Case Detail

FOIA Project Annotation: A federal court in New York has ruled that the Department of State properly redacted two records pertaining to the cancellation of Transportation Secretary Elaine Chao's intended trip to China under Exemption 5 (privileges) in response to a request from New York Times reporter Eric Lipton. After learning that Chao was supposed to attend a transportation forum in Beijing in October 2017, Lipton requested information about her planned trip. In April and May 2019, the State Department disclosed eight heavily redacted email chains that were part of two different families of emails. Several weeks later, the agency re-released some of the emails with additional information unredacted. The first email chain, addressing potential ethical issues, originated from Evan Felsing, a State Department official at the U.S. Embassy in Beijing and was sent to the Office of the Legal Advisor. State claimed that those heavily redacted emails were protected by both attorney-client privilege and the deliberative process privilege. The second family of emails were originated by Felsing's contact with Derek Kan, once of Chao's senior advisors, discussing who would be coming on the trip and the need for the ethics staff at both State and DOT to make sure any ethics issues were addressed. The State Department claimed that those emails were properly redacted under the deliberative process privilege. After reviewing both chains in camera, Judge Jed Rakoff agreed that they were properly redacted with two minor exceptions. He also indicated that he agreed with State that "there is a reasonable foreseeability of harm if the redacted material were to be disclosed." Finding that the attorney-client privilege applied to both chains, Rakoff noted that "as State explains the subsequent discussions in the second family 'contain confidential communications from State employees to a State attorney for the purpose of obtaining legal advice, confidential communications from a State attorney to a State employee providing legal advice, and communications between State attorneys reflecting the development of that legal advice.' The discussions in the first family do as well. The Court agrees with State's characterization of the redacted communications and it concludes that these redactions are not more extensive than necessary."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Attorney-client privilege, Segregability - Inextricably intertwined

Date Filed	Doc #	Docket Text
2019-01-23	1	COMPLAINT against United States Department of State. (Filing Fee $ 400.00, Receipt Number ANYSDC-16228536)Document filed by The New York Times Company, Eric Lipton.(McCraw, David) (Entered: 01/23/2019)
2019-01-23	2	CIVIL COVER SHEET filed. (McCraw, David) (Entered: 01/23/2019)
2019-01-23	3	RULE 7.1 CORPORATE DISCLOSURE STATEMENT. Identifying Other Affiliate Blackrock, Inc. for The New York Times Company. Document filed by The New York Times Company.(McCraw, David) (Entered: 01/23/2019)
2019-01-23	4	REQUEST FOR ISSUANCE OF SUMMONS as to United States Department of State, re: 1 Complaint. Document filed by Eric Lipton, The New York Times Company. (McCraw, David) (Entered: 01/23/2019)
2019-01-24		CASE OPENING INITIAL ASSIGNMENT NOTICE: The above-entitled action is assigned to Judge John G. Koeltl. Please download and review the Individual Practices of the assigned District Judge, located at http://nysd.uscourts.gov/judges/District . Attorneys are responsible for providing courtesy copies to judges where their Individual Practices require such. Please download and review the ECF Rules and Instructions, located at http://nysd.uscourts.gov/ecf_filing.php . (jgo) (Entered: 01/24/2019)
2019-01-24		Magistrate Judge Robert W. Lehrburger is so designated. Pursuant to 28 U.S.C. Section 636(c) and Fed. R. Civ. P. 73(b)(1) parties are notified that they may consent to proceed before a United States Magistrate Judge. Parties who wish to consent may access the necessary form at the following link: http://nysd.uscourts.gov/forms.php . (jgo) (Entered: 01/24/2019)
2019-01-24		Case Designated ECF. (jgo) (Entered: 01/24/2019)
2019-01-24	5	ELECTRONIC SUMMONS ISSUED as to United States Department of State. (jgo) (Entered: 01/24/2019)
2019-01-30		NOTICE OF CASE REASSIGNMENT to Judge Jed S. Rakoff. Judge John G. Koeltl is no longer assigned to the case. (ma) (Entered: 01/30/2019)
2019-02-11	6	AMENDED COMPLAINT amending 1 Complaint against United States Department of State.Document filed by The New York Times Company, Eric Lipton. Related document: 1 Complaint.(McCraw, David) (Entered: 02/11/2019)
2019-02-11	9	NOTICE OF COURT CONFERENCE: Initial Conference set for 2/21/2019 at 11:00 AM in Courtroom 14B, 500 Pearl Street, New York, NY 10007 before Judge Jed S. Rakoff, as further set forth in this order. (Signed by Judge Jed S. Rakoff on 2/11/2019) (jwh) (Entered: 03/21/2019)
2019-02-14	7	NOTICE OF APPEARANCE by Joseph Nicholas Cordaro on behalf of United States Department of State. (Cordaro, Joseph) (Entered: 02/14/2019)
2019-02-14		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 2/14/2019. (Kotowski, Linda) (Entered: 02/19/2019)
2019-03-13	8	ANSWER to 6 Amended Complaint. Document filed by United States Department of State.(Cordaro, Joseph) (Entered: 03/13/2019)
2019-05-08		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 5/8/2019. (Kotowski, Linda) (Entered: 05/09/2019)
