Judicial Watch, Inc. v. U.S. Department of State

Opinion

UNlTED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC., Plaintiff, v. Case No. l:16-cv-02368 (TNM)

U._S. DEPARTMENT OF STATE,

Defendant.

MEMORANI)UMl OPINION

Plaintift` Judicial Watch, Inc. (“Judicial Watch”) brought an action against the United States Department of State (“State Department”) under the hreedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., seeking the production of documents related to a determination \ that certain emai_ls of former Secretary of State Hillary Clinton are not official State Department -rec_ords. Pending before the Court is the State Department’s motion for summary judgment and Judicial Wat"ch’s` cross-motion for summary judgment Hai/ing continued that jurisdiction and Venue is proper in this _Court,l and upon consideration of the pleadings, relevant laW, and related legal memoranda in opposition and in support, I find that no genuine issue of material fact exists and that the State Department met its obligations with respect to J udicial Watch’s FOIA request. ' Accordingly, the State Department’s motion will be granted and .ludicial`Watch’s motion Will be

denied

lsee 5 U.s.C. § 552(&)(4)(13); 23 U.s.C. §§ 1331,1391.

, I. Background

J udicial Watch is a not-for-profit organization that seeks to promote transparency, integrity, and accountability in government and regularly Submits FOI_A requests to execute its mission Compl. {[ 3. `In September 2016, J udicial Watch submitted a FOIA_ request to the State Department seeking “[a]ny and all records concerning, regarding or relating to the determination by the Office of Legal Counsel that the emails of former Secretary of State Hillary Clinton dated January-Apri_l 2009 would not be considered official State Department Records.” Memo. of P. & A. in S_upport of Def.’s Mot. for Summary J. Ex. 1. The request attached a Federal Bureau of Investigation (“FBI”) Form 302 dated August 18, 2015 that summarized an interview conducted by the FBI with an empfoyee of the Office of Information Prograrns and Services (“IPS”), an _ office within the State Department. See id. at 4-8. The identity of the employee had previously been redacted pursuant to FOIA exemptions (B)(6) and (B)('?)(c), which protects personal 1 identifying information `See id. The Forin 302 stated that “IP'S had to wait on the O|ffice of Legal Counsel to provide an official determination as to whether the emaiis would be considered official STATE records. At some point, the determination was made that the emails would not be considered official S"l`ATE records.” id at 2 (capitalization in original). These two sentences formed the basis for Judicial Watch’s FOIA request._

The State Department reviewed J udicial Watch’s request and determined that the offices reasonably likely to have responsive records were the Office of the Legal Adviser and IPS. Def.’s Statem'ent-of Material F acts l\lot In Dispute (“SOMF”) 11 8.2 AWit_hin the Office of the

Legal Adviser, an employee with relevant knowledge of the FOIA request and the office’s

` _ 2 Judicial Watch did not dispute any statements in the State Department’s SOMF. Pl. ’s

Response to Def. s SOMF W § I. 1-20. Accordingly, all citations to the State Department_’ s SOMF indicate undisputed facts m this matter.

systems determined that no centralized electronic or paper files were reasonably likely to have responsive-records Id. at ‘[[ 9. The employee also identified the current and former A_cting Legal Adviser as individuals reasonably likely to have`responsive records and conducted searches of their unclassified and classified email records Id. at W 9~1 l. In addition,`the employee searched the archived personal drive materials of the former Acting Legal Adviser. Id. at 1[ ll. No responsive records were located pursuant to these searches,r andother officials in the Office of the Legal Adviser’=s Front O`ffice and Office of the Legal Adviser, Management confirmed that they were not reasonably likely to have records responsive to the FOIA request Io'. at 111[ 10-

12.

Within IPS, an employee with relevant knowledge of the F(SIA request and the office’s l systems determined that no centralized electronic or paper files, or classified records systems, were reasonably likely to have responsive records. Id_ at 11 l3. _The employee further identified four individuals as reasonably likely to have responsive records: the former IP-S ljirector, the former Deputy Assistant Secretary for Global Infonnation Systems, the current lPS Deputy Director`, and the current IPS -Director. Id. IPS then conducted searches of the unclassified email or archived email files, certain folders and sub-folders, or archived personal drive materials of the fenner IPS Director and former Deputy Assistant Secretary for Global Information Systems. Id. at1[1l 14-15. The current IPS Deputy Director confirmed that he was not reasonably likely to have responsive records, and the current H’S Director searched and reviewed records in certain email archives he determined that were reasonably likely to have responsive records Id. at TH[

