Case Detail

FOIA Project Annotation: A federal court in Virginia has ruled that the Department of State properly redacted ten documents concerning discussions of climate change policy under Exemption 1 (national security), Exemption 5 (privileges), and Exemption 6 (invasion of privacy). The Energy & Environment Legal Institute and the Free Market Environmental Law Clinic submitted joint requests to the State Department for emails and text messages between five State Department employees and individuals from four environmental advocacy groups containing a list of keywords concerning climate change. After EELI and FMELC filed suit, the State Department agreed to complete its searches within three months. For two of the individuals, however, an unexpectedly large number of responsive records were located and the State Department asked for more time to process the records for those individuals. Eventually, the State Department disclosed more than 6,500 pages with redactions. EELI and FMELC chose to challenge ten documents as representative of the agency's exemption claims. EELI and FMELC argued that they should be able to submit separate summary judgment motions. However, the court found that a previous ruling in the case finding that one summary judgment motion was sufficient was binding. Rejecting the plaintiffs' claims, the court noted that "Plaintiffs jointly filed the FOIA requests at issue. They then jointly filed this lawsuit, maintaining the same attorneys to represent them. They also requested the same relief and their interests perfectly aligned in that respect. Plaintiffs cannot attempt to evade this Court's order by reorganizing and reframing their request for two summary judgment motions." The plaintiffs argued that Exemption 1 did not apply because the documents were not classified at the time of their request. But the court pointed out that "EELI provides no support for the proposition that a document's status as 'classified' at the time of the FOIA request governs the entire process. In fact, the case law suggests that classification challenges are based on the law when the classification was made." The court upheld the agency's Exemption 5 claims as well. EELI claimed that one redacted email dealt with the response to foreign official. The court noted that "climate change is a sensitive political issue, both abroad and domestically. Therefore, when developing an official position and debating how to best approach a foreign diplomat, the Agency should be granted some shield of confidentiality." EELI also argued that a list of "climate change validators" could not be considered deliberative. The court indicated that "this list was subsequently edited and reduced before Defendant created a final list. Therefore, the draft list plainly reveals the process through which the final list was decided. Namely, it shows which individuals or organizations Defendant chose to exclude, and which ones it ultimately included." EELI contended that discussions about how to approach Congress were not inter-agency. The court explained that "the redacted portions of the emails are from emails that occurred prior to the request for advice from the-non agency. . ." State had redacted information about career discussions under Exemption 6. The court agreed with the agency that the discussions qualified as "similar files" and noted that "individuals' career strategy and personal goals and aspirations are often just as private and personal as their medical history and are therefore entitled to the same protection." The court also agreed that the list it had found could be withheld under Exemption 5 also qualified under Exemption 6. The court observed that "they are not government officials, and they are not aware that they were included on the list. Moreover, they did not reach out to the government in order to obtain a place on the list, rather, they were unwittingly selected by State Department officials as potentially helpful to the Agency's policy goals."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 6 - Personnel, medical, similar file

Date Filed	Doc #	Docket Text
