UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

 

JUDICIAL WATCH, INC., §
Plaintiff, §

v. § Civil Case No. 16-885
U.S. DEPARTMENT OF STATE, §
Defendant. §
)

 

MEMORANDUM OPINION
Hillary Clinton’s use of` a private email server while she was Secretary of State has
spawned a rash of Freedom of Information Act (FOIA) lawsuits, including this one. One of the
lawsuits, Leopold v. U.S. Department of State, Civil Case No. 15-123 (Contreras, J.), led to the
release of an email in which then-Secretary Clinton seemingly directed her deputy chief of staff
J ake Sullivan to strip the headings from a classified document and send it over an unsecure fax

machine.

This suit asks for emails about that email. When the Clinton-Sullivan exchange Was
released in 2016, it precipitated a firestorm of media and Congressional inquiries Those
inquiries themselves prompted a flurry of documents between State Department officials
planning and executing a public response. At a daily briefing the day after its release,
Department spokesperson John Kirby said, “We did do some forensics on [the Clinton-Sullivan
email exchange] and found no evidence it was actually emailed to her.” A few months later,
Judicial Watch filed this lawsuit to enforce its FOIA requests for records relating to the Clinton-

Sullivan exchange and for the factual basis of Kirby’s statement

Long after the spotlight moved to fresher intrigue, lawyers remain. The dispute has
narrowed to nineteen documents that show State Department officials in the throes of responding
to inquiries about the email. State seeks to partially withhold these documents under FOIA’s
Exemption 5, which incorporates the attorney-client and deliberative process privileges At least,
J udicial Watch argues State applied the privileges too broadly. At most, J udicial Watch contends
the deliberative process privilege should not apply at all, arguing it cannot shield government
misconduct. On July 24, 2018, the Court ordered [27] State to provide unredacted copies of the

documents f`or review ex parte to determine whether State properly invoked the privileges

Based on its review, the Court agrees with State in part and disagrees in part. After
reviewing the relevant legal standards, this opinion summarizes each document and applies the
appropriate rule. The opinion concludes by granting J udicial Watch’s cross-motion for summary
judgment [18] for ten documents,l granting State’s cross-motion for summary judgment [17] for

the remaining nine,2 and denying the balance of both motions.
I. Legal Standards
A. Exemption 5

FOIA provides a judicially enforceable right of access to federal agency records, unless

the records are protected from disclosure by one of nine exemptions or three special law

 

1 Documents C06087904, C()6188346, C061889l4, CO6188916, C061889l7, CO6188578,
C06087884, C06092906, C06092986, and C06087907.
2 Documents C06071863, C06071864, C06093072, C06()93081, C06093083, C()6093040,

C06188203, C06188506, and C06071850.

enforcement exclusions. See 5 U.S.C. § 552. Exemption 5, § 552(b)(5), allows government
agencies to withhold documents “normally privileged in the civil discovery context.” NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 149 (1975). According to the D.C. Circuit, Exemption 5
“unequivocally” incorporates “all civil discovery rules,” including the attorney-client and
deliberative process privileges. Martin v. Ojice of Special Counsel, Merit Sys. Protection Bd. ,
819 F.2d 1181, 1185 (D.C. Cir. 1987). When an agency seeks to invoke a privilege, it must
present sufficient facts-either in its Vaughn index or, during ex parte review, on the document’s
face-establishing the privilege applies. See Bartholdi Cable Co. v. F.C.C., 114 F.3d 274, 280
(D.C. Cir. `1997). And where application of a privilege is unclear, it “must ‘be construed as
narrowly as consistent with efficient Government operation.”’ Mapother v. Dep ’t of Justice, 3
F.3d '1533, 1537 (D.C. Cir. 1993) (quoting Wolfe v. Dep ’t ofHealth & Human Servs., 839 F.2d

768, 773-74 (D.C. Cir. 1988) (en banc)).
1. Attorney-Client Privilege

The attorney~client privilege protects “confidential communications between an attorney
and his client relating to a legal matter for which the client has sought professional advice.”
Mead Data Cent., lnc. v. U.S. Dep ’t ofAir Force, 566 F.2d 242, 252 (D.C. Cir. 1977). ln
government agencies, an attomey_client relationship is inferred when the agency “deal[s] with
its attorneys as would any private party seeking advice to protect personal interests.” Coastal

States Gas Corp. v. Dep’t ofEnergy, 617 F.2d 854, 863 (D.C. Cir. 1980).

