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Case TitleJUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF STATE
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2016cv00885
Date Filed2016-05-10
Date Closed2018-10-02
JudgeJudge Royce C. Lamberth
PlaintiffJUDICIAL WATCH, INC.
Case DescriptionJudicial Watch submitted two FOIA requests to the Department of State for records concerning talking points that were allegedly emailed to former Secretary of State Hillary Clinton by staff member Jacob Sullivan in which Sullivan was instructed to turn the talking points into "non-paper" form and send them by non-secure email. The second request was for records concerning statements made by State Department spokesman John Kirby indicating that the agency had investigated the allegations and found that no such email had been sent to Clinton. The agency acknowledged receipt of the requests, but after hearing nothing further from the agency, Judicial Watch filed suit.
Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees

DefendantU.S. DEPARTMENT OF STATE
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Opinion/Order [30]
FOIA Project Annotation: Judge Royce Lamberth has ruled while nine of the Exemption 5 (privileges) claims made by the Department of State pertaining to a handful of Hillary Clinton's emails are appropriate, ten are not. As a result of litigation brought by journalist Jason Leopold, the State Department disclosed an email Clinton sent to chief of staff Jake Sullivan apparently directing Sullivan to strip headings from a classified document and send it over an unsecured fax machine. Following up on the email, Judicial Watch filed a request for more records which eventually led to litigation. The State Department argued that Judge James Boasberg's ruling in American Center for Law & Justice v. Dept of Justice, 2018 WL 4283561, in which Boasberg found that talking points prepared for former Attorney General Loretta Lynch to use in responding to inquiries about her meeting with Bill Clinton were deliberative because it was up to Lynch to decide the extent to which she would use the talking points, was dispositive in this instance. Noting that Lynch's position as head of the Justice Department made those circumstances more unique than the run-of-the-mill use of talking points, Lamberth found the claim went too far, pointing out that "government officials give hundreds of speeches each 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 after the statements were made." Judicial Watch argued that the government misconduct exception applied, meaning that the deliberative process privilege was waived. Lamberth found that some of the email exchanges were not protected by the deliberative process privilege. He indicated that State had properly claimed the privilege for five documents that circulated and critiqued a draft letter responding to Congressional inquiries about the Clinton-Sullivan exchange, pointing out that "soliciting revisions and feedback on a draft is plainly predecisional and deliberative." However, he rejected the claim for two emails characterized as talking points used during a press conference. Here, he noted that "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 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." Finding that the government misconduct exception did not apply to any of the disputed emails, Lamberth observed that "at bottom, these documents show State Department officials suffering the slings and arrows of abiding by [the judge'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. It 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."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-05-101COMPLAINT against U.S. DEPARTMENT OF STATE ( Filing fee $ 400 receipt number 0090-4521413) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons US Attorney for DC, # 3 Summons US Attorney General, # 4 Summons Department of State)(Fedeli, Chris) (Entered: 05/10/2016)
2016-05-102LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Fedeli, Chris) (Entered: 05/10/2016)
2016-05-10Case Assigned to Judge Royce C. Lamberth. (dr) (Entered: 05/11/2016)
2016-05-113SUMMONS (3) Issued Electronically as to U.S. DEPARTMENT OF STATE, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Consent Form)(sb) (Entered: 05/11/2016)
2016-05-184RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 5/17/2016. ( Answer due for ALL FEDERAL DEFENDANTS by 6/16/2016.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 05/17/2016., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF STATE served on 5/17/2016 (Attachments: # 1 Declaration of Cristina Rotaru)(Fedeli, Chris) (Entered: 05/18/2016)
2016-06-165ANSWER to Complaint by U.S. DEPARTMENT OF STATE.(Olson, Lisa) (Entered: 06/16/2016)
2016-07-056VACATED PURSUANT TO 8 ORDER FILED 7/12/2016.....ORDER: An answer having been filed herein in this case brought under the Freedom of Information Act, the defendant shall file any dispositive motions within 10 days of this date, or such time as the Court allows upon proper motion. Signed by Judge Royce C. Lamberth on 7/05/2016. (ad) Modified on 7/12/2016 (zrdj). (Entered: 07/06/2016)
2016-07-087Joint MOTION to Modify Order by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Fedeli, Chris) (Entered: 07/08/2016)