2019-05-09		Minute Entry for proceedings held before Judge Jed S. Rakoff: ( Oral Argument set for 7/1/2019 at 03:30 PM before Judge Jed S. Rakoff.). (Kotowski, Linda) (Entered: 05/09/2019)
2019-05-21	10	MOTION for Summary Judgment . Document filed by United States Department of State.(Aronoff, Peter) (Entered: 05/21/2019)
2019-05-21	11	MEMORANDUM OF LAW in Support re: 10 MOTION for Summary Judgment . . Document filed by United States Department of State. (Aronoff, Peter) (Entered: 05/21/2019)
2019-05-21	12	DECLARATION of Eric F. Stein in Support re: 10 MOTION for Summary Judgment .. Document filed by United States Department of State. (Attachments: # 1 Vaughn index, # 2 FOIA request, # 3 State acknowledgment letter (Nov. 17, 2017), # 4 State release letter (Apr. 2, 2019), # 5 State release letter (May 1, 2019), # 6 State release letter (May 21, 2019), # 7 complete set of records as released)(Aronoff, Peter) (Entered: 05/21/2019)
2019-05-21	13	DECLARATION of Joel Szabat in Support re: 10 MOTION for Summary Judgment .. Document filed by United States Department of State. (Aronoff, Peter) (Entered: 05/21/2019)
2019-05-21	14	DECLARATION of Michael Bell in Support re: 10 MOTION for Summary Judgment .. Document filed by United States Department of State. (Aronoff, Peter) (Entered: 05/21/2019)
2019-06-04	15	NOTICE OF APPEARANCE by Dana Robinson Green on behalf of Eric Lipton, The New York Times Company. (Green, Dana) (Entered: 06/04/2019)
2019-06-04	16	NOTICE OF APPEARANCE by Al-Amyn Shiraz Sumar on behalf of Eric Lipton, The New York Times Company. (Sumar, Al-Amyn) (Entered: 06/04/2019)
2019-06-04	17	CROSS MOTION for Summary Judgment . Document filed by Eric Lipton, The New York Times Company.(McCraw, David) (Entered: 06/04/2019)
2019-06-04	18	MEMORANDUM OF LAW in Support re: 17 CROSS MOTION for Summary Judgment . . Document filed by Eric Lipton, The New York Times Company. (McCraw, David) (Entered: 06/04/2019)
2019-06-17	19	REPLY MEMORANDUM OF LAW in Support re: 10 MOTION for Summary Judgment . and in opposition to plaintiffs' cross-motion . Document filed by United States Department of State. (Aronoff, Peter) (Entered: 06/17/2019)
2019-06-17	20	DECLARATION of Michael Bell in Support re: 10 MOTION for Summary Judgment .. Document filed by United States Department of State. (Aronoff, Peter) (Entered: 06/17/2019)
2019-06-24	21	REPLY MEMORANDUM OF LAW in Support re: 17 CROSS MOTION for Summary Judgment . . Document filed by Eric Lipton, The New York Times Company. (McCraw, David) (Entered: 06/24/2019)
2019-07-01		Minute Entry for proceedings held before Judge Jed S. Rakoff: Oral Argument held on 7/1/2019 re: 10 MOTION for Summary Judgment . filed by United States Department of State, 17 CROSS MOTION for Summary Judgment . filed by The New York Times Company, Eric Lipton. (Kotowski, Linda) (Entered: 07/01/2019)
2019-07-05	22	NOTICE of Departure from the United States Attorney's Office and Request for Termination of Appearance of AUSA Joseph N. Cordaro. Document filed by United States Department of State. (Cordaro, Joseph) (Entered: 07/05/2019)
2019-07-09	23	MEMORANDUM ORDER granting in part and denying in part 10 Motion for Summary Judgment; granting in part and denying in part 17 Motion for Summary Judgment: For the foregoing reasons, the Court holds that State's redactions are justified under Exemption 5, subject to the two exceptions discussed above. Accordingly, each party's motion is granted in part and denied in part. Within one week of the date hereof, State must release the two small portions of the communications for which redaction is not justified. The Clerk is directed to close the entries at docket numbers 10 and 17. (Signed by Judge Jed S. Rakoff on 7/9/2019) (jwh) (Entered: 07/09/2019)
2019-09-19	24	PROPOSED STIPULATION AND ORDER. Document filed by United States Department of State. (Aronoff, Peter) (Entered: 09/19/2019)
2019-09-19		Minute Entry for proceedings held before Judge Jed S. Rakoff: Telephone Conference held on 9/19/2019. (Kotowski, Linda) (Entered: 09/24/2019)
2019-09-24	25	STIPULATION AND ORDER: NOW, THEREFORE, IT IS HEREBY STIPULATED AND AGREED by and between the parties, as follows: 1. As soon as reasonably practicable after the Court has endorsed and docketed this Stipulation and Order, the State Department shall pay to plaintiffs the sum of one thousand, eight hundred dollars ($1,800) for attorneys' fees and litigation costs. This payment shall constitute full and final satisfaction of any claims by plaintiffs for attorneys' fees and litigation costs in this matter, and is inclusive of any interest. Payment shall be made by electronic funds transfer, and counsel for plaintiffs will provide the necessary information to counsel for the State Department to effectuate the transfer. 2. Plaintiffs release and discharge the State Department and the United States of America, including its agencies, departments, officers, employees, servants, and agents, from any and all claims and causes of action that plaintiffs asserted, or could have asserted, in this litigation arising out of plaintiffs' November 15, 2017 FOIA request. 3. This action is hereby dismissed with prejudice and without costs or fees other than as provided in paragraph 1 of this Stipulation and Order, provided that the Court shall retain jurisdiction over any issues that might arise relating to the enforcement of this Stipulation and Order, and as further set forth in this stipulation. Approved. Clerk to close case. (Signed by Judge Jed S. Rakoff on 9/21/2019) (jwh) (Entered: 09/24/2019)
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