16-17. No responsive records were located through these searches Id. at 1[1§ 14-16. Last, lPS

conducted a search using its Retired Records Inventory Management System to identify any

potentially responsive paper files, pursuant to which no responsive records Were identified Id. at

gm 18-`19. II. Le_gal Standard

FOIA requires federal agencies to “disclose information to the public upon reasonable request-unless the records at issue fall within specifically delineated exemptions.” Judicinl Warch, Inc. v. FBI, 522 F.3d 364, 365-66 (D.C. Cir. 2008); see also 5 U.S.C. § 552(a)(3)(A) (records sought must be “reasonably describe[d]”). The “vast majority” of FOIA cases are decided on motions for summary judgment See Brayton v. Ojj’ice of U.S.- Trade Rep., 641 F.Zd . 521, 52'17l (D.C. Cir. 20l1). To prevail on summary judgment, the movant must show an absence _ of a genuine issue of material fact. Fed. R. Civ. P. 56(a); see also Anderson v. L'iberty Lobby,

Inc., 477 U.S. 242, 247 (1986); Celotex Corp v. Catrett, 477 US. 317, 322 (1986). ln FOIA ‘ cases, an agency must demonstrate that no material facts are in dispute, that i`t has conducted an adequate search for responsive records,- and that each responsive record has either been produced to the requestor or is exempt from disclosure _See Wer`sberg v U.S. Dep ’r ofJusricle, _627 F.2d 7 365; 368 (D.C. Cir. 1980), l

The agency’s search is adequate if the agency has conducted “a good faith effort to [] search for the requested records, using methods which carr be reasonably expected to produce the information requested.” Oglesby v. U.S. Dep ’t ofthe Army, 920_F.2d 5'/",_68 (D.C. Cir. 1990-1 ln other words, the agency must “demonstrate beyond material doubt that its search was reasonably n calculated to uncover all relevant documents.” Narion Magaaine v. U.S. Customs Serv., 71 F.3d 885, 890 (D_.C. Cir. 1995)1 However, the touchstone oftheanalysis is the reasonableness of the _ agency’s search, not the records produced See Hoa'ge v. FB[, 703 F.3d 575, 580 (D.C. Cir.

2013) (“the adequacy of a search is determined not by the fruits of the search, but by the

appropriateness of [its] methods”); Mobley v_ CIA, 806 F.3d 568, 583 (D.C. Cir. 20l5) (“a search, under FOIA, is not unreasonable simply because it fails to produce all relevant material.”)_. An agency has discretion to craft its search to meet this standard, and do not_have to search every system if additional searches are unlikely to produce any marginal return. See

_ Campbell v. U.S. Dep ’t of.]usrz'ce, 164 F.3d 20, 28 (D.C. Cir. 1998). Searching for records requires “both systemic and case-specific exercises of discretion and administrative judgment and expertise,” and is “hardly an area in which the courts should attempt to micro-manage the executive branch.” Schrecker it Dep ’t ofJustice, 349 F.3d 657, 662 (D.C.7 Cir. 2003). To demonstrate reasonableness of its search, an agency can submit a “reasonably detailed affidavit, setting forth the search terms and the type of search performed, and aven'ingthat all files likely to contain responsive materials (if such records exist) were searched_.” Ogl'esby, 920 F.2d at 68. Agency declarations are given “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. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991).

111. Analysis n

The State Department’s search was “reasonably calculated to uncover all relevant documents” responsive to Judicial Watch’s FOIA request. See Ncrrz`on Magazr'ne, 71 F.3d at.-890. As an initial matter, although the request sought records relating to a determination reportedly made by the “Office of Legal Counsel,” mirroring the language used in the FBI’s completed Form 302, the State Department liberally interpreted the request to mean its Office of the Le.gal

Adviser as it does not have an c‘Offi_ce of Legal Counsel.” Mern. of‘P. & A. in Support of Def.’s

Mot. for Summary J. 7.3 Given that th_e Form 302 was prepared by a FBI agent who was, in turn, summarizing the interviewee’s statements, it is not clear whether the citation to the “Ofiice of _ Legal Counsel” is a typo on the agent’s part, a misunderstanding on_theagent’s_ part, a misunderstanding-on the interviewee’s part, or some combination thereof Therefore, the State Department appropriately interpreted the request to mean a determination either by its -O-ffice of ` the Legal Adviser or by OLC. See ial Ex. 3 11 4 n.l.

