                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA



 JUDICIAL WATCH, INC.,

         Plaintiff,
                v.                                          Civil Action No. 15-687 (JEB)
 UNITED STATES DEPARTMENT OF
 STATE,

         Defendant.


                                  MEMORANDUM OPINION

      This is yet another case spun off from the e-maelstrom swirling around Hillary Clinton’s

use of a private server during her time as Secretary of State. At issue here is the sufficiency of

the State Department’s response to a Freedom of Information Act request by Plaintiff Judicial

Watch that sought records pertaining to the production of certain Clinton emails. Judicial Watch

contends that Defendant improperly withheld, in whole or in part, 30 such documents under

Exemption 5 of FOIA. After reviewing these records in camera, the Court disagrees. As such, it

will grant the State Department’s Motion for Partial Summary Judgment as to this FOIA request.

I.    Background

      A cursory summary is all that is needed to tee up the narrow issue now at play. On March

6, 2015, Plaintiff submitted FOIA request F-2015-05048 to Defendant, seeking certain records

either relating to “the production of 55,000 emails by former Secretary of State Hillary Clinton”

or containing communications between State Department employees and Clinton (or her

associates) about emails she sent from non-“state.gov” email addresses. See ECF No. 25




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(Declaration of Eric Stein), ¶ 4. In other words, the documents sought were not the emails

themselves, but rather discussions about the emails.

      When State failed to respond to this request within certain statutory time limits, Judicial

Watch filed this action to, inter alia, compel disclosure of the records. See ECF No. 1

(Complaint). Defendant subsequently turned over 87 documents in full, but partially or wholly

withheld another 153 under various FOIA exemptions. See Stein Decl., ¶¶ 10-13.

      The parties then cross-moved for partial summary judgment as to the sufficiency of this

determination, ultimately disputing only whether the Department had properly withheld 30

records under Exemption 5. See ECF No. 25 (Motion); ECF No. 31 (Cross-Motion). To aid in

resolving that question, on January 24, 2017, the Court ordered Defendant to produce the records

for in camera review. See Minute Order of Jan. 24, 2017. Having now completed that

evaluation, the Court is primed to resolve the parties’ present dispute.

II.   Legal Standard

      Summary judgment may 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). A genuine issue of material fact is one that would change the outcome of the litigation.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that

might affect the outcome of the suit under the governing law will properly preclude the entry of

summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to

construe the conflicting evidence in the light most favorable to the non-moving party. See

Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006). Factual assertions in the

moving party’s affidavits or declarations may be accepted as true unless the opposing party




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submits his own affidavits, declarations, or documentary evidence to the contrary. Neal v. Kelly,

963 F.2d 453, 456-57 (D.C. Cir. 1992).

       “FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v. U.S.

Agency for Int’l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In FOIA cases, the agency bears

the ultimate burden of proof. See Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 n.3 (1989)

(citations omitted). The Court may grant summary judgment based solely on information

provided in an agency’s affidavits or declarations when they “describe the documents and 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.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981). 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) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III.   Analysis

       Congress enacted FOIA in order “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) (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). The statute thus provides that “each agency, upon any request for

records which (i) reasonably describes such records and (ii) is made in accordance with



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published rules . . . shall make the records promptly available to any person.” 5 U.S.C. §

552(a)(3)(A). Consistent with this mandate, federal courts have jurisdiction to order the

production of records that an agency improperly withholds. See id. § 552(a)(4)(B); Dep’t of

Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 754-55 (1989). In making

this determination, the court “[a]t all times . . . must bear in mind that FOIA mandates a ‘strong

presumption in favor of disclosure.’” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26, 32

(D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502 U.S. 164, 173 (1991)).

      Judicial Watch seeks the release here of 30 records that the State Department withheld in

whole or in part under Exemption 5 of FOIA. This exemption from the statute’s disclosure

requirements allows an agency to withhold “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). Under Exemption 5, the agency may thus refuse to turn over

“documents[] normally privileged in the civil discovery context.” NLRB v. Sears, Roebuck &

Co., 421 U.S. 132, 149 (1975). Although this exemption covers several privileges, the one in

focus here is the deliberative-process privilege. This privilege shields internal agency “advisory

opinions, recommendations and deliberations” from release in order to “protect[ ] the decision

making processes of government agencies.” Id. at 150 (quotation marks and citations omitted).

      While Judicial Watch concedes that this privilege appears to exempt the material it seeks,

it nevertheless invokes the narrow government-misconduct exception in an attempt to overcome

that privilege for these records. Nat’l Whistleblower Ctr. v. Dep’t of Health & Human Servs.,

903 F. Supp. 2d 59, 68-69 (D.D.C. 2012) (explaining extreme government misconduct may

override deliberative-process privilege in FOIA context); see also In re Sealed Case, 121 F.3d

729, 738 (D.C. Cir. 1997) (“[W]here there is reason to believe the documents sought may shed



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light on government misconduct, the privilege is routinely denied [in non-FOIA cases], on the

grounds that shielding internal government deliberations in this context does not serve the

public’s interest in honest, effective government.”) (quotation marks and citations omitted). In

the FOIA context, this requires the party seeking the records to “provide an adequate basis for

believing that [the material withheld] would shed light upon government misconduct.” Nat’l

Whistleblower, 903 F. Supp. 2d at 67 (quoting Judicial Watch of Florida, Inc. v. Dep’t of Justice,

102 F. Supp. 2d 6, 15 (D.D.C. 2000)); see also ICM Registry, LLC v. Dep’t of Commerce, 538

F. Supp. 2d 130, 133 (D.D.C. 2008) (noting courts have applied this exception under FOIA in

circumstances of extreme government wrongdoing). A document sheds light on misconduct

when it “reflects any governmental impropriety,” but not when it merely reflects a “part of the

legitimate government process intended to be protected by Exemption 5.” Nat’l Whistleblower,

903 F. Supp. 2d at 68 (citation omitted). Indeed, this limit on the exception is necessary to

assure that it does not swallow the deliberative-process rule. ICM Registry, 538 F. Supp. 2d at

133. The public continues, after all, to have a clear interest in preserving the space necessary for

government actors to engage in the type of honest and appropriate deliberations that preserve

effective governance, even when they concern past misconduct.

