Case Detail
| Case Title | JUDICIAL WATCH, INC. v. U.S. DEPARTMENT OF STATE | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| District | District of Columbia | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| City | Washington, DC | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Number | 1:2015cv00688 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Filed | 2015-05-06 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Date Closed | 2018-03-29 | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Judge | Judge Rudolph Contreras | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Plaintiff | JUDICIAL WATCH, INC. | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Case Description | Judicial Watch submitted a FOIA request to the Department of State for records concerning policies put in place by the State Department to avoid conflicts of interest between former Secretary of State Hillary Clinton's personal and official interests towards foreign governments or foreign leaders as well as those pertaining to the Clinton Foundation. The agency acknowledged receipt of the request, but after it failed to respond within the statutory time limits, Judicial Watch filed suit. Complaint issues: Failure to respond within statutory time limit, Adequacy - Search, Litigation - Vaughn index, Litigation - Attorney's fees | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Defendant | U.S. DEPARTMENT OF STATE | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Documents | Docket Complaint Complaint attachment 1 Complaint attachment 2 Complaint attachment 3 Complaint attachment 4 Opinion/Order [37] FOIA Project Annotation: In another of a remaining avalanche of cases concerning various aspects of former Secretary of State Hillary Clinton's emails, Judge Rudolph Contreras has explored some interesting questions about when cabinet nominees are considered part of the deliberative process of the agency they intend to lead, as well as the privacy of domain email addresses when individual identifiers are redacted. The case involved a request from Judicial Watch, which by now has more than a dozen cases against the Department of State, for all records relating to State Department review of donations to the Clinton Foundation for potential conflicts of interest. The agency searched its Office of Legal Adviser, the Office of the Executive Secretariat, and the Retired Records Inventory Management System. The agency found 16 responsive documents. It released six documents in full, five documents in part, and withheld five documents in full under Exemption 5 (privileges) and Exemption 6 (invasion of privacy). Judicial Watch challenged the agency's search, particularly its decision to search the email accounts of Cheryl Mills and Jacob Sullivan, but not Huma Abedin. Judicial Watch questioned the agency decision to search both the records management content server in the Office of the Legal Adviser, as well as why it searched the individual files of the Assistant Legal Adviser but not those of other employees. Contreras found State had explained its decision in its opposition, noting that "the content server is not a repository of all records generated within the Office of the Legal Adviser�"it only includes files specifically uploaded. Thus, it was reasonable for State to search both the 'state-of-the-art' content server and other locations that might reasonably have contained documents that were not uploaded to the content server." The agency's opposition also explained that the Assistant Legal Adviser managed the department's ethics program and would have been the most likely staffer to have responsive records. Judicial Watch also contended the agency had used different keyword searches in searching the content server as opposed to the Assistant Legal Adviser's files. But Contreras pointed out that State's search of the content server was broader than that used for the Assistant Legal Adviser's files. He observed that "there is no reason for the Court to believe that a broader search than that agreed upon by the parties would be less likely to produce responsive documents." Judicial Watch also challenged the agency's decision not to search its email archival system. Contreras, however, accepted State's explanation that employees in the Office of the Secretary did not use that system. Judicial Watch strenuously objected to State's decision to search the emails of Mills and Sullivan, but not Abedin. State explained that "the subject matter of this FOIA request�"which concerned potential conflicts of interest between the State Department and the Clinton Foundation�"falls outside the scope of other staffers' job responsibilities." Judicial Watch argued that since Abedin had been given permission to work both at State and the Clinton Foundation it was highly likely that her emails might