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

United States District Court, District of Columbia

August 9, 2018

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

          MEMORANDUM OPINION

          DABNEY L. FRIEDRICH UNITED STATES DISTRICT JUDGE

         Judicial Watch, Inc. challenges the United States Department of Justice's response to two Freedom of Information Act (FOIA) requests seeking email correspondence involving Peter Kadzik, the former Assistant Attorney General for Legislative Affairs. Before the Court are the Department of Justice's Motion for Summary Judgment, Dkt. 16, and Judicial Watch's Cross-Motion for Summary Judgment, Dkt. 18. For the reasons that follow, the Court will grant the Department of Justice's Motion for Summary Judgment and deny Judicial Watch's Cross-Motion for Summary Judgment.

         I. BACKGROUND

         A. Procedural History

         On November 2, 2016, CNN reported that WikiLeaks had released a hacked email sent from Peter Kadzik's personal email account to a personal email account used by John Podesta, who was then serving as the chairman of former Secretary of State Hillary Clinton's presidential campaign. Compl. ¶ 5, Dkt. 1 (citing Laura Koran, Hacked Email Appears to Show DOJ Official Tipping Clinton Campaign About Review, CNN (Nov. 2, 2016, 10:47 AM), https://www.cnn. com/2016/11/02/politics/peter-kadzik-john-podesta-wikileaks/index.html). Kadzik's May 19, 2015 email to Podesta, which was attached to an earlier filing in this case, refers to matters “concerning the State Department's review of former Secretary Clinton's emails.” Id.

         Five days after the CNN report, Judicial Watch submitted two FOIA requests to the Department of Justice's FOIA/Privacy Act Mail Referral Unit. See Def.'s Statement of Material Facts ¶ 1, Dkt. 16-1; First Brinkmann Decl. ¶ 3, Dkt. 16-3. Judicial Watch's first request sought (1) emails conducting official business that were “sent to or received by” Kadzik at his personal email account from January 1, 2016 to November 7, 2016, and (2) emails that were copied or forwarded from Kadzik's personal email account to his official government email account during the same timeframe. See Def.'s Statement of Material Facts ¶ 5. Judicial Watch's second request targeted emails that Kadzik exchanged with the following individuals from December 1, 2014 to November 7, 2016 while using either his personal email account or his official government email account: (1) “any non-government employee, ” if the email relates to Clinton's use of “non-state.gov email to conduct official government business, ” (2) John Podesta, and (3) “any official, officer, or employee” of Clinton's presidential campaign. Id. ¶ 6.

         On November 17, 2016, the Department of Justice's FOIA/Privacy Act Mail Referral Unit acknowledged Judicial Watch's FOIA requests by sending two letters notifying Judicial Watch that the requests were referred to the Office of Information Policy (OIP), an office within the Department of Justice that processes FOIA requests seeking records from the offices of the Attorney General, Deputy Attorney General, Associate Attorney General, Legal Policy, Legislative Affairs, and Public Affairs. See First Brinkmann Decl. ¶¶ 3-4. Four days later, OIP sent Judicial Watch two emails identifying the tracking numbers assigned to each FOIA request. Compl. ¶ 14. After 45 days passed without OIP producing records responsive to the requests, Judicial Watch commenced this lawsuit on January 5, 2017. See Compl. ¶¶ 17-18; First Brinkmann Decl. ¶ 7. Four months later, OIP released fifty-six pages of records responsive to Judicial Watch's FOIA requests. See First Brinkmann Decl. ¶ 22 (discussing OIP's April 28, 2017 letter providing the agency's final response to Judicial Watch's FOIA requests).

         On June 12, 2017, the Department of Justice moved for summary judgment. Def.'s Mot., Dkt. 16. In support of its motion, the Department of Justice submitted a sworn declaration by OIP Senior Counsel Vanessa R. Brinkmann, the official responsible for supervising OIP's FOIA request processing. Brinkmann's declaration describes the searches OIP conducted of Kadzik's official Department of Justice email account and the searches Kadzik conducted of his personal Gmail email account. See First Brinkmann Decl. ¶¶ 9-21.