2. Deliberative Process Privilege

The deliberative process privilege promotes and protects candor in governmental
decisionmaking Mapother, 3 F.3d at 1537. It allows agencies to withhold communications that

are both predecisional and deliberative. Id.

Communication is predecisional when “antecedent to the adoption of an agency policy.”
Ancz`em‘ Coin Collectors Guild v. U.S. Dep ’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011)
(intemal quotation marks omitted) (quoting Jora'an v. U.S. Dep ’t of Justice, 591 F.2d 753, 774
(D.C. Cir. 1978) (en banc)). Whether a communication is antecedent turns on the role it plays in
the decisionmaking process. For instance, a recommendation from someone lacking legal or
practical authority is predecisional since the final decisionmaker can decline to adopt it. See
Access Reports v. Dep ’l‘ ofJustice, 926 F.2d 1192, 1195 (D.C. Cir. 1991). Relatedly, an ex post
communication by a subordinate explaining a superior’s prior decision may still be predecisional

if it discusses recommendations not expressly adopted. See Sears, 421 U.S. at 151-53.

Communication is deliberative when it reflects the “give-and-take” of decisionmaking
Coastal States, 617 F.2d at 866. This means the privilege “covers recommendations, draft
documents, proposals, suggestions, and other subjective documents” conveying the author’s

judgment. Id.

Though the Court of Appeals has never addressed applying the deliberative process
privilege to public-relations issues, numerous district court opinions hold deliberations over
“how to respond to media inquiries” are protected when “generated as part of a continuous
process of agency decision making.” Judicial Watch, Inc. v. U.S. Dep ’t of Homeland Sec., 736 F.

supp. 2d 202, 208-09 (D.D.C. 2010).

Talking points have been characterized as “inescapabl[y]” part of that process, since by

their nature they are “rarely the final decision about what the [speaker] will say”:

[A speaker] may elect to use all, some, or none of the talking points . . . . And
even when [speakers] do follow their talking points, they often do not recite the
points word-for-word. . . . The final decision [i]s what [the speaker] actually said
t0 the media, which is, of course, already a matter of` public record. . . . A
government employee drafting talking points . . . needs to know that her advice
will remain privileged regardless of whether the [speaker] ultimately sticks to the
script or decides to extemporize. lt is accordingly of no moment [whether the
speaker] ultimately “stuck to the talking points”_the point is that she might not
have. . . . Moreover, sticking to talking points often does not entail a verbatim
recitation, leaving open the possibility that “a simple comparison” of the talking

points with the official’s public remarks would reveal the agency’s deliberations

Am. Ctr.for Law & Justice v. U.S. Dep ’t ofJustz'ce, No. 16-2188, 2018 WL 4283561, at *6-8

(D.D.C. Sept. 7, 2018) (quoting Mapother, 3. F.3d at 1538).

But this discussion proves too much. Extending it to its logical limits means any prepared
remarks_even the State of the Union_could be withheld under the deliberative process
privilege, since a speaker could always go off-script, extemporally exposing the final stage of a
deliberative process And although no one needs FOIA to obtain the State of the Union
(numerous videos and transcripts are available), government officials give hundreds of speeches
every day, all of which are important, though many elude recording or transcription. So
stretching the deliberative process privilege would put many important public statements outside

FOIA’s grasp, even well after the statements were made.

'The talking points considered by the American Cerrterfor Law & Justice court further
distinguish its result. Those talking points were not ordinary talking points prepared for an
ordinary spokesperson in an ordinary press briefing The talking points were drafted by
Department of Justice aides for use by then-Attorney General Loretta Lynch in press
appearances to defend her widely panned tarmac meeting with former-President Bill Clinton
during the 2016 presidential campaign. Because the talking points Were prepared by a
subordinate staffer, General Lynch could override them at any point, a fact the opinion
recognized Id. Put another way, the talking points at issue were effectively “advice from
subordinates,” not the final word on the Department’s public position. Ia'. The opinion
acknowledged an alternate style of talking points_those “represent[ing] the agency’s [final]

decision about what to 'say”_might induce a different result. Ia'.

