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

United States District Court, District of Columbia

October 1, 2018




         Hillary Clinton's use of a private email server while she was Secretary of State has spawned a rash of Freedom of Information Act (FOIA) lawsuits, including this one. One of the lawsuits, Leopold v. U.S. Department of State, Civil Case No. 15-123 (Contreras, J.), led to the release of an email in which then-Secretary Clinton seemingly directed her deputy chief of staff Jake Sullivan to strip the headings from a classified document and send it over an unsecure fax machine.

         This suit asks for emails about that email. When the Clinton-Sullivan exchange was released in 2016, it precipitated a firestorm of media and Congressional inquiries. Those inquiries themselves prompted a flurry of documents between State Department officials planning and executing a public response. At a daily briefing the day after its release, Department spokesperson John Kirby said, "We did do some forensics on [the Clinton-Sullivan email exchange] and found no evidence it was actually emailed to her." A few months later, Judicial Watch filed this lawsuit to enforce its FOIA requests for records relating to the Clinton-Sullivan exchange and for the factual basis of Kirby's statement.

         Long after the spotlight moved to fresher intrigue, lawyers remain. The dispute has narrowed to nineteen documents that show State Department officials in the throes of responding to inquiries about the email. State seeks to partially withhold these documents under FOIA's Exemption 5, which incorporates the attorney-client and deliberative process privileges. At least, Judicial Watch argues State applied the privileges too broadly. At most, Judicial Watch contends the deliberative process privilege should not apply at all, arguing it cannot shield government misconduct. On July 24, 2018, the Court ordered [27] State to provide unredacted copies of the documents for review ex parte to determine whether State properly invoked the privileges.

         Based on its review, the Court agrees with State in part and disagrees in part. After reviewing the relevant legal standards, this opinion summarizes each document and applies the appropriate rule. The opinion concludes by granting Judicial Watch's cross-motion for summary judgment [18] for ten documents, [1] granting State's cross-motion for summary judgment [17] for the remaining nine, [2] and denying the balance of both motions.

         I. Legal Standards

         A. Exemption 5

         FOIA provides a judicially enforceable right of access to federal agency records, unless the records are protected from disclosure by one of nine exemptions or three special law enforcement exclusions. See 5 U.S.C. § 552. Exemption 5, § 552(b)(5), allows government agencies to withhold documents "normally privileged in the civil discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). According to the D.C. Circuit, Exemption 5 "unequivocally" incorporates "all civil discovery rules," including the attorney-client and deliberative process privileges. Martin v. Office of Special Counsel, Merit Sys. Protection Bd, 819 F.2d 1181, 1185 (D.C. Cir. 1987). When an agency seeks to invoke a privilege, it must present sufficient facts-either in its Vaughn index or, during ex parte review, on the document's face-establishing the privilege applies. See Bartholdi Cable Co. v. F.C.C., 114 F.3d 274, 280 (D.C. Cir. 1997). And where application of a privilege is unclear, it "must 'be construed as narrowly as consistent with efficient Government operation.'" Mapother v. Dep't of Justice, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (quoting Wolfe v. Dep 't of Health & Human Servs., 839 F.2d 768, 773-74 (D.C. Cir. 1988) (en banc)).

         1. Attorney-Client Privilege

         The attorney-client privilege protects "confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice." Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977). In government agencies, an attorney-client relationship is inferred when the agency "deal[s] with its attorneys as would any private party seeking advice to protect personal interests." Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 863 (D.C. Cir. 1980).

         2. Deliberative Process Privilege

         The deliberative process privilege promotes and protects candor in governmental decisionmaking. Mapother, 3 F.3d at 1537. It allows agencies to withhold communications that are both predecisional and deliberative. Id.

         Communication is predecisional when "antecedent to the adoption of an agency policy." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 513 (D.C. Cir. 2011) (internal quotation marks omitted) (quoting Jordan v. U.S. Dep 't of Justice, 591 F.2d 753, 774 (D.C. Cir. 1978) (en banc)). Whether a communication is antecedent turns on the role it plays in the decisionmaking process. For instance, a recommendation from someone lacking legal or practical authority is predecisional since the final decisionmaker can decline to adopt it. See Access Reports v. Dep't of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991). Relatedly, an ex post communication by a subordinate explaining a superior's prior decision may still be predecisional if it discusses recommendations not expressly adopted. See Sears, 421 U.S. at 151-53.

         Communication is deliberative when it reflects the "give-and-take" of decisionmaking. Coastal States, 617 F.2d at 866. This means the privilege "covers recommendations, draft documents, proposals, suggestions, and other subjective documents" conveying the author's judgment. Id.