2015-03-30	1	COMPLAINT against United States Department of State ( Filing fee $ 400, receipt number 14683050392.), filed by Energy & Environment Legal Institute, Free Market Environmental Law Clinic. (Attachments: # 1 Civil Cover Sheet, # 2 Receipt)(dvanm, ) (Entered: 03/31/2015)
2015-03-31	2	Summons Issued as to United States Department of State, U.S. Attorney and U.S. Attorney General (dvanm, ) (Entered: 04/01/2015)
2015-04-13	3	NOTICE of Appearance by Chaim Eliyahu Mandelbaum on behalf of Energy & Environment Legal Institute, Free Market Environmental Law Clinic (Mandelbaum, Chaim) (Main Document 3 replaced on 4/14/2015) (dvanm, ). (Entered: 04/13/2015)
2015-04-13	4	SUMMONS Returned Executed by Energy & Environment Legal Institute, Free Market Environmental Law Clinic. United States Department of State served on 4/1/2015, answer due 6/1/2015. (dvanm, ) (Entered: 04/14/2015)
2015-05-01	5	NOTICE of Appearance by David Moskowitz on behalf of United States Department of State (Moskowitz, David) (Entered: 05/01/2015)
2015-05-01	6	ANSWER to 1 Complaint, by United States Department of State.(Moskowitz, David) (Entered: 05/01/2015)
2015-05-05	7	Financial Interest Disclosure Statement (Local Rule 7.1) by Energy & Environment Legal Institute. (Hardin, Matthew) (Entered: 05/05/2015)
2015-05-05	8	Financial Interest Disclosure Statement (Local Rule 7.1) by Free Market Environmental Law Clinic. (Hardin, Matthew) (Entered: 05/05/2015)
2015-05-12	9	STATUS REPORT by Energy & Environment Legal Institute and Free Market Environmental Law Clinic and by United States Department of State. (Attachments: # 1 Proposed Order)(Moskowitz, David) (Entered: 05/12/2015)
2015-05-12	10	ORDER - it is hereby ORDERED that the Defendant shall faithfully comply with the production schedule established in the parties' Joint Status Report; and it is further ORDERED that on or before August 28, 2015, the parties shall submit a joint status report providing a proposed schedule for resolving any remaining issues.Signed by District Judge Liam O'Grady on 5/12/15. (gwalk, ) (Entered: 05/12/2015)
2015-05-14	11	SCHEDULING ORDER: Initial Pretrial Conference set for 6/17/2015 at 11:00 AM in Alexandria Courtroom 500 before Magistrate Judge Theresa Carroll Buchanan. Final Pretrial Conference set for 9/17/2015 at 10:00 AM in Alexandria Courtroom 700 before District Judge Liam O'Grady. Discovery due by 9/11/2015. Signed by District Judge Liam O'Grady on 5/14/15. (Attachments: # 1 Magistrate Consent Form, # 2 Pretrial Notice)(dper) (Entered: 05/19/2015)
2015-06-10	12	Joint Discovery Plan by United States Department of State.(Moskowitz, David) (Entered: 06/10/2015)
2015-06-11	13	Rule 16(b) Scheduling Order - Pursuant to the Rule 16(b) Conference it is ordered that 1. Upon consideration of the representations made by the parties in submissions presented, the Court makes the following rulings: a. The Joint Proposed Discovery Plan is approved and shall control discovery to the extent of its application unless modified by the Court. (see Order for complete details) Signed by Magistrate Judge Theresa Carroll Buchanan on 6/11/15. (tfitz, ) (Entered: 06/11/2015)
2015-08-10	14	MOTION to Alter Production Schedule by United States Department of State. (Moskowitz, David) (Entered: 08/10/2015)
2015-08-10	15	Memorandum in Support re 14 MOTION to Alter Production Schedule filed by United States Department of State. (Attachments: # 1 DEX A, Hackett Declaration)(Moskowitz, David) (Entered: 08/10/2015)
2015-08-10	16	Notice of Hearing Date set for September 4, 2015 re 14 MOTION to Alter Production Schedule (Moskowitz, David) (Entered: 08/10/2015)
2015-08-12		Set Deadlines as to 14 MOTION to Alter Production Schedule . Motion Hearing set for 9/4/2015 at 10:00 AM in Alexandria Courtroom 500 before Magistrate Judge Theresa Carroll Buchanan. (clar, ) (Entered: 08/12/2015)
2015-08-12		MOTIONS REFERRED to Magistrate Judge: Buchanan. 14 MOTION to Alter Production Schedule (clar, ) (Entered: 08/12/2015)
2015-08-17	17	Opposition to 14 MOTION to Alter Production Schedule filed by Energy & Environment Legal Institute, Free Market Environmental Law Clinic. (Hardin, Matthew) (Entered: 08/17/2015)