Other cases echo that limitation by emphasizing that the deliberative process privilege
applies to “records preced[ing] the finalization of the [agency]’s media response” reflecting the
“give-and-take” leading to a consensus on the agency’s public position. Cause of Action v. IRS,
125 F. Supp. 3d 145, 160 (D.D.C. 2015) (emphasis added); see also Judicial Watch, Inc. v. U.S.
Dep ’t of Commerce, 337 F. Supp. 2d 146, 174 (D.D.C. 2004) (holding the deliberative process
privilege properly protected talking points “prepared by [agency] employees for the
consideration of [agency] decision-makers”). And not least, this treatment comports with the
Court of Appeals’s command to construe Exemption 5 privileges as narrowly as possible. See

Mapother, 3 F.3d at 1537.

i. The Government Conduct Exception to the Deliberative Process
Privilege '

“[W]here there is reason to believe” documents withheld under the deliberative process
privilege “may shed light on government misconduct,” courts can decline to recognize the
privilege, since “shielding internal government deliberations in this context does not serve ‘the
public’s interest in honest, effective government.”’ In re Sealed Case, 121 F.3d 729, 738 (D.C.
Cir. 1997) (quoting Texaco P.R., Inc. v. Dep ’t of Consumer Ajj”airs, 60 F.3d 867, 885 (1st Cir.

1995)).

This exception is well established in civil discovery. See, e.g., Hincklej) v. United States,
140 F.3d 277, 285 (D.C. Cir. 1998). The Court of Appeals, however,_has never decided whether
the exception abrogates the privilege in FOIA litigation, and lower courts have divided.
Compare, e.g., Judicial Watch, Inc. v. U.S. Dep ’t of State, 241 F. Supp. 3d 174, 182-83 (D.D.C.
2017) (Berman Jackson, J.) (holding the government conduct exception does not apply to FOIA
cases), with, e.g., Nat’l Whistleblower Ctr. v. Dep ’t of Health & Human Servs., 903 F. Supp. 2d
59, 66 (D.D.C. 2012) (Boasberg, J.) (suggesting the government conduct exception applies to

FOIA cases).
II. Application

Af`ter further review, the Court concludes State’s withholdings were proper for nine
documents3 but improper for ten documents4 The Court further concludes that, even if the

government conduct exception applies to FOIA litigation, it does not override proper application

 

3 See documents cited supra note 2.

4 See documents cited supra note 1.

of the deliberative process privilege here, since these documents were a byproduct of State’s

compliance with a judicial order.
A. Document Summaries

In this Section, the Court summarizes each document as arranged by State’s Vaughn
index (ECF No. 17-1, at 7-10) and assesses the claimed privileges’ applicability. The Court
concludes State properly invoked Exemption 5 for all documents discussed in subsections II.A. 1 ,
.3, .5, and .8; and for some documents discussed in II.A.6; but not for documents discussed in

II.A.2, .4, and .7.
1. “Nonpaper Response Suitable for Corker Burr and Grassley”

The first five documents5 are emailsl circulating and critiquingl a draft letter responding to

Congressional inquiries into the Clinton-Sullivan email exchange.

State seeks to withhold the emails’ substance under both the attorney-client and
deliberative process privileges Its argument applying the attorney-client privilege relies on the
Vaughn index’s bald assertion that the recipients “includ[ed] Department attorneys.” State skates
over who they are, as do the emails themselves Nothing about the documents appears to
dispense legal advice or further an existing attorney-client relationship. But regardless of
whether the attorney-client privilege should apply, soliciting revisions and feedback on a draft is
plainly predecisional and deliberative. Moreover, no proposed withholdings are further
segregable. State may properly withhold the proposed portions under the deliberative process

privilege.

 

5 C06071863, C06071864, C06093072, C06093081, and C06093083.

2. “Planning to read out nonpaper email to Grassley staff today”

The next two documents6 are February 2016 emails discussing State’s prior public
comments on the Clinton-Sullivan email exchange. Claiming the deliberative process privilege,
State seeks to redact information styled as “press guidance from January 11th for podium”_the
talking points used by a spokesperson during a press conference the month before. The email

author notes she is “not sure what ended up being deployed.”