      Judicial Watch nevertheless contends that the exception operates here because the records

would purportedly illuminate the Department’s complicity in Clinton’s misuse of a private server

or, alternatively, expose later discussions by State employees “to create misinformation to

minimize the public’s perception” of that conduct. See Cross-Mot. at 3. The latter, so the

argument goes, would constitute an improper purpose that could alone amount to sufficient

government malfeasance. See ICM Registry, 538 F. Supp. 2d at 134 (implying in dicta that

“nefarious purpose” might warrant application of government-misconduct exception).



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       After reviewing the 30 records in camera, the Court finds no support for Plaintiff’s

position. Even assuming that the conduct hypothesized by Judicial Watch would rise to the level

required for the narrow government-misconduct exception, the records show no such acts. See

Walker v. City of New York, No. 98–467, 1998 WL 391935, at *1 (S.D.N.Y. July 13, 1998)

(concluding upon review of documents that government-misconduct exception did not apply as

they contained no indication of alleged wrongdoing). More specifically, the material withheld

does not provide insight into Clinton’s misuse of the private server, nor does it reveal any

purported Department complicity in that act or effort to downplay her conduct after the fact.

       Instead, as Defendant indicates, these records appear to consist of ordinary discussions

about legitimate policy ends. For example, the bulk is made up of a draft letter from a Deputy

Assistant Secretary to the National Archives and Records Administration. See ECF No. 38

(Second Vaughn Index), Category 1. This letter provides a general response to the latter

agency’s inquiry into the State Department’s management of records after news of Clinton’s

private server broke. Id. It contains run-of-the-mill track changes, red-line edits, and innocuous

comment bubbles suggesting revisions to the precision of the language by several employees.

None of these edits offers insight into any potential government malfeasance. State, moreover,

already turned over the finalized version of this letter to Plaintiff as part of its response to this

FOIA request, see ECF No. 33 (Reply), Exh. 2, and the draft appears to shed no further light on

the Department’s actions.

       Another large chunk of the contested withholdings are (often repetitive) portions of short

emails exchanged between various State Department employees. See Second Vaughn Index,

Category 2. Many of these redacted snippets discuss the potential point of contact for responses

to a draft letter that the agency sent out to former Secretaries of State to inquire about their email



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use during their service. Others discuss routine administrative tasks related to that same letter,

including an exchange over who among several records officials should sign the letter under

Department protocols. These redacted sentences are well within the realm of appropriate and

reasonable discussions that might be expected of government officials attempting to faithfully

fulfill their statutory obligations.

       A third category of partially redacted emails contains conversations between State

employees about potential steps that the agency should take in responding to public revelations

about Clinton’s use of the server. See Second Vaughn Index, Category 3-6. Some of these

emails simply forward news articles about this topic and contain no additional information about

any Department complicity in the server’s use. As State points out, this lack of information is

not surprising given that all of the records at issue in this FOIA request post-date Clinton’s time

as Secretary and thus her use of the server. See Reply at 5. Nor do any of these redacted emails

contain hints of any nefarious government action or motive in responding to that conduct. One,

in fact, largely consists of a draft webpage link for the public release of Clinton’s emails. See

Second Vaughn Index, Category 5. While others do discuss the scope and methodology of

State’s efforts to recapture emails, the communications again appear to be well within the realm

of legitimate policy ends. These records, in other words, demonstrate only that State employees

were actively offering various opinions as they worked to ensure that the agency appropriately

responded to the news swirling around Clinton’s emails.

        The final document withheld in full by State contains draft talking points prepared by a

Department attorney for a discussion with Congress regarding the production of Clinton emails

to the Select Committee on Benghazi. See Second Vaughn Index, Category 7. Although this

document contains the general fact that Clinton provided some emails to the Department that it



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was working to turn over, it provides no insight into any government complicity in her use of the

private server. The talking points, moreover, do not indicate an effort to downplay that conduct.

      The Court, therefore, concludes that Judicial Watch has not provided a sufficient basis to

believe that the information withheld by the State Department would shed light on any

government misconduct. Because the documents do not contain such material, there is also

nothing that could be reasonably segregated and turned over to Plaintiff under this exception.

See 5 U.S.C. § 552(b) (requiring agencies to release “[a]ny reasonably segregable portion” of

responsive records “after deletion of the portions which are exempt under [FOIA]”). The

Department, in fact, segregated individual sentences in most of the records and fully explained

how all the withheld information fell within the deliberative-process privilege. See Stein Decl.,

¶ 53. The Court confirms that these representations are accurate upon its own review as well.

IV.    Conclusion

      For the reasons explained above, the Court concludes that the State Department has met its

burden to demonstrate that it properly withheld in whole or in part these 30 documents under

Exemption 5’s deliberative-process privilege. It thus need not address the other privileges cited

to justify these withholdings. A contemporaneous Order will issue granting Defendant’s Motion

for Partial Summary Judgment and denying Plaintiff’s Cross-Motion for the same.



                                                     /s/ James E. Boasberg
                                                     JAMES E. BOASBERG
                                                     United States District Judge

Date: February 21, 2017




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