         Though the Court of Appeals has never addressed applying the deliberative process privilege to public-relations issues, numerous district court opinions hold deliberations over "how to respond to media inquiries" are protected when "generated as part of a continuous process of agency decision making." Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec, 736 F.Supp.2d 202, 208-09 (D.D.C. 2010).

         Talking points have been characterized as "inescapably]" part of that process, since by their nature they are "rarely the final decision about what the [speaker] will say":

[A speaker] may elect to use all, some, or none of the talking points .... And even when [speakers] do follow their talking points, they often do not recite the points word-for-word.... The final decision [i]s what [the speaker] actually said to the media, which is, of course, already a matter of public record.... A government employee drafting talking points ... needs to know that her advice will remain privileged regardless of whether the [speaker] ultimately sticks to the script or decides to extemporize. It is accordingly of no moment [whether the speaker] ultimately "stuck to the talking points"-the point is that she might not have.... Moreover, sticking to talking points often does not entail a verbatim recitation, leaving open the possibility that "a simple comparison" of the talking points with the official's public remarks would reveal the agency's deliberations.

Am. Ctr. for Law & Justice v. U.S. Dep't of Justice, No. 16-2188, 2018 WL 4283561, at *6-8 (D.D.C. Sept. 7, 2018) (quoting Mapother, 3. F.3d at 1538).

         But this discussion proves too much. Extending it to its logical limits means any prepared remarks-even the State of the Union-could be withheld under the deliberative process privilege, since a speaker could always go off-script, extemporally exposing the final stage of a deliberative process. And although no one needs FOIA to obtain the State of the Union (numerous videos and transcripts are available), government officials give hundreds of speeches every day, all of which are important, though many elude recording or transcription. So stretching the deliberative process privilege would put many important public statements outside FOIA's grasp, even well after the statements were made.

         The talking points considered by the American Center for Law & Justice court further distinguish its result. Those talking points were not ordinary talking points prepared for an ordinary spokesperson in an ordinary press briefing. The talking points were drafted by Department of Justice aides for use by then-Attorney General Loretta Lynch in press appearances to defend her widely panned tarmac meeting with former-President Bill Clinton during the 2016 presidential campaign. Because the talking points were prepared by a subordinate staffer, General Lynch could override them at any point, a fact the opinion recognized. Id. Put another way, the talking points at issue were effectively "advice from subordinates," not the final word on the Department's public position. Id. The opinion acknowledged an alternate style of talking points-those "representing] the agency's [final] decision about what to say"-might induce a different result. Id.

         Other cases echo that limitation by emphasizing that the deliberative process privilege applies to "records preceding] the finalization of the [agency]'s media response" reflecting the "give-and-take" leading to a consensus on the agency's public position. Cause of Action v. IRS, 125 F.Supp.3d 145, 160 (D.D.C. 2015) (emphasis added); see also Judicial Watch, Inc. v. U.S. Dep't of Commerce, 337 F.Supp.2d 146, 174 (D.D.C. 2004) (holding the deliberative process privilege properly protected talking points "prepared by [agency] employees for the consideration of [agency] decision-makers"). And not least, this treatment comports with the Court of Appeals's command to construe Exemption 5 privileges as narrowly as possible. See Mapother, 3 F.3d at 1537.

         i. The Government Conduct Exception to the Deliberative Process Privilege

          "[W]here there is reason to believe" documents withheld under the deliberative process privilege "may shed light on government misconduct," courts can decline to recognize the privilege, since "shielding internal government deliberations in this context does not serve 'the public's interest in honest, effective government.'" In re Sealed Case, 121 F.3d 729, 738 (D.C. Cir. 1997) (quoting Texaco P.R., Inc. v. Dep 't of Consumer Affairs, 60 F.3d 867, 885 (1st Cir. 1995)).

         This exception is well established in civil discovery. See, e.g., Hinckley v. United States, 140 F.3d 277, 285 (D.C. Cir. 1998). The Court of Appeals, however, has never decided whether the exception abrogates the privilege in FOIA litigation, and lower courts have divided. Compare, e.g., Judicial Watch, Inc. v. U.S. Dep't of State, 241 F.Supp.3d 174, 182-83 (D.D.C. 2017) (Berman Jackson, J.) (holding the government conduct exception does not apply to FOIA cases), with, e.g., Nat'l Whistleblower Ctr. v. Dep't of Health & Human Servs., 903 F.Supp.2d 59, 66 (D.D.C. 2012) (Boasberg, J.) (suggesting the government conduct exception applies to FOIA cases).

         II. ...

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