Judicial Watch v. U.S. Dept. of Commerce, Civ.A. 95-133(RCL).

Decision Date22 December 1998
Docket NumberNo. Civ.A. 95-133(RCL).,Civ.A. 95-133(RCL).
Citation34 F.Supp.2d 28
PartiesJUDICIAL WATCH, INC., Plaintiff, v. UNITED STATES DEPARTMENT OF COMMERCE, Defendant.
CourtU.S. District Court — District of Columbia

Larry Klayman, Washington, DC, for plaintiff.

Marina Utgoff Braswell, Asst. U.S. Attorney, Bruce R. Hegyi, Asst. U.S. Attorney, William Mark Nebeker, Asst. U.s. Attorney, U.S. Attorney's Office, Washington, DC, for defendant.

MEMORANDUM OPINION

LAMBERTH, District Judge.

After four years, this case finally offers a light at the end of the tunnel. Currently before the Court is the apparently unprecedented situation in which the defendant Department of Commerce (DOC) has moved for entry of judgment against itself; the plaintiff, Judicial Watch, has vehemently opposed the motion. Unfortunately, this odd posture is not atypical of the extreme positions taken by the litigants in this case. After much deliberation and a thorough review of the extraordinary record in this case, the Court will deny the DOC's motion for entry of judgment, grant partial summary judgment, sua sponte, ordering DOC's proposed search, and allow further discovery under the rigorous supervision of a Magistrate Judge to explore the issue of unlawful destruction and removal of documents by the DOC.

I. FACTUAL AND PROCEDURAL HISTORY

The agency search and subsequent litigation arising from plaintiff's several FOIA requests have, over the past four years, led to allegations of misconduct, minor and severe, both by counsel for the government and by counsel for the plaintiff, and to numerous motions for sanctions and for the initiation of contempt proceedings. For the purposes of today's decision, the Court is primarily concerned with the illegal destruction of documents and the illegal removal of documents from DOC custody in knowing violation of the FOIA and the orders of this Court. These particular actions, however, have not occurred in a vacuum.

To understand how this FOIA litigation could have deteriorated as drastically as it has, it may be helpful to recognize that underlying plaintiff's FOIA requests is a political crusade to uncover what Judicial Watch believes to be a campaign finance scandal tenaciously concealed by the current presidential administration. Judicial Watch revealingly declares in its opposition to the DOC's motion for entry of judgment that "this case continues not only to be the primary, cutting-edge information source for the American people, it is also at the forefront of generating needed change in our political system." P.'s Opp. to Mot. to Enter Judgmt. at 56. Thus, at least in the plaintiff's eyes, the political stakes here are high. Furthermore, plaintiff counsel's fervor in the pursuit of this litigation appears to have been more than the government's attorneys could handle. The animosity, for lack of a better word, between the attorneys for the DOC and for Judicial Watch has simmered throughout this litigation, and the misconduct of counsel may be understood in part as the boiling over of a personal, as well as political, battle.

Even before this litigation was commenced, however, the DOC appears to have demonstrated a disregard for the law that cannot be explained even by the idiosyncracies of Judicial Watch's counsel. Either out of carelessness or deliberate defiance, the DOC repeatedly and grossly mishandled materials responsive to Judicial Watch's FOIA requests. Whether the agency had political motivations for its misconduct is a question largely irrelevant to this Court's task today.

The DOC has moved the Court to enter judgment in favor of Judicial Watch, essentially conceding that the search it performed in response to the plaintiff's FOIA requests was unreasonable and unlawful. Almost ironically, the DOC's motion must be denied, not because the evidence fails to establish that the government's conduct was unreasonable, but because the record of misconduct in this case is so egregious and so extensive that merely granting the DOC's motion and ordering a new search would fail to hold the agency fully accountable for the serious violations that it appears to have deliberately committed.

Although a full account of the DOC's misconduct in this case will likely be made at some point, it is not necessary to today's decision. Consequently, the following narrative will be limited to a chronology of Judicial Watch's FOIA requests and the procedural stages of this litigation, as well as more detailed descriptions of events specifically relating to the mishandling of documents. The Court does note that the destruction and discarding of responsive documents comprises just one aspect of the unreasonableness of the DOC's search; however, for reasons explained in detail in Part II, below, this particular misconduct is central to a proper understanding of why merely entering judgment and granting a de novo search, as the DOC requests in its motion, would unjustly prevent the plaintiff from pursuing the full extent of relief available to it under the law.