2015-08-17	18	Memorandum in Opposition re 14 MOTION to Alter Production Schedule filed by Energy & Environment Legal Institute, Free Market Environmental Law Clinic. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I)(Hardin, Matthew) (Entered: 08/17/2015)
2015-08-24	19	REPLY to Response to Motion re 14 MOTION to Alter Production Schedule filed by United States Department of State. (Attachments: # 1 DEX B, # 2 DEX C)(Moskowitz, David) (Entered: 08/24/2015)
2015-08-27	20	STATUS REPORT (Joint) by Energy & Environment Legal Institute, Free Market Environmental Law Clinic. (Attachments: # 1 Proposed Order)(Hardin, Matthew) (Entered: 08/27/2015)
2015-09-04	21	Minute Entry for proceedings held before Magistrate Judge Theresa Carroll Buchanan:Motion Hearing held on 9/4/2015 re 14 MOTION to Alter Production Schedule filed by United States Department of State. Appearances of counsel. Motion is argued and GRANTED. Order to follow. (Tape #FTR.)(tfitz, ) (Entered: 09/04/2015)
2015-09-04	22	For reasons stated from the bench, and in accord with specific rulings and instructions thereto, it is hereby ORDERED that Defendant's Motion to Alter Production Schedule 14 is GRANTED. The parties should update this Court within ninety (90) days. Signed by Magistrate Judge Theresa Carroll Buchanan on 9/4/15. (tfitz, ) (Entered: 09/04/2015)
2015-09-04	23	This matter is before the Court on the parties' Joint Status Report. Having considered the Joint Status Report, and for good cause shown, it is hereby ORDERED that the final pretrial conference currently scheduled for September 14, 2015 at 10:00 a.m. is hereby vacated; and it is further ORDERED that within ten days of any ruling on the pending Motion to Alter the Production Schedule, the parties shall file a joint status report which shall include a proposed schedule for resolving the remaining issues in this case; and it is further ORDERED that discovery in this case shall not close until 30 days after the Defendant informs the Plaintiffs that it has concluded its review and produced all responsive records to the Plaintiffs. The Court takes no position at the present time on the propriety of any specific discovery requests. Signed by Magistrate Judge Theresa Carroll Buchanan on 9/4/15. (tfitz, ) (Entered: 09/04/2015)
2015-09-14	24	STATUS REPORT (Joint) by Energy & Environment Legal Institute, Free Market Environmental Law Clinic. (Hardin, Matthew) (Entered: 09/14/2015)
2015-12-03	25	NOTICE by United States Department of State Status Report (Moskowitz, David) (Entered: 12/03/2015)
2016-03-02	26	NOTICE by United States Department of State Status Report (Moskowitz, David) (Entered: 03/02/2016)
2016-05-31	27	NOTICE by United States Department of State Status Report (Moskowitz, David) (Entered: 05/31/2016)
2016-08-29	28	NOTICE by United States Department of State Status Report (Moskowitz, David) (Entered: 08/29/2016)
2016-11-28	29	NOTICE by United States Department of State Status Report (Moskowitz, David) (Entered: 11/28/2016)
2017-02-27	30	NOTICE of Appearance by R. Trent McCotter on behalf of United States Department of State (McCotter, R.) (Entered: 02/27/2017)
2017-02-27	31	NOTICE by United States Department of State Status Report (McCotter, R.) (Entered: 02/27/2017)
2017-03-08	32	NOTICE of Appearance by Matthew Daniel Hardin on behalf of Energy & Environment Legal Institute, Free Market Environmental Law Clinic (Hardin, Matthew) (Entered: 03/08/2017)
2017-05-16	33	MOTION for Summary Judgment by Energy & Environment Legal Institute. (Attachments: # 1 Exemplar A, # 2 Exemplar B, # 3 Exemplar C, # 4 Exemplar D, # 5 Exemplar E, # 6 Exemplar F, # 7 Exemplar G, # 8 Exhibit, # 9 Exhibit)(Mandelbaum, Chaim) (Entered: 05/16/2017)
2017-05-17		Notice of Correction re 33 MOTION for Summary Judgment The signature block on the document does not match the user's login. The filing user has been notified and has been asked to either refile the document or to have the attorney whose signature block appears on the document refile the document. The filing user has been notified to file the document separately for each motion relief. Attorney to refile(clar, ) (Entered: 05/17/2017)
2017-05-17	34	MOTION for Summary Judgment by Energy & Environment Legal Institute. (Attachments: # 1 Memorandum in Support, # 2 Exemplar A, # 3 Exemplar B, # 4 Exemplar C, # 5 Exemplar D, # 6 Exemplar E, # 7 Exemplar F, # 8 Exemplar G, # 9 Exhibit, # 10 Exhibit)(Mandelbaum, Chaim) (Entered: 05/17/2017)
