Daily Caller v. U.S. Department of State

152 F. Supp. 3d 1, 2015 U.S. Dist. LEXIS 175441, 2015 WL 9907802
CourtDistrict Court, District of Columbia
DecidedDecember 8, 2015
DocketCivil Action No. 15-1777 (BAH)
StatusPublished
Cited by21 cases

This text of 152 F. Supp. 3d 1 (Daily Caller v. U.S. Department of State) is published on Counsel Stack Legal Research, covering District Court, District of Columbia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Daily Caller v. U.S. Department of State, 152 F. Supp. 3d 1, 2015 U.S. Dist. LEXIS 175441, 2015 WL 9907802 (D.D.C. 2015).

Opinion

MEMORANDUM OPINION

BERYL A. HOWELL, United States District Judge

Beginning in the spring of 2015, numerous print, television, and internet media outlets began aggressively investigating and reporting on former Secretary of State Hillary Clinton’s use of a private email server during her time at the U.S. Department of State (“State Department” or “agency”). The plaintiff, a 24-hour online news publication, submitted five requests under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to the State Department seeking the .release of records potentially related to its ongoing coverage of this story. , Although .the State Department has acknowledged receipt of these requests, and has agreed to process each request on an expedited basis, the agency has neither completed its collection and review of potentially responsive records nor produced more than a small number of records in response to the plaintiffs requests.

Seeking to accelerate further the agency’s processing of its outstanding, requests, the plaintiff initiated this action on October 21, 2015. See Compl., ECF No.^1. Pending before the Court is the plaintiffs Motion for Preliminary Injunction, pursuant to Federal Rule of Civil Procedure 65, seeking an order requiring the State Department to collect, review and produce all non-exempt documents responsive to each of its outstanding request's-within the next twenty business days. PL’s Mot. Prelim. Injunc. (“PL’s- Mot.”), ECF No. 3; see also Compl. at 1L-12. For the reasons discussed below, the plaintiffs motion is denied.1 , . •

I. BACKGROUND

• With public attention turning to the 2016 presidential election, and former Secretary of State Clinton’s candidacy for the Democratic nomination, the State Department has since late 2014 received numerous FOIA requests seeking documents related to various aspects of Clinton’s tenure at the agency. In particular, following initial reports of Clinton’s use of a private email server in early March 2015, see Michael S. Schmidt, Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules, N.Y. TIMES (Mar. 2, 2015), numerous, individual reporters and publications filed FOIA requests seeking State Department records related to this arrangement, including emails that were in the possession of former Secretary Clinton and members of her staff, .Order Denying Mot. Designation of Coordinating Judge at 1, In re: U.S. Dep’t of State FOIA Litig. Regarding Emails of Certain Former Officials, No. 15-mc-1188 (D.D.C. Oct. 8, 2015), ECF No. 41. These requests, and the attendant challenges in responding 'fully and on a timely basis to each request, have in turn begat extensive litigation against the State Department, with some three dozen cases stemming from these requests pending before this Court as of early October 2015. Id.

After the State' Department’s motion to designate a coordinating judge to oversee these cases was denied, id.- at 2, the cases [4]*4are proceeding separately and concurrently, resulting in various court orders requiring the agency to process and produce non-exempt documents responsive to many of the underlying requests. Most significantly, pursuant to an expansive request submitted by an investigative journalist in November 2014, the State Department is currently required to produce approximately 55,000 pages of responsive documents, on a rolling basis, by January 29, 2016. Scheduling Order, Leopold v. U.S. Dep't of State, No. (D.D.C. May 27, 2015) (the “Leopold Order”), ECF No. 17. Compliance with this and other production schedules is consuming a substantial portion of the agency’s FOIA-processing resources, with roughly half of the agency’s FOIA-related staff resources dedicated exclusively to processing Clinton email requests and the agency currently detailing and training additional analysts to assist with this work. Deck John F. Hackett (Nov. 19, 2015) (“Hackett Deck”) ¶¶ 5- 6, 15, ECF No. 14-1.

Among this flood of Clinton-related activity are the five requests at issue here, which the plaintiff submitted to the agency between March 2015 and August 2015. The plaintiffs requests are summarized as follows:

• FOIA Request F-2015-04623 (March 3, 2015), seeking all State Department processing, notes stemming from six prior FOIA requests submitted by the plaintiff seeking information relating to Secretary Clinton’s emails and those of her aides. Deck Chuck Ross (“First Ross Deck”) ¶ 6, ECF No. 3-2.
• FOIA Request F-2015-04646 (March 5, 2015), seeking all communications, electronic or otherwise, sent to or from various senior State Department officials referring in any way to Secretary Clinton. Id. ¶ 11.
• FOIA Request F-2015-04997 (March 11, 2015), seeking all separation statements signed by Secretary Clinton or three former aides. Id. ¶ 15.
• FOIA Request F-2015-11536 (June 27,2015), seeking all records handled by a State Department Undersecretary pertaining to Secretary Clinton’s use of a personal email address and private server. Id. ¶ 19.
• FOIA Request F-2015-12685 (Aug. 5, 2015), seeking all employment records related to a former State Department special information technology advisor, as well as any emails sent to or from this advisor or sent to or from the previously referenced former Undersecretary referring to this advisor. Id. ¶ 23.

After acknowledging receipt of each of these requests, the State Department granted, on or before August 11, 2015, the plaintiffs further application for both expedited processing and a fee waiver as a member of the news media. Id. ¶¶ 6, 11, 15, 19; Sec. Deck Chuck Ross (Nov. 24, 2015) (“Sec. Ross Deck”) ¶ 19, ECF No. 17-1. While failing to provide a definite time limit for its processing of each of these requests, First Ross Deck ¶¶ 8, 12, 16, 20, 25, the agency has notified the plaintiff that certain of the sought-after documents have been made publicly available on the agency’s website in response to other outstanding FOIA requests, Hackett Deck ¶ .12.

To process the plaintiffs requests, the agency has assigned a designated FOIA analyst to coordinate the search for and review of potentially responsive records. Id. ¶ 15. As of November 19, 2015, the agency’s Director of Information Programs and Services reports that this effort is ongoing, and the agency has yet to determine the total volume of potentially responsive records. Id. Further, because [5]*5many of the records sought by the-plaintiff may include sensitive national security and diplomatic material, as well as.personally identifiable information of current and former State Department employees, the agency has indicated that any responsive documents will require additional evaluation by senior reviewers with specialized expertise and credentials. Id. ¶ 17-18. Although many of these senior reviewers are currently assigned to the agency’s response to the Leopold Order, id. ¶18, ,a reviewer with,the necessary credentials and expertise is expected to be available to assist in processing the plaintiffs requests in February or March 2016, id. ¶ 22.. •

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Bluebook (online)
152 F. Supp. 3d 1, 2015 U.S. Dist. LEXIS 175441, 2015 WL 9907802, Counsel Stack Legal Research, https://law.counselstack.com/opinion/daily-caller-v-us-department-of-state-dcd-2015.