A. Plaintiff's FOIA Requests

Sometime in 1994, Judicial Watch, a conservative public interest group, began to suspect that the Clinton administration was engaged in illegal campaign fundraising, including the exchange of seats on Department of Commerce foreign trade missions for political donations to the Democratic National Committee (DNC). After obtaining a DNC brochure that purported to offer participation in foreign trade missions as one of several benefits available to Managing Trustees of the DNC, a membership level requiring annual donations of $100,000, Judicial Watch filed two initial FOIA requests with the DOC. On September 12, 1994, Judicial Watch requested the release of all documents relating to Commerce Secretary Ron Brown's 1994 trade missions to China and South Africa. The following day, September 13, 1994, Judicial Watch filed another request with the DOC, reiterating the September 12 request and expanding it to also include all documents relating to trade missions to the former Soviet Union in March and April of 1994 and to South America in June and July of 1994.

One month later the hostilities began in earnest. On October 18, 1994, counsel for Judicial Watch, Larry Klayman, received a telephone call from Melissa Moss, Director of the DOC Office of Business Liaison. According to Klayman, Moss tried to pressure him into withdrawing or substantially narrowing Judicial Watch's requests, which he refused to do. Upon his refusal, Klayman alleges, Moss angrily hung up on him.

On October 19, 1994, Moss wrote to Klayman to "confirm" their October 18 conversation. Moss claimed in her letter that Klayman had "reformulated" Judicial Watch's request to be somewhat narrower. That same day (the correspondence was by facsimile) Klayman responded that he had agreed to no such reformulation and asked that Moss "refrain from any further mis-statements of [Judicial Watch's] position." Moss apparently did not respond.

Also on October 19, 1994, Judicial Watch filed its third FOIA request with DOC, this one relating to a trade mission to India scheduled for late 1994.1

B. Plaintiff's FOIA Action and Defendant's First Motion for Summary Judgment

Having received no response to its initial requests from the DOC, on January 19, 1995, Judicial Watch filed this action to compel the DOC to comply with its FOIA requests. In response, the DOC claimed that Judicial Watch would have to pay some $13,000 in photocopying and processing costs before DOC would release the responsive information. When Judicial Watch requested a public interest fee waiver, the DOC refused until, on May 16, 1995, this Court ordered that the costs be waived and the responsive documents released to Judicial Watch.

The next day, May 17, 1995, the DOC released some 28,000 pages of documents responsive to Judicial Watch's requests; it withheld over one thousand other documents in whole or in part, invoking several of the statutory exemptions set forth in the FOIA. Judicial Watch, unsurprisingly, was not satisfied that the 28,000 pages included all responsive documents. In particular, plaintiff noted that the released documents contained no documents from Secretary Brown, nor from the White House or the DNC. According to Judicial Watch, suspiciously little correspondence to and from trade mission participants was included, as well.

Upon the request of the parties, this Court received for in camera inspection all documents withheld pursuant to Exemption 5 of the FOIA. Before the Court had completed it review, however, the DOC filed its first Vaughn index and moved for summary judgment. On February 1, 1996, this Court denied the DOC's motion for summary judgment because the Vaughn index was insufficient to support judgment as a matter of law. The Court also ordered discovery on the issue of the adequacy of the agency's search for documents, and ordered the DOC to submit a revised Vaughn index.

C. Defendant's Second Motion for Summary Judgment

In April of 1996, the DOC submitted a revised Vaughn index and affidavits in support of a second motion for summary judgment. At a hearing on August 7, 1996, the Court denied the motion for summary judgment as to the adequacy of the DOC's search and ordered further discovery as set forth in a memorandum and order dated August 30, 1996.

On September 5, 1996, the Court issued a decision granting in part and denying in part the remainder of the DOC's motion. The Court found that 153 of the 306 documents withheld under Exemption 5 were improperly withheld in whole or in part, and ordered their release to Judicial Watch. Nevertheless, the Court granted summary judgment in favor of the DOC as to all other withheld documents.2

D. Initial Discovery—1996

Meanwhile, Judicial Watch had begun discovery designed to explore the adequacy of the DOC's documents search. Gradually that discovery begin to reveal evidence that the DOC had illegally destroyed and removed from...

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