United States District Court, District of Columbia
L. FRIEDRICH UNITED STATES DISTRICT JUDGE
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.
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.
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.
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.
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).
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.
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.
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.
addressing the merits of the parties' arguments, the
Court summarizes the two Brinkmann declarations.
The Brinkmann Declarations
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.” Id.
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 ...