Judicial Watch, Inc. v. U.S. Dep't of State

• Decision Date: 29 March 2018
• Docket Number: Civil Action No.: 15–688 (RC)
• Citation: 306 F.Supp.3d 97
• Court: U.S. District Court — District of Columbia
• Parties: JUDICIAL WATCH, INC., Plaintiff, v. U.S. DEPARTMENT OF STATE, Defendant.

306 F.Supp.3d 97

JUDICIAL WATCH, INC., Plaintiff,

v.U.S. DEPARTMENT OF STATE, Defendant.

Civil Action No.: 15–688 (RC)

United States District Court, District of Columbia.

Signed March 29, 2018

Chris Fedeli, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Daniel Riess, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

GRANTING DEFENDANT'S RENEWED MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S RENEWED CROSS–MOTION FOR SUMMARY JUDGMENT

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Neither Plaintiff Judicial Watch nor Defendant U.S. Department of State ("State") is a stranger to litigation regarding whether emails authored by Hillary Clinton and her associates during her tenure as Secretary of State are subject to disclosure under the Freedom of Information Act ("FOIA").¹ This case, now before the Court on renewed cross-motions for summary judgment, presents a different twist on that familiar theme: Judicial Watch seeks documents that address potential conflicts of interest between State and The William J. Clinton Foundation, including six records generated in the course of preparing not-yet-Secretary Clinton and a prospective State Department Legal Adviser for their respective Senate confirmation hearings. Citing the deliberative process privilege, State refuses to disclose the records. As explained below, the Court concludes that all six disputed documents are properly withheld under FOIA Exemption 5. Accordingly, the Court grants State's renewed motion for summary judgment and denies Judicial Watch's motion for the same.²

II. FACTUAL BACKGROUND

In March 2015, Judicial Watch submitted a FOIA request to State, seeking "[a]ny and all records that identify the policies and/or procedures in place to ensure that former Secretary of State Hillary Rodham Clinton's personal or charitable financial relationships with foreign leaders, foreign governments, and business entities posed no conflict of interest to her role as Secretary of State." Compl. ¶ 5, ECF No. 1. Judicial Watch also requested "[a]ny and all records concerning, regarding, or related to State Department review of donations to the Clinton Foundation for potential conflicts of interest with former Secretary Clinton's role as Secretary of State." Compl. ¶ 5. Plaintiff confined its request to records generated between January 1, 2009 and January 31, 2013. Compl. ¶ 5. Finding State's response to the requests inadequate in several respects, Judicial Watch filed the present lawsuit. With Judicial Watch's suit pending, State announced that it had completed its records search and that its search had yielded sixteen responsive documents. See Decl. of Eric F. Stein ("First Stein Decl.") ¶ 6, ECF No. 28–2. Of the sixteen documents, State released six documents but withheld—in part or in full—the other ten documents. First Stein Decl. ¶ 6.

Six of the withheld records had been originally generated by non-State employees in the course of preparing Clinton—at the time, nominee for Secretary of State—and prospective State Department Legal Adviser Harold Hongju Koh for their respective Senate confirmation hearings. See First Stein Decl. ¶¶ 34, 36, 43. Document C05867882 in an undated two-page draft letter from not-yet-Secretary Clinton to Deputy Legal Adviser and Designated Agency Ethics Official James Thessin regarding the Secretary's "ethics undertakings," if she were to be confirmed as Secretary of State. See Third Decl. of Eric F. Stein ("Third Stein Decl.") ¶ 4, ECF No. 41–2. A final version of that document was released to Judicial Watch. Third Stein Decl. ¶ 4. Document C05892232 is a five-page email exchange from Clinton's Deputy Chief of Staff Jacob Sullivan to Assistant Secretary of State for Legislative Affairs Richard Verma, dated April 20, 2009, forwarding a January 13, 2009, message from Cheryl Mills to Clinton that contains proposed talking points for addressing ethical considerations in Clinton's Senate confirmation hearing. Third Stein Decl. ¶ 5. The contents of the underlying message had been forwarded to Verma for consideration for use in preparation for another nominated individual's Senate confirmation hearing for a Department position. First Stein Decl. ¶ 36. Document C05892233 is a five-page email exchange from Sullivan to Verma, dated April 20, 2009, forwarding a January 12, 2009 message from Sullivan to Clinton's Senior Advisor Philippe I. Reines. Third Stein Decl. ¶ 6. The underlying message circulated for comments proposed talking points for addressing the ethical considerations that are contained in Document C05892232. Third Stein Decl. ¶ 6. The message was forwarded to Verma for consideration for use in preparing for another nominated individual's confirmation hearing for a State position. First Stein Decl. ¶ 37. Document C05892234 is an undated four-page document that contains a revised version of proposed talking points for addressing ethical considerations that are contained in documents C05892232 and C05892233. Third Stein Decl. ¶ 7. Document C05892235 is an eight-page document dated January 12, 2009, which contains nine questions for the record from former Senator Russ Feingold for Clinton relating to her confirmation hearing as Secretary of State and Clinton's proposed responses to the questions. Third Stein Decl. ¶ 8. Finally, Document C05892237 is an undated sixty-five page document that contains forty pre-hearing questions submitted by Senator Richard Lugar for Legal Advisor–Designate Koh and Koh's proposed responses. Third Stein Decl. ¶ 9.