involve conflicts of interest issues. As to Abedin alone, Contreras agreed with Judicial Watch, noting that "with respect to Ms. Abedin, State has failed to show that it is not reasonably likely that Ms. Abedin's emails contain responsive materials. Although Ms. Abedin did not have any particular ethics training, she was simultaneously involved in both Clinton Foundation and State Department business. It is reasonable to expect that someone who had a role in both organizations would discuss the subject matter of potential ethical issues. Accordingly, the Court will order State to conduct a search of the records turned over by Huma Abedin." Turning to the exemption claims, Judicial Watch challenged the agency's decision to withhold discussions concerning Clinton's Senate confirmation hearings under the deliberative process privilege because they involved individuals who were not agency employees at that time. State responded that "these communications were made by the equivalent of State Department consultants, and pertained to the Department's decision-making process." Contreras noted that "Judicial Watch raises serious questions as to whether the documents withheld by State relating to officials' nominations fall within the scope of the deliberative process privilege." He indicated that the records concerned Clinton's ethical obligations if she became Secretary, as well as email exchanges between Mills, Sullivan, and Philippe Reines, none of whom were State employees at the time. Contreras found that "State has not adequately responded to Judicial Watch's legal contentions. Specifically, State does not adequately address whether, in its legal opinion, the subject-matter of these documents can fairly be said to relate to State Department policies and goals. The documents primarily relate to then-Senator Clinton's Senate confirmation hearings, many of them promulgated for the purpose of informing then-Senator Clinton's answers during her confirmation hearings. The Court queries whether the issues a prospective official is facing in her pursuit of public office fall within the gamut of an agency's policies such that deliberation of them is shielded by Exemption 5." Judicial Watch also contended that the records contained non-exempt factual material that should be released. State argued that disclosure of such material would chill candor in deliberations. Contreras disagreed with the agency's claims. He noted that "State's conclusory argument that, at times, factual material can reveal an agency's deliberative process does not show that it would in this case. Nor does State's chilling-effect argument hold water. Although it may be true that the possible revelation of the source of ethical questions may have a chilling effect on employees' willingness to bring those questions to the Department, it would not have chilling effects on the Department's deliberations about them. Presumably, when presented with such a potential conflict, State has a duty to assess the conflict; it cannot be chilled from doing so. Judicial Watch seeks only certain raw factual information that the State Department deliberated upon; there is nothing about the sources of potential ethical conflicts that would chill ethics lawyers' candid discussion of them. State does not argue that either the submitter of the ethics inquiry or the third party subject to that inquiry has a privacy interest in not having his or her potential speech or action disclosed. Taken to its logical extreme, State's argument would justify the shielding of all factual material that is the subject of deliberations by agency officials." State had redacted non-government email extensions other than those associated with Hillary Clinton. Judicial Watch argued that there was a public interest in knowing where these emails originated. Noting a specific problem, Contreras pointed out that since State had identified the personal email prefixes of three individuals, to now release their domain extensions as well would invade their privacy. Contreras rejected Judicial Watch's claim of public interest in the domain extensions. He observed that "the mere use of private email addresses by outsiders of the State Department does not show much of anything, much less a pattern." Regardless of the lack of a public interest, Contreras found that "mere domain extensions, however, do not trigger a substantial third-party privacy interest." Ordering the agency to disclose non-identifying domain extensions, Contreras added that "State does not show, however, that the email domain extensions contained within the documents where the email prefixes are still redacted are the types of 'bits of information' that 'can be identified as applying to that individual,' any more than the redactions themselves can be attributed to the unredacted identities of the authors."