The proposed withholdings are neither predecisional nor deliberative; the deliberative
process privilege is inapplicable For one, the emails share the talking points after they were
used. They do not share previous versions of the talking points, created in the process of deciding
what a spokesperson will say at some future press conference. If they did, the privilege`would
undoubtedly apply. But rather, the author includes the talking points as an “FYI,” apparently to

keep recipients apprised of the final public position State authorized a month earlier.

Nor do the proposed withholdings involve any deliberation. There is no give-and-take; no
one seeks or provides feedback; the talking points were not prepared for use by a superior
official with authority to depart from their content. The emails mechanically reproduce-without
any analysis_finalized talking points that were already used. If State had copied-and-pasted a
transcript of the press conference into the email, their claim for the deliberative process privilege
would plainly fail. And here, State has done the functional equivalent, effectively copying-and-

pasting their side of the script from the press conference. The privilege is equally unavailable`.

 

6 C06087904 and C06188346.

Discussing how to respond to a current or future press inquiry is different from conveying
the final result of an earlier discussion about how to respond to a past inquiry. These documents
are the latter. But unfortunately for State, the deliberative process privilege protects only the
forrner. Even more because, unlike in American Cerzter for Law & Justice, this press guidance
was not a suggestion from a subordinate employee about what a superior should say. These
talking points represent the final, settled “party line.” State misapplied the deliberative process

privilege.

3. “For response soonest: Politico story re Jake Sullivan and ‘Top Secret’
\emails”

The next document7 is an email chain beginning when Politico reporter Rachael Bade
notified State about an upcoming story on J ake Sullivan’s role in Clinton’s email scandal and to
request “any off the record . . . guidance.” Bade’s message circulated throughout State’s
communications team, resulting in emails drafting, tweaking, and approving a quote that would
ultimately be attributed to “a State Department official.” Rachael Bade, Top Clintorl adviser sent
‘top secret’ messages to her private account, Politico (Feb. 10, 2016, 4:00 PM),

https://www.politico.com/story/2016/02/hi11ary-clinton-email-jake-sullivan-secret-219013.

State seeks to withhold almost all substantive conduct under both the attorney-client and
deliberative process privileges Yet again, besides the Vaughn index’s boilerplate assertion that
the email chain “includ[es] an attorney’s opinion,” State elides how the attorney-client privilege

applies Regardless, the emails reflect the give-and-take of a continuous decisionmaking process

 

7 C06093040.

10

And no proposed redaction is further segregable. Accordingly, State properly invoked the

deliberative process privilege for the proposed withholdings
4. “POINTS”

The next three documents8 are emails from January 8, 2016. The first, from staffer
Lauren Hickey, shares press guidance in response to State’s January 7 email release including
the Clinton-Sullivan exchange. The other two emails are responses_“Thanks” and ?‘Thanks
Lauren”_with Hickey’s original message visible below. In all three, State attempts to redact the

press guidance, claiming the attorney-client and deliberative process privileges

State misplaces both. For one, though it bears the burden of showing the attorney-client
privilege applies State merely asserts the email chain “includ[es] Department attomeys?’ without

saying who and without explaining how the documents further an attorney-client relationship

What is more, the documents are neither predecisional nor deliberative. The talking
points are final versions-not drafts-that seem to have been authorized and released before the
email was sent. Like the talking points discussed in subsection II.A.2, this proposed withholding
is seemingly provided as an “FYI,” and the arguments rejecting the deliberative process privilege
in that subsection apply here with equal force. State cannot use Exemption 5 to shield this press

guidance.

 

8 C06188914, C06188916, and C06188917.

11

5. “Press points for Clinton email release”

In the next document,9 a State press aide sends a White House official already-released
press guidance and summarizes additional press guidance to follow the next day. State seeks to
withhold the summary of the next day’s press guidance as part of a deliberative process But the
proposed withholding appears neither predecisional nor deliberative. lt does not ask for the
White House’s approval or feedback, nor does it contain precatory or suggestive language. lt
relays not a tentative plan but an already settled strategy. Since the documents do not appear to
be predecisional or part of a give-and-take, State’s attempt to characterize the proposed

withholding as part of a deliberative process misses the mark. The privilege does not apply.
6. January 2016 Talking Points

