums or letters that would not be available by law to
a party . . . in litigation with the agency.” 5 U.S.C.
§ 552(b)(5). Thus, “[t]o qualify, a document must
. . . satisfy two conditions: its sources must be a
Government agency, and it must fall within the ambit of a
privilege against discovery under judicial standards that
would govern litigation against the agency that holds
it.” Dep't of Interiorv. Klamath
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