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Brown v. Department of State

United States District Court, District of Columbia

July 12, 2018

DAVID W. BROWN, Plaintiff
v.
DEPARTMENT OF STATE, Defendant.

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

         This is a Freedom of Information Act (“FOIA”) action. Plaintiff alleges that copies of former Secretary of State Hillary Clinton's e-mails were, for a time, stored on flash drives in a safe inside the law office of her private attorney, David Kendall of Williams & Connolly, LLP. See Compl., ECF No. 1, at ¶¶ 8-10. Through this lawsuit, Plaintiff seeks from Defendant, the United States Department of State, “all records about [the] decision” to allow “David Kendall to maintain potentially classified State Department records at his [law] firm.” Id. at ¶ 12.

         After Defendant made a series of rolling productions of documents to Plaintiff, the parties filed cross-motions for summary judgment. One of the issues the parties disputed in their cross-motions was the adequacy of the State Department's search for responsive records. After Judge Amy Berman Jackson remanded a nearly identical case (James Madison Project, et al., v. Department of State, No. 15-cv-1478) back to the State Department to conduct further searches, the Court denied both parties' motions for summary judgment in this case without prejudice. See Jan. 31, 2017 Order, ECF No. 32. The Court held that because Defendant had been ordered to conduct additional searches and prepare additional declarations with respect to the FOIA request in the matter before Judge Jackson-which Defendant had treated as identical to the request in this case-it only made sense for Defendant to provide those same documents and declarations to the Plaintiff in this case as well, and for the parties to then brief summary judgment again after that had occurred. Id. at 3. After the Court's Order, Defendant made additional rolling productions to Plaintiff while the parties filed intermittent Joint Status Reports.

         The parties have now filed a Joint Status Report in which they represent that no further document productions need occur in this case, and that the Court need not issue an opinion on the adequacy of Defendant's searches. See Joint Status Report, ECF No. 38. The parties further represent that only a narrow set of disputes remain regarding the propriety of withholding of documents. Id. at 2. These disputes had already been briefed in relation to the parties' previously-denied summary judgment motions. Id. The parties ask the Court to rule on these disputes on the basis of their previously-filed briefs. Id. Both parties agree that after the Court has made these rulings, this case will be fully resolved. This Memorandum Opinion addresses the parties' remaining disputes and resolves this case.

         Upon consideration of the pleadings[1], the relevant legal authorities, and the record for purposes of this motion, the Court GRANTS summary judgment for Defendant and DENIES summary judgment for Plaintiff. The Court finds that the narrow set of withholdings still at issue in this case were all proper. This case will be DISMISSED.

         Congress enacted the Freedom of Information Act, 5 U.S.C. § 552, in order to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). 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.” Critical Mass. Energy Project v. Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992) (en banc) (citation omitted), cert. denied, 507 U.S. 984 (1993). To that end, FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for categories of material.” Milner v. Dep't of Navy, 131 S.Ct. 1259, 1261-62 (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, 131 S.Ct. at 1262 (citations omitted).

         When presented with a motion for summary judgment in this context, the district court must conduct a “de novo” review of the record, which requires the court to “ascertain whether the agency has sustained its burden of demonstrating that the documents requested . . . are exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep't of Agriculture, 515 F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden by means of affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted). “If an agency's affidavit describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency's bad faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). “Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011) (citation omitted).

         The information that Plaintiff argues Defendant has improperly withheld falls into two categories. First, Plaintiff argues that Defendant has improperly withheld information from certain documents that is already publicly-known. Second, Plaintiff argues that Defendant has improperly withheld non-privileged information from certain other documents under FOIA Exemption 5.[2]The Court rejects Plaintiff's arguments with respect to both categories of information.

         A. The Public-Domain Doctrine

         First, Plaintiff argues that the State Department improperly “withheld information from five emails-C05963262, C05963195, C05998332, C05998335, and C05963193-which was previously made public through an official and documented disclosure.” Pl.'s Mem. at 10. Plaintiff argues that this is the case because “the withheld information in these emails was sent to Williams & Connolly-a private law firm unaffiliated with the government.” Id. (emphasis in original). This argument implicates the “public-domain doctrine.” Under the “public-domain doctrine, materials normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved in a permanent public record.” Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999). This is because “where information requested ‘is truly public, . . . enforcement of an exemption cannot fulfill its purposes.'” Id. (quoting Niagara Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)). The D.C. Circuit has “noted that ‘while the logic of FOIA postulates that an exemption can serve no purpose once information . . . becomes public, [the Court] must be confident that the information sought is truly public and that the requester receive no more than what is publicly available before [the Court] find[s] a waiver.” Id. at 555. To take advantage of this doctrine, a plaintiff must “establish[ ] that the information he seeks has entered and remains in the public domain.” Davis v. U.S. Dep't of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992).

         Plaintiff has not shown that the information sought in these e-mails has become “truly public” or that it is preserved in any “permanent public record” in the public domain.[3] All Plaintiff has shown is that the State Department disclosed the information to the private attorney for the former Secretary of State at a single outside law firm. There is nothing in the record to suggest that this limited disclosure resulted in the information becoming known to anyone else, let alone the general public. In fact, the e-mails in question appear to have been sent to Mr. Kendall as part of a decision to secure information at his firm's office. Plaintiff, or any other FOIA requester, would apparently have no way to obtain this information from the public domain despite its having been provided to Mr. Kendall. The logic behind the public-domain doctrine-that FOIA exemptions serve no purpose if the information sought is already public-is simply not applicable under these circumstances. See Students Against Genocide v. Dep't of State, 257 F.3d 828, 836 (D.C. Cir. 2001) (holding that photographs “plainly d[id] not fall within” the public-domain doctrine because they “were not released to the general public, ” and only certain outside parties were allowed to see them); Judicial Watch, Inc. v. U.S. Dep't of Def., 963 F.Supp.2d 6, 16 (D.D.C. 2013) (holding that the public-domain doctrine did not apply where information had not been released to the general public, but only disclosed to a select group of filmmakers); Muslim Advocates v. U.S. Dep't of Justice, 833 F.Supp.2d 92, 100 (D.D.C. 2011) (holding that disputed documents were not “truly public, ” and therefore the public-domain doctrine did not apply, where the FBI allowed select outside groups to view the documents but did not release them to the general public).[4]

         Accordingly, Plaintiff's public-domain doctrine argument fails, and Defendant is entitled to summary judgment on the withholding of documents C05963262, C05963195, C05998332, C05998335, and C05963193.

         B. FOIA Exemption 5

         Second, Plaintiff argues that the State Department improperly invoked FOIA Exemption 5 to withhold three documents-C05946067, C05963395, and C05963377. “Exemption 5 . . . allows the government to withhold ‘inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.'” Loving v. Dep't of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(b)(5)). “Exemption 5 ‘incorporates the traditional privileges that the Government could assert in civil litigation against a private litigant'-including the presidential communications privilege, the attorney-client privilege, the work product privilege, and the ...


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