The State Department then appropriately crafted searches commensurate with the scope and nature of J udicial Watch’s request. The State Departrnent determined that, based on the details of the request and in consideration of the functions of its component offices, the offices reasonably likely to have responsive records were the Office of the Legal Adviser and lPS, the office in which the interviewee Worked. Def.’s SOMF ‘ll 8. For each of these offices, an employee with requisite knowledge of the FOIA request and the office’s systems determined: ` (l) whether any of the office’s systems were reasonably likely to contain responsive documents, _ and (2) which individuals within the office were reasonably likely to have responsive documents Id. at 1l1l 9, 13. Searches tailored to the request, both in subject matter and date range, were conducted-of the various sources of data identified as potentially containing responsive information, including unclassified email records, unclassified email archive files, classified email records, and archived personal drive materials Ia’. at 11{[ 10-17. These searches were further modified-or refined as necessary¥for example, the State Departrnent not only searched theemails of the former IPS Director using search terms, but also conducted a manual review of

emails in certain folders and sub-folders that, based on their subject matter title, were deemed

3 The U.S'. Department of Justice does have ann Office of Legal Counsel (“OLC”), but it seems unlikely that OLC would have been involved in this internal State Department issue In any event, Judicial Watch did not include the Department of Justice in its FOIA request.

- methodology

reasonably likely to containl responsive records. See Def.’s SOMF 11 14. Within IPS, an

employee further identified, through the use of the office’s Retired Records lnventory

l\/lanagement System, two archived boxes of potentially responsive documents, which were manually reviewed Id. at 111 18-19.

l That no responsive records were identified throughout all of the State Department’s searches does not impugn the appropriateness of the search methodology See Hocfge, 703 F.3d at 580 (“the adequacy of a search is determined not by the fruits of the search, but by the l appropriateness of [its] methods”). Indeed, l udicial Watch does not challenge any of the specific determinations made or the searches conducted by the State Department, other than to - characterize the searches as “garden variety”. See Pl.’s Response to Def.’s SOMF; Pl;’s Mem. of P. & A. in Opp. to Def.’s Mot.- for Summary J. and in Support of Pl.-’s Cross-Mot. for Summary J . 3. Rather, J udicial Watch asserts that a reasonably calculated search in response to its request necessarily should have included asking the IPS interviewee whether the requested documents exist, and where they may be located Id.' However, as demonstrated above, the State Department’s searches Were anything but rote: they were designed land executed in a manner reasonably expected to produce the information requested In particular, the State Department Was aware of the identity of the interviewee, and its searches included a search of the`files and 7 accounts of the interviewee. Mem. of P. & A. in Opp. to Pl.’s Mot. for Summary J land in Reply

in Support of Def_.’s Mot. for Sumrnary J. 4»5 (citing the Second Declaration of Eric F. Stein).

. Because agency declarations are given `a presumption of good faith, see Saj%Card, 926 F.2d at

1201 , and there is no evidence in the record indicating the contrary, there is no reason to

disbelieve that the agency considered and incorporated the source of the interview in its search

l

Although Judicial Watch’s suggestion of simply asking the,interviewee about the potential existence and location of the documents appears plausible on its face_indeed, likely much easier than the laborious efforts the State Department actually utilized-"to do so would have placed the State Department in a quandary. Judicial Watch has already narrowed the list of potential interviewees to three, one of whom no longer works for the State Department See Pl.’s Reply in Support of Cross-Mot. for Summary J. 2-3. Depending upon whether the interviewee is in fact the former employee, the requisite declaration describing the efforts taken by the State Department would inevitably have either identified the interviewee or narrowed the list to two. FOIA does not require_and in fact expressly exempts_disclosure of the interviewee’s identity; see 5 U.S.C. §§ 552(]3)(6), 552(B)(7)(c); and this litigation should not be used as a back~door means of discerning the same. Thus, the agency’s search of the interviewee’s'documents, coupled With the other steps taken by the State Department__in response to J udicial Watch"s request, reflects a` search methodology “reasonably expected to produce the information n requested_” See Og[esby, 920 F.2d at 681 The search efforts'undertaken by the State Department appropriately balanced the rights of J udicial Watch to obtain information with the right of the

interviewee to remain anonymous Nothing more is required IV. Conclusion

For the foregoing reasons', the Defendant’s motion for summary judgment will be granted

and Judicial Watch’s motion for summary judgment will be denied A separate order will issue.

Dated: January 19, 2018 ' ' United St_ates District Judge