2016-07-128ORDER granting 7 Joint Motion to Modify. Upon consideration of the joint motion, It is ORDERED that this Court's July 5, 2016 Order (ECF 6) is hereby VACATED; and it is further ORDERED that Defendant's first production of non-exempt portions of responsive records to plaintiff shall be due by 8/5/2016; and it is further ORDERED that the parties Joint Status Report, proposing a schedule for the production of the remaining documents, and as appropriate, a proposed schedule for dispositive motions, shall be due by 8/12/2016. Signed by Judge Royce C. Lamberth on 7/11/2016. (tg) (Entered: 07/12/2016)
2016-08-129Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (Olson, Lisa) (Entered: 08/12/2016)
2016-08-1610ORDER: It is hereby ORDERED that a further Joint Status Report shall be filed by January 17, 2017, along with a proposed schedule for further proceedings herein. Signed by Judge Royce C. Lamberth on 8/15/2016. (ad) (Entered: 08/16/2016)
2016-08-16Set/Reset Deadline: A further Joint Status Report shall be filed by 1/17/2017, along with a proposed schedule for further proceedings herein. (ad) (Entered: 08/16/2016)
2017-01-1711Joint STATUS REPORT by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Fedeli, Chris) (Entered: 01/17/2017)
2017-01-2612ORDER re 11 Status Report filed by JUDICIAL WATCH, INC. Joint Status Report due by 4/18/2017. Signed by Judge Royce C. Lamberth on 1/25/17. (zlsj) (Entered: 01/26/2017)
2017-04-1813Joint STATUS REPORT by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Text of Proposed Order)(Olson, Lisa) (Entered: 04/18/2017)
2017-04-2814ORDER in light of 13 Status Report. ORDERED that the parties shall file a further Joint Status Report due by 8/24/2017 advising the Court whether further time of narrow challenges will be productive, or proposing a schedule for filing dispositive motions. Signed by Judge Royce C. Lamberth on 4/27/17. (lsj) (Entered: 04/28/2017)
2017-08-2415Joint STATUS REPORT by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Fedeli, Chris) (Entered: 08/24/2017)
2017-08-2416NOTICE OF SUBSTITUTION OF COUNSEL by Marsha Stelson Edney on behalf of U.S. DEPARTMENT OF STATE Substituting for attorney Lisa Olson (Edney, Marsha) (Entered: 08/24/2017)
2017-10-2017MOTION for Summary Judgment by U.S. DEPARTMENT OF STATE (Attachments: # 1 Declaration, # 2 Statement of Facts, # 3 Text of Proposed Order)(Edney, Marsha) (Entered: 10/20/2017)
2017-11-1718Cross MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Memorandum in Support, # 2 Statement of Facts, # 3 Text of Proposed Order)(Fedeli, Chris) (Entered: 11/17/2017)
2017-11-1719Memorandum in opposition to re 17 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Statement of Facts)(Fedeli, Chris) (Entered: 11/17/2017)
2017-12-1420Unopposed MOTION for Extension of Time to File Briefs by U.S. DEPARTMENT OF STATE (Attachments: # 1 Text of Proposed Order)(Edney, Marsha) (Entered: 12/14/2017)
2017-12-1821ORDER re 15 Status Report, nunc pro tunc entering filing dates as follows: Summary Judgment motions due by 10/20/2017. Response to Motion for Summary Judgment due by 11/20/2017. Reply to Motion for Summary Judgment due by 12/20/2017. Replies due by 1/11/2018. Signed by Judge Royce C. Lamberth on 12/18/17. (lsj) (Entered: 12/18/2017)
2017-12-1822ORDER granting 20 Motion for Extension of Time to File Briefs. Reply to Motion for Summary Judgment due by 1/10/2018. Replies due by 2/8/2018. Signed by Judge Royce C. Lamberth on 12/18/17. (lsj) (Entered: 12/18/2017)
2018-01-1023Memorandum in opposition to re 18 Cross MOTION for Summary Judgment filed by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Exhibit, # 2 Statement of Facts)(Edney, Marsha) (Entered: 01/10/2018)
2018-01-1024REPLY to opposition to motion re 17 MOTION for Summary Judgment filed by U.S. DEPARTMENT OF STATE. (Attachments: # 1 Exhibit)(Edney, Marsha) Modified link on 1/11/2018 (znmw). (Entered: 01/10/2018)
2018-01-1725NOTICE of recent decision by U.S. DEPARTMENT OF STATE (Attachments: # 1 Exhibit copy of recent decision)(Edney, Marsha) (Entered: 01/17/2018)
2018-02-0626REPLY to opposition to motion re 18 Cross MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Fedeli, Chris) (Entered: 02/06/2018)
2018-07-2427ORDER denying 17 Motion for Summary Judgment and granting in part and denying in part 18 Motion for Summary Judgment. In-Camera Submission due by 8/3/2018. Signed by Judge Royce C. Lamberth on 7/24/18. (lsj) (Entered: 07/24/2018)
2018-08-0328NOTICE of exparte submission for in camera review by U.S. DEPARTMENT OF STATE re 27 Order on Motion for Summary Judgment,, Set/Reset Deadlines (Edney, Marsha) (Entered: 08/03/2018)
2018-09-2629NOTICE of Change of Address by Marsha Stelson Edney (Edney, Marsha) (Entered: 09/26/2018)
2018-10-0230MEMORANDUM OPINION re Cross Motion 18 for Summary Judgment and Motion 17 for Summary Judgment. Signed by Judge Royce C. Lamberth on 10/1/18. (lsj) (Entered: 10/02/2018)
2018-10-0231ORDER re Memorandum Opinion 30 . Signed by Judge Royce C. Lamberth on 10/1/18. (lsj) (Entered: 10/02/2018)
2018-10-0232JUDGMENT in favor of the Plaintiff and the Defendant against the Plaintiff and the Defendant. Signed by Judge Royce C. Lamberth on 10/1/18. (lsj) (Entered: 10/02/2018)
2018-10-0333Consent MOTION for Extension of Time to Move for Attorney's Fees by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Fedeli, Chris) (Entered: 10/03/2018)
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by FOIA Project Staff
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