The next five documents10 are confusing State describes them as “draft press guidance
for responding to press inquiries,” and seeks to withhold portions of all under the deliberative
process privilege. Two documents relate to the Clinton-Sullivan email exchangel l; the other

three relate to State’s January 2016 email release.12

 

9 C06188578.
10 C06087884, C06092906, C06092986, C06188203, and C06188506.
11 C06087884 and C06188506.

12 C06092906, C06092986, and C06188203.

12

Judging by the face of the documents, one related to the Clinton-Sullivan email exchange
is obviously a draft,13 as is one relating to the January 2016 release.14 State properly applied the

deliberative process privilege to these two documents15

For the other three documents,16 all multiple pages long, State attempts to redact only the
first page under the deliberative process privilege. The remaining pages are unredacted but
include a “Page Denied” watermark. Two documents appear to be identical.17 But except for the
watermark, nothing about the three (really two) documents obviously indicates they are
unfinished. They read like prepared, bulleted talking points and canned answers to expected
questions And nothing in the Vaug}in index provides further background or support ford

concluding the documents are predecisional or deliberative

Absent any explanation of the role these documents played in a deliberative process, and
mindful of the need to narrowly construe the Exemption 5 privileges the Court concludes State
fell short in establishing the deliberative process privilege should apply to the three not-

obviously draft documents18

 

13 C06188506.

14 C06188203.

15 C06188506 and C06188203.

16 C06087884, C06092906, and C06092986.
17 C06092906 and C06092986.

18 C06087884, C06092906, and C06092986§

13

7. “WP story”

The next document19

is an email chain beginning when one aide forwards a Washington
Post article about Hillary Clinton’s use of a private email server while serving as Secretary. One

person replies with a “point of interest,” and the initial author responds

State seeks to withhold the substance of the two replies under the deliberative process
privilege But that claim fails from the start, since neither communication appears to be
predecisional Neither email contemplates a future agency action; both seem to be off-hand
reactions unconnected to any future agency action or goal. Nor is either email deliberative There
is no back-and-forth, and no sign of a continuous decisionmaking process Since the emails are

neither predecisional nor deliberative, the privilege falls short.
8. “possible to set up a quick call?”

This January 2016 email chain,20 as described in the Vaughn index, “discuss[es] how the
agency should respond to a Congressional inquiry and document request.” Much of the email
chain refers abstractly to information sent and received on the “high side,” but State seeks to
withhold what little substantive information does appear under the attorney-client and

deliberative process privileges

Unlike previous documents, one participant is identified as an attorney, and appears to be

providing feedback in an attorney-client relationship Though most of the chain merely arranges

 

19 C06087907.

20 C06071850.

14

an in-person meeting, the few details State seeks to withhold properly fall within the attomey-

client privilege

Additionally, the proposed withholdings concern requests for review and feedback. The
redacted information thus appears to be both predecisional and deliberative, so the deliberative
process privilege properly applies Nor are any proposed withholdings further segregable. State

can thus Withhold the information under Exception 5.
B. The Government Conduct Exception Does Not Apply.

‘ As subsection I.A.2.i of this opinion notes, whether the government conduct exception
can override the deliberative process privilege in a FOIA case is an open question. But resolving
this case does not require ran answer. It is enough to say the government conduct exception

would not apply regardless

At bottom, these documents show State Department officials suffering the slings and
arrows of` abiding by Judge Contreras’s order to release thousands of pages of nonexempt work-
related emails sent by Hillary Clinton from her private server while Secretary. Simply put, these
documents shed light on government compliance-not misconduct lt would be very odd to
characterize as misconduct documents created downstream from compliance with a judicial

order, regardless of whether that order itself remedied prior misconduct.
III. Conclusion

The Court grants J udicial Watch’s cross-motion for summary judgment in part for
documents C06087904, C06188346, C06188914, C06188916, C06188917, C06188578,
C06087884, C06092906, C06092986, and C06087907, but denies the motion in all other

respects At the same time, the Court grants the State Department’s cross-motion for summary

15

judgment in part for documents C06071863, C06071864, C06093072, C06093081, C06093083,

C06093040, C06188203, C06188506, and C06071850, but denies it in all other respects

A.separate order shall issue on this date

 

 

214 c' ~ M / ° / / ,// g/
ROYC]§`,’C. LAMBERTH Date
United States District Court

16