         Judicial Watch opposed the Department of Justice's motion and filed a cross-motion for summary judgment. See Pl.'s Opp'n & Cross-Mot., Dkt. 17. Judicial Watch does not challenge OIP's searches of Kadzik's official email account but contends that the Brinkmann declaration's description of Kadzik's searches of his personal email account lacks sufficient detail to assess whether Kadzik's searches were adequate and reasonably calculated to discover the records that Judicial Watch seeks. Id. at 1-2. Judicial Watch deems the declaration defective because: (1) it does not provide sufficient evidence about how Kadzik searched for work-related emails in his personal email account; and (2) it does not explain why the same search terms were not used to search Kadzik's official Department of Justice and personal email accounts. Judicial Watch Reply at 2, Dkt. 21.

         On June 6, 2018, the Court heard argument on the parties' cross-motions for summary judgment. See Hr'g Tr., June 6, 2018, Dkt. 27. Thereafter, the Court ordered the Department of Justice to submit a supplemental declaration clarifying Kadzik's representations about his email practices and the electronic and manual searches he conducted of his personal email account. Order of June 9, 2018, Dkt. 24. In response to the Court's order, the Department of Justice filed a second declaration by Brinkmann that provides additional details. See Def.'s Resp., Dkt. 28; Second Brinkmann Decl., Dkt. 28-1. Despite this clarifying information, Judicial Watch contends that the Department of Justice has not met its burden to prove the adequacy of its searches, and Judicial Watch requests that the Court order the Department of Justice to conduct a new search of Kadzik's personal email account using the search terms identified in paragraph 13 of the first Brinkmann declaration: “Clinton” “HRC, ” “Hillary, ” “Podesta, ” “Palmieri, ” and “Fallon.” See Joint Status Report ¶¶ 14, 19, Dkt. 29.

         Before addressing the merits of the parties' arguments, the Court summarizes the two Brinkmann declarations.

         B. The Brinkmann Declarations

         The first Brinkmann declaration indicates that OIP launched a comprehensive search of Kadzik's official government email account “using a sophisticated ‘electronic search and review platform.'” Def.'s Statement of Material Facts ¶ 9 (quoting First Brinkmann Decl. ¶ 12). To identify emails responsive to Judicial Watch's first FOIA request, OIP used Kadzik's personal email address as a search term with the goal of “captur[ing] any emails between Mr. Kadzik's DOJ and Gmail email accounts, including emails copied, blind copied, or forwarded between the two accounts.” First Brinkmann Decl. ¶ 12. Staff from OIP reviewed the search results and determined that no retrieved records were responsive to Judicial Watch's FOIA request. Id. ¶ 12. OIP nonetheless produced two email chains totaling fifteen pages that Kadzik had forwarded from his personal email account to his official government email account. Id. at 5 n.2. Although neither email chain discussed official government business, OIP provided them to Judicial Watch “as a matter of discretion.”[1] Id.

         To retrieve emails responsive to Judicial Watch's second FOIA request, OIP also searched Kadzik's official government email account for the terms “Clinton, ” “HRC, ” “Hillary, ” “Podesta, ” “Palmieri, ” and “Fallon.” Def.'s Statement of Material Facts ¶¶ 13-16, Dkt. 16-1. OIP selected these search terms based on Kadzik's representation that any communications he exchanged with Clinton's campaign employees “would have been limited to John Podesta, Jennifer Palmieri, or Brian Fallon.” Id. ¶ 15 (quoting First Brinkmann Decl. ¶ 13). Using the search terms “Clinton, ” “HRC, ” and “Hillary” enabled OIP to capture any emails between Kadzik and non-government employees relating to Clinton's use of non-state.gov email to ...


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