Opinion/Order [52]Issues: Exemption 5 - Consultant privilege, Exemption 6 - Invasion of privacy, Search - Reasonableness of search FOIA Project Annotation: Judge Rudolph Contreras has ruled that records prepared for use in confirmation hearings for Hillary Clinton as Secretary of State, and Harold Koh as State's legal advisor, are protected by Exemption 5 (privileges). In so ruling, Contreras rejected Judicial Watch's argument that since neither Clinton nor Koh were officially employees of the agency at the time of their hearings their communications did not qualify as "inter- or intra-agency" records. Instead, Contreras found that the records fell within the consultant corollary exception since State shared the same goals with Clinton and Koh in supporting their nominations. Judicial Watch's original March 2015 request asked for records concerning possible conflicts of interest pertaining to Clinton's personal or charitable relationships with foreign governments and business entities. In his previous ruling, Contreras found State had conducted an adequate search for records except for those that had recently been turned over to the agency by Huma Abedin but explained that records dealing with Clinton and Koh's confirmation hearings that State claimed were protected by the deliberative process privilege raised questions about whether those records actually reflected the agency's policies and goals, or only reflected the interests of Clinton and Koh in being confirmed. The State Department conducted another search of Abedin's records and renewed its deliberative process privilege claims. Although courts have long-recognized that non-agency parties can be considered as consultants to an agency for purposes of qualifying for the deliberative process privilege, the limitations imposed by the "inter- or intra-agency" record requirement was not seriously considered until the Supreme Court's decision in Dept of Interior v. Klamath Water Users Protective Association 532 U.S. 1 (2001), where the Court ruled that the deliberative process privilege did not apply if the parties do not share the same interest. In that case, the Court concluded that discussions between the Bureau of Indian Affairs and a specific Indian tribe were not deliberative because while the agency was responsible to Indian tribes broadly the specific Indian tribe here had its own interest that differed from that of the BIA. Since Klamath, appellate courts have nibbled away at the edges of the decision. In National Institute of Military Justice v. Dept of Justice, 512 F. 3d 677 (D.C. Cir. 2008), the D.C. Circuit adopted a functional test, finding that outside experts could be considered consultants for purposes of Exemption 5 even though they had no formal relationship with the agency. And in Hunton & Williams v. Dept of Justice, 590 F. 3d 272 (4th Cir. 2010), the Fourth Circuit recognized the common interest doctrine to protect deliberations between the Justice Department and a technology company that was being sued for patent infringement. Turning to the records concerning the Clinton and Koh confirmation process, Contreras explained that "State argues that the records â€" all of which were apparently drafted by individuals who were not employed by any entity regarded as an agency under FOIA â€" qualify for protection under the deliberative process privilege. State explains that all of these documents were created to prepare prospective high-level State Department officials 'to understand relevant issues and to be ready to lead the agency upon his or her confirmation.'" By contrast, Judicial Watch argued that "Clinton's emails to State â€" and communications sent by her staff â€" might show that she asked State for assistance in juggling her potential conflicts of interest, but her emails do not show that State consulted her on any agency decision." Contreras found the consultant corollary protecting outside consultants applied here. The corollary requires that "1) the agency solicited the records from the non-agency party or there exists some indicia of a consultant relationship between the outsider and the agency, and (2) the records were created for the purposes of aiding the agency's deliberative process." Finding that State met both conditions here, he accepted as reasonable State's claims that "an agency and a nominee for a high-level agency position must and will engage in communications to align their messages, discuss logistics, and prepare the agency for new leadership. In light of the Circuit's precedents, this Court finds that the fact than an individual has been nominated to a high-level agency position suffices to trigger a consulting relationship under the consultant corollary. That relationship must extend not only to the nominee but also to those acting on behalf of the nominee." Having found that the consultant corollary applied, Contreras agreed with State that "an agency has a vested interest in preparing nominees for high-level agency positions to address potential conflicts of interests and to be ready to lead upon confirmation." He continued, observing that "an agency has an interest in preventing the upheaval and distraction that would likely result if potential conflicts were identified only after confirmation. . . Thus, to the extent that communications between an agency and a nominee bear on these matters, such correspondence is not, as Judicial Watch seems to suggest, solely in the nominee's interest or solely part of the nominee's decisionmaking process." He pointed out that the agency needed to align it nominees with a vision for the future of the agency, observing that "to expose discussions intended to align a nominee's proposed responses with an agency's existing policies might prematurely disclosure proposed policies and might create 'public confusion through the disclosure of documents suggesting reasons for policy decisions that were ultimately not taken.'" Contreras rejected Judicial Watch's suggestion that such deliberations were skewed in favor of the nominee's interests. He noted that "the Court does not believe that the fact that agency-nominee communications involve more than obviously unidirectional advice to the agency should defeat an agency's claim that the consultant corollary applies. All such communications are part of a fluid process that furthers the nominee's and the agency's shared interest in the nominee's smooth transition to power." Judicial Watch also argued that application of the consultant corollary here violated the rule established in Klamath. Contreras disagreed, pointing out that "a nominee for a high-level agency position is not an interested party seeking a government benefit at the expense of others, but the president's selection for a position who will become an agency decisionmaker so long as he or she is confirmed by the Senate."
Issues: Exemption 5 - Inter- or intra-agency record, Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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