Judicial Watch, Inc. v. United States Dep't of State

• Decision Date: 03 August 2021
• Docket Number: Civil Action 15-687 (JEB)
• Parties: JUDICAL WATCH, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant.
• Court: U.S. District Court — District of Columbia

JUDICAL WATCH, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF STATE, Defendant.

Civil Action No. 15-687 (JEB)

United States District Court, District of Columbia

August 3, 2021

MEMORANDUM OPINION

JAMES E. BOASBERG United States District Judge.

The media spotlight on the search for former Secretary of State Hillary Clinton's emails has long since faded. Indeed the D.C. Circuit concluded last year that “the State Department has exhausted every reasonable means to retrieve all of Secretary Clinton's recoverable emails” and that further inquiries were unlikely to “squeeze water out of the rock.” In re Clinton, 970 F.3d 357, 368 (D.C. Cir.), on reh'g, 973 F.3d 106 (D.C. Cir. 2020). Yet on marches Plaintiff Judicial Watch. In this long-standing Freedom of Information Act suit, it continues to challenge the adequacy of State's search and its withholding of a subset of responsive records under one of FOIA's nine exemptions.

The Court now grants summary judgment for Defendant, holding that both its search and its withholdings were appropriate. It is long past time to close the book on this case.

I. Background

On March 4, 2015, Plaintiff filed a FOIA request seeking from Defendant “[a]ny and all emails sent or received by former Secretary of State Hillary Rodham Clinton in her official capacity as Secretary of State during her tenure as Secretary of State. The timeframe for this request is February 2, 2009 to January 31, 2013.” ECF No. 69-2 (Declaration of Eric F. Stein), Exh. 2 (3/4/15 FOIA Request) at 1. In response, between May 2015 and February 2020, State processed more than 30, 000 responsive records. See Stein Decl., ¶ 6. These included copies of emails that Clinton had shared with the Department in 2014, id., ¶ 9, documents provided to it by the FBI from the Bureau's 2016 investigation into whether Clinton had mishandled classified information through use of her private email system, id., ¶ 11, and potentially responsive records that the FBI identified in three subsequent instances and provided to State. Id., ¶¶ 13-17. Because the Government's exhaustive efforts to locate responsive documents will be discussed at length below, further details need not detain us here.

As the case progressed, the parties narrowed the issues before the Court, see ECF No. 691 (Def. MSJ) at 2, and after production of records in part and in full, Plaintiff's challenge was limited to the adequacy of the search and the withholding of documents under FOIA Exemptions 1, 5, and 7(E). Id. at 1. The exemptions at issue were further focused in the summary-judgment briefing such that the only one remaining is the deliberative-process privilege of Exemption 5. See Def. Reply at 1; see also 5 U.S.C.§ 552(b)(5).

This case, it is worth noting, is hardly the only one this Court has handled concerning the Clinton emails, and that other litigation helps to inform the current ruling. In particular the parties have tussled over whether efforts by the State Department and the National Archives and Records Administration to gather emails from Clinton's private email servers satisfied the Federal Records Act (FRA) or if a referral to the Attorney General for an enforcement action was needed. See Judicial Watch, Inc. v. Kerry, 156 F.Supp.3d 69, 76 (D.D.C. 2016), rev'd and remanded sub nom. Judicial Watch, Inc. v. Kerry, 844 F.3d 952 (D.C. Cir. 2016); after remand, Judicial Watch, Inc. v. Tillerson, 293 F.Supp.3d 33, 41 (D.D.C. 2017), affd sub nom. Judicial Watch, Inc. v. Pompeo, 744 Fed.Appx. 3 (D.C. Cir. 2018). This Court initially held that Plaintiff's claims that a referral was required were moot “given the steps the government has taken to recover the emails.” Kerry, 156 F.Supp.3d at 71. The D.C. Circuit reversed, holding that “the agency could [not] simply ignore its referral duty” if the agency's “initial efforts failed to recover all the missing records (or establish their fatal loss).” Kerry, 844 F.3d at 956. On remand, this Court found that the Government had “exhausted all imaginable investigative avenues . . . to obtain any missing emails.” Tillerson, 293 F.Supp.3d at 41. The D.C. Circuit affirmed, holding that a referral to the Attorney General would be pointless since “the findings of the District Court make it absolutely clear this case is moot.” Pompeo, 744 Fed.Appx. at 5 (citation and internal quotation marks omitted).

II. Legal Standard

Summary judgment must be granted if “the movant shows 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it can affect the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Liberty Lobby, 477 U.S. at 248; see also Scott v. Harris, 550 U.S. 372, 380 (2007); Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Such affidavits or declarations “are accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (citation and internal quotation marks omitted). “Unlike the review of other agency action that must be upheld if supported by substantial evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to sustain its action' and directs the district courts to ‘determine the matter de novo.'” Dep't of Justice v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)). Summary judgment is only proper when the court is assured that the record justifies the result. See Ctr. For Investigative Reporting v. U.S. Customs & Border Prot., 436 F.Supp.3d 90, 100 (D.D.C. 2019).

III. Analysis

Congress enacted FOIA “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). “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152 (1989) (citation omitted).

To further that purpose, the statute provides that “each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules[, ] . . . shall make the records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). The Government need not, however, turn over requested information that falls into one of nine statutorily created exemptions from FOIA's broad directive. Id. § 552(b)(1)-(9). “Those exemptions are as much a part of FOIA's purposes and policies as the statute's disclosure requirement.” Food Mktg. Inst. v. Argus Leader Media, 139 S.Ct. 2356, 2366 (2019) (cleaned up) (quoting Encino Motorcars, LLC v. Navarro, 138 S.Ct. 1134, 1142 (2018)). Where an agency withholds records, it must show that at least one of the exemptions applies. See Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975). To carry that burden, the Government “must provide a relatively detailed justification” for its withholding, “specifically identifying the reasons why a particular exemption is relevant.” Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (quoting King v. Dep't of Justice, 830 F.2d 210, 219 (D.C. Cir. 1987)). This Court can compel the release of any records that do not satisfy the requirements of at least one exemption. See Reps. Comm., 489 U.S. at 755.

In this case, two FOIA questions are at issue: 1) whether Defendant's search for the requested records was adequate; and 2) whether it appropriately withheld 246 documents in whole and in part under Exemption 5. See ECF No. 73 (Pl. Opp. & MSJ) at 3, 9; see also ECF No. 76 (Def. Reply). The Court will address each of these in turn.

A. Adequacy of Search

An agency “fulfills its [search] obligations . . . if it can demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all relevant documents.'” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C. Cir. 1990)). Thus, “[i]n a FOIA case, a district court is not tasked with uncovering ‘whether there might exist any other documents possibly responsive to...