2017-05-18		Notice of Correction re 34 MOTION for Summary Judgment filing user has been notified to file the document separately for each motion relief in the future. The filing user has been notified to file a Notice of Hearing Date or a Notice of Waiver of Oral Argument. (clar, ) (Entered: 05/18/2017)
2017-05-18	35	TRANSCRIPT of motions hearing held on 9-4-2015 before Mag. Judge Buchanan. Court reporter Norman Linnell, telephone number 703-549-4626. NOTICE RE REDACTION OF TRANSCRIPTS: The parties have thirty(30) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vaed.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the court reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER Redaction Request due 6/19/2017. Redacted Transcript Deadline set for 7/18/2017. Release of Transcript Restriction set for 8/16/2017.(linnell, norman) (Entered: 05/18/2017)
2017-05-25	36	Consent MOTION for Extension of Time to File Response/Reply as to 34 MOTION for Summary Judgment by United States Department of State. (Attachments: # 1 Proposed Order)(McCotter, R.) (Entered: 05/25/2017)
2017-05-25	37	NOTICE by United States Department of State re 34 MOTION for Summary Judgment Joint Waiver of Hearing (McCotter, R.) (Entered: 05/25/2017)
2017-05-26	38	ORDER- it is hereby ORDERED that the Consent Motion is granted; and it is further ORDERED that on or before June 20, 2017, Defendant shall file its opposition to Plaintiff's motion for summary judgment. Signed by District Judge Liam O'Grady on 5/24/2017. (dest, ) (Entered: 05/26/2017)
2017-05-30	39	STATUS REPORT by United States Department of State. (McCotter, R.) (Entered: 05/30/2017)
2017-06-20	40	Cross MOTION for Summary Judgment by United States Department of State. (McCotter, R.) (Entered: 06/20/2017)
2017-06-20	41	Memorandum in Support re 40 Cross MOTION for Summary Judgment filed by United States Department of State. (Attachments: # 1 Exhibit Stein Declaration)(McCotter, R.) (Entered: 06/20/2017)
2017-06-20	42	Memorandum in Opposition re 34 MOTION for Summary Judgment filed by United States Department of State. (Attachments: # 1 Exhibit Stein Declaration)(McCotter, R.) (Entered: 06/20/2017)
2017-06-20	43	Notice of Hearing Date set for July 21, 2017 re 40 Cross MOTION for Summary Judgment (McCotter, R.) (Entered: 06/20/2017)
2017-06-21		Set Deadlines as to 40 Cross MOTION for Summary Judgment . Motion Hearing set for 7/21/2017 at 10:00 AM in Alexandria Courtroom 700 before District Judge Liam O'Grady. (clar, ) (Entered: 06/21/2017)
2017-06-26	44	Consent MOTION for Extension of Time to File Response/Reply as to 42 Memorandum in Opposition by Energy & Environment Legal Institute. (Hardin, Matthew) (Entered: 06/26/2017)
2017-06-26	45	ORDER granting 44 Motion for Extension of Time to File Response/Reply. Signed by District Judge Liam O'Grady on 6/26/2017. (awac, ) (Entered: 06/27/2017)
2017-06-28	46	Rebuttal Brief re 34 MOTION for Summary Judgment filed by Energy & Environment Legal Institute. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Hardin, Matthew) (Entered: 06/28/2017)
2017-07-04	47	Opposition to 40 Cross MOTION for Summary Judgment filed by Free Market Environmental Law Clinic. (Hardin, Matthew) (Entered: 07/04/2017)
2017-07-04	48	Opposition to 40 Cross MOTION for Summary Judgment filed by Energy & Environment Legal Institute. (Hardin, Matthew) (Entered: 07/04/2017)
2017-07-10	49	REPLY to Response to Motion re 40 Cross MOTION for Summary Judgment filed by United States Department of State. (McCotter, R.) (Entered: 07/10/2017)
2017-07-19		Per LO chambers motions set for 7/21/17 on the pleadings (clar, ) (Entered: 07/19/2017)
2017-08-28	50	STATUS REPORT by United States Department of State. (McCotter, R.) (Entered: 08/28/2017)
2017-08-28	51	MEMORANDUM OPINION. Signed by District Judge Liam O'Grady on 08/28/2017. (dvanm, ) (Entered: 08/30/2017)
2017-08-28	52	ORDER granting 40 Motion for Summary Judgment; denying 34 Motion for Summary Judgment. Signed by District Judge Liam O'Grady on 08/28/2017. (dvanm, ) (Entered: 08/30/2017)
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