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

United States District Court, District of Columbia

September 5, 2019

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

          MEMORANDUM OPINION

          COLLEEN KOLLAR-KOTELLY, UNITED STATES DISTRICT JUDGE.

         This lawsuit arises from a Freedom of Information Act ("FOIA") request that Plaintiff Judicial Watch, Inc. made to Defendant United States Department of State in 2011. Plaintiff requested documents related to, among other things, former President Bill Clinton's speaking engagements and financial ties. When Plaintiff filed suit seeking responsive information, Defendant provided Plaintiff with non-exempt parts of responsive documents On a rolling basis over nearly four years. The parties' negotiations resulted in the release of further information. Redactions to seven of former Secretary of State Hillary Clinton's daily schedules remain at issue.

         Defendant contends that these redactions are appropriate under FOIA Exemption 5, which protects "inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Plaintiff contends this exemption does not apply and that the information is being wrongly withheld.

         Currently before the Court are Defendant's Motion for Summary Judgment and Plaintiffs Cross-Motion for Summary Judgment. Upon consideration of the briefing, [1] the relevant legal authorities, and the record as it currently stands, the Court GRANTS-in-PART and HOLDS-in- ABEYANCE-in-PART Defendant's [51] Motion for Summary Judgment and DENIES-in-PART and HOLDS-in-ABEYANCE-in-PART Plaintiffs [52] Cross-Motion for Summary Judgment. The Court concludes that, with one potential exception, the redactions are exempt from FOIA under Exemption 5 due to the presidential communications privilege. The Court shall give Defendant an opportunity to submit further information ex parte about one redaction before the Court issues a final decision as to that redaction.

         I. BACKGROUND

         On May 2, 2011, Plaintiff made a FOIA request to Defendant that sought, among other things, documents regarding former President Clinton's "speech schedule" and "personal or charitable financial relationships with foreign leaders and governments." Stmt, of Material Facts, ECF No. 51-3 ("Def.'s Stmt."), ¶¶ 1-2 (summarizing portion of request). When Defendant failed to produce responsive records, Plaintiff filed this case on May 28, 2013, in an effort to obtain them. Id. ¶ 3. Thereafter the agency made rolling productions of non-exempt material every six weeks from October 21, 2013, through August 29, 2017. Id. ¶4. The total production amounted to 1, 183 unredacted documents and portions of 1, 777 more, while Defendant withheld 17 documents in their entirety. Id. ¶ 5. Although Plaintiff has not challenged the adequacy of the search, nor the application of exemptions to most of the withheld material, Plaintiff disagrees with Defendant's efforts to withhold parts of seven documents under FOIA Exemption 5. Id. ¶¶ 6-7.

         Those documents are certain of former Secretary Hillary Clinton's daily schedules, [2] and the withholdings allegedly pertain "only to information that identifies the subject matter and attendees of sensitive meetings concerning national security matters, such as certain meetings of the National Security Council." Id. ¶¶ 7-8. Plaintiff does not know enough to say whether Defendant's limitation is true, but Plaintiff disagrees with the invocation of this exemption. Pl.'s Resp. to Def.'s Stmt, of Material Facts Not in Dispute and Stmt, of Material Facts in Supp. of Cross-Mot, for Summ. J., ECF No. 52-1 (collectively, "Pl.'s Stmt."), ¶ 8 (response to Def.'s Stmt.); id. ¶ 1 (Plaintiffs further statement of material fact).

         The parties briefed cross-motions for summary judgment. Eric F. Stein filed a declaration in support of Defendant State's withholdings. Eric F. Stein, ECF No. 51-2 ("Stein Decl.").

         The Court exercised its discretion to grant Plaintiffs request for in camera review of the contested withholdings, and held in abeyance the remainder of Plaintiff s [52] Cross-Motion for Summary Judgment as well as State's [51] Motion for Summary Judgment. July 5, 2019 Order, ECF No. 56. At the Court's instruction, State submitted the documents ex parte, and the parties responded to the Court's request for any pertinent new authority. Def.'s Notice of Delivery of Documents for in Camera Inspection, ECF No. 57; Joint Notice of Pertinent New Auth., ECF No. 58 (reporting only a case previously identified by the Court).

         Now that the Court has reviewed the withholdings in camera, the remainder of the pending motions is ripe for decision.

         II. LEGAL STANDARD

         Congress enacted FOIA to "pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976) (internal quotation marks 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." FBI v. Abramson, 456 U.S. 615, 621 (1982). To that end, FOIA "requires federal agencies to make Government records available to the public, subject to nine exemptions." Milner v. Dep't of the Navy, 562 U.S. 562, 564 (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, 562 U.S. at 565 (citations omitted) (internal quotation marks 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 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) (alteration in original). The burden is on the agency to justify its response to the plaintiffs 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 (internal quotation marks 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 ex-emption, 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). "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). Summary judgment is proper when the pleadings, the discovery materials on file, and any affidavits or declarations "show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

         III. DISCUSSION

         Because Plaintiff does not challenge the adequacy of Defendant's search for records responsive to Plaintiffs FOIA request, the sole issue before the Court is whether the redactions to seven of former ...


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