In mid–2016, the parties each moved for summary judgment. See Def.'s Mot. Summ. J., ECF No. 28; Pl.'s Cross–Mot. Summ. J., ECF No. 29. The original round of summary judgment briefing raised questions about the adequacy of State's search; the propriety of State's decision to withhold under FOIA Exemption 5 records that were generated in preparing the nominees for their confirmation hearings; whether certain disputed documents included reasonably segregable factual information that is subject to release; and whether State had properly withheld under FOIA Exemption 6 private email addresses contained in responsive documents.

First, the Court concluded that State had conducted a search that was, in most respects, adequate. Judicial Watch, Inc. v. U.S. Dep't of State ("Judicial Watch I "), No. 15-cv-688, 2017 WL 456417, at *5–8 (D.D.C. Feb. 2, 2017). However, the Court ordered State to search records turned over by Huma Abedin, a key official who was simultaneously involved in Clinton Foundation and State Department business. Id. at *8.

Next, the Court addressed State's withholdings. With respect to State's invocation of FOIA Exemption 5's deliberative process privilege to shield six records developed in preparation for the confirmation hearings, the Court found that State had not adequately tackled in its submissions whether the documents related to any State Department policies and goals. Id. at *10. The Court questioned "whether the issues a prospective official is facing in her pursuit of public office fall within the gamut of an agency's policies such that deliberation of them is shielded by Exemption 5." Id. (emphasis in original). Accordingly, the Court denied both parties' motions for summary judgment, but permitted the parties to renew their motions. Id. The Court asked that the parties' renewed motions more fully brief the issue of State's policy interests in such matters and that, if warranted, the briefing should supplement the factual record with context that might assist the Court in assessing whether any FOIA exemptions apply. Id.

Regarding the purported segregablility of factual information in the challenged documents, the Court agreed with Judicial Watch that certain information was subject to release. Id. Finally, addressing the parties' dispute about whether State had properly withheld email addresses, the Court explained that while individuals have substantial privacy interests that militate against disclosure of their full email addresses, the domain extensions of private email addresses do not trigger considerable privacy interests. Id. at *11. Accordingly, the Court ordered State to release "email domain extensions that, based on previous releases, could not be used to infer the full email addresses." Id.

Since the Court issued its prior Opinion, State has conducted a search of Ms. Abedin's records and has produced responsive documents to Judicial Watch's satisfaction. Mem. Supp. Def.'s Renewed Motion Summ. J. ("Def.'s Renewed MSJ") at 3 n.5, ECF No. 41–1; Pl.'s Mem. L. Opp'n Def.'s Renewed Mot. Summ. J. & Supp. Pl.'s Second Cross–Mot. Summ. J. ("Pl.'s Renewed MSJ") at 1, ECF No. 42–1. A live controversy remains, however, regarding the six documents—marked C05867882, C05892232, C05892233, C05892234, C05892235, and C05892237—that relate to the Clinton and Koh Senate confirmation hearings. State renews its claim that these documents are properly shielded by FOIA Exemption 5. See Def.'s Renewed MSJ at 4–8. Unsurprisingly, Judicial Watch again disputes that contention. See Pl.'s Renewed MSJ at 3–6. In addition, State asserts that it has determined that none of the redacted email domain extensions can be released because, based on State's prior releases, this information could be used to infer the full email addresses, compromising the privacy of the individuals to whom the email addresses belong. See Def.'s Renewed MSJ at 8–10. Judicial Watch initially objected to State's withholding of the email domain extensions, but it has since abandoned any challenge to State's refusal to release this information. See Pl.'s Reply Supp. Second Cross–Mot. Summ. J. ("Pl.'s Reply") at 2, ECF No. 46. Having inspected the disputed documents in camera , the Court takes up the parties' renewed cross-motions.

III. LEGAL STANDARD

FOIA "sets forth a policy of broad disclosure of Government documents in order ‘to ensure an informed citizenry, vital to the functioning...