UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC.,

Plaintiff,

v. Case No. 20-cv-124 (CRC)

U.S. DEPARTMENT OF STATE,

Defendant.

MEMORANDUM OPINION

In this Freedom of Information Act (“FOIA”) case, Plaintiff Judicial Watch, Inc. seeks

records pertaining to the U.S. Department of State’s use of CrowdTangle, a social media

analytics program capable of tracking users’ activity across multiple platforms. Judicial Watch

believes that the State Department may have misused CrowdTangle to track the social media

activity of U.S.-based journalists in 2019. The State Department has released some documents

to Judicial Watch but partially withheld others, relying primarily on the deliberative process

privilege. Both sides now seek summary judgment regarding the propriety of those

withholdings.

After reviewing the record, the Court is persuaded that all of the disputed withholdings

were proper. The State Department has demonstrated that the information in question falls

within the deliberative process privilege and that releasing it would cause foreseeable harm. The

agency is therefore entitled to summary judgment.

I. Background

Judicial Watch is a non-profit organization that “regularly requests records from federal

agencies pursuant to FOIA” and disseminates information from those records. Compl. ¶ 3. In

2019, Judicial Watch began investigating an allegation that employees of the U.S. Embassy in Kyiv, Ukraine were using CrowdTangle to monitor social media activity by several American

journalists and by Donald Trump, Jr. Pl. Mem. Opp’n to Def. Mot. Summ. J. (“Pl. Opp’n”) at 1,

ECF No. 16. According to Judicial Watch, this “surveillance began in the Spring of 2019 in

response to an investigation by U.S. journalists into President Joe Biden’s son, Hunter Biden,

who was employed by the Ukrainian based company Burisma Holdings from April 2014 until

April 2019.” Id.

To learn more about this matter, Judicial Watch submitted a FOIA request to the State

Department in October 2019, seeking the following records for the period between January 2019

and the date of the request:

1. Any and all records regarding, concerning, or related to the Department of State’s use of the CrowdTangle social media monitoring program to monitor, compile, and/or analyze the social media activity of any U.S.-based journalist, reporter, or media commentator. This request includes, but is not limited to, the following:

• Any and all records identifying the social media accounts subject to any such monitoring or analysis. • Any and all reports or analyses generated via the CrowdTangle program. • Any and all related records of communication between any official, employee, or representative of the Department of State and any other individual or entity.

2. Any and all contracts, purchase agreements, or similar records documenting any payments made by the Department of State for access to or the use of the CrowdTangle program.

Compl. ¶ 5. Judicial Watch requested that the scope of the State Department’s search include

“all unclassified and classified e-mail and record management systems utilized by” several

individuals and entities, including former U.S. Ambassador to Ukraine Marie Yovanovitch,

Deputy Assistant Secretary of State (“DAS”) George Kent, the U.S. Embassy in Kyiv, the

2 Bureau of European and Eurasian Affairs (“EUR”), the Bureau of Global Public Affairs

(“GPA”), 1 and the Office of the Legal Advisor (“L”). Id.

Judicial Watch filed this lawsuit in January 2020, alleging that the State Department had

failed to make a final determination on the FOIA request within the statutory deadline. Id. at ¶ 8.

The State Department then processed 100 responsive records, releasing five documents in full

and 95 in part. First Decl. of Eric F. Stein (“First Stein Decl.”) ¶¶ 7–9, ECF No. 14-3.

In February 2021, the State Department moved for summary judgment. Judicial Watch

filed a cross-motion for summary judgment the following month. In their motion papers, the

parties confine their dispute to withholdings in eight documents. See Pl. Opp’n at 3. Pursuant to

an order of the Court, the State Department submitted unredacted versions of two of those

documents for in camera inspection in July 2021. Both sides’ summary judgment motions are

now ripe for decision.

II. Legal Standard

In FOIA cases, an “agency is entitled to summary judgment if no material facts are

genuinely in dispute and the agency demonstrates ‘that its search for responsive records was

adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-

exempt parts of records have been disclosed after redaction of exempt information.’” Prop. of

the People, Inc. v. Office of Mgmt. & Budget,

(D.D.C. 2018) (quoting

Competitive Enter. Inst. v. EPA,

(D.D.C. 2017)).

1 The FOIA request referred to the “Bureau of Public Affairs,” but it appears that the State Department understood Judicial Watch to be referring to GPA. See Def. Mem. In Support of Mot. Summ. J. at 7, ECF No. 14-2 (discussing a responsive document “prepared by officials within the Bureau of Global Public Affairs”).

3 In determining whether any withholdings were proper, the Court must construe FOIA’s

enumerated exemptions narrowly. Nat’l Ass’n of Home Builders v. Norton,

(D.C. Cir. 2002). The government may satisfy its burden through agency declarations that

“describe[] the justifications for withholding the information with specific detail” and

“demonstrate[] that the information withheld logically falls within the claimed exemption.”

ACLU v. DOD,

(D.C. Cir. 2011). “Such declarations are entitled to a

presumption of good faith, and the court can award the agency summary judgment based solely

on the information so provided.” Judicial Watch, Inc. v. CIA,

(D.D.C.

2018). But agency declarations will not support summary judgment if the plaintiff puts forth

contrary evidence or demonstrates the agency’s bad faith. ACLU,

.

Similarly, an agency may demonstrate that it released all reasonably segregated parts of

otherwise exempt records by submitting an affidavit indicating that an agency official conducted

a review of each document and determined that the documents did not contain segregable

information. Johnson v. Exec. Office for U.S. Attorneys,

(D.C. Cir. 2002).

While the agency may not rely on conclusory statements, Mead Data Cent., Inc. v. U.S. Dep’t of

Air Force,

, 260–61 (D.C. Cir. 1977), it is entitled to a presumption that it complied

with its segregability obligation. Sussman v. U.S. Marshals Serv.,

(D.C.

Cir. 2007).

Finally, under the FOIA Improvement Act of 2016, an agency may withhold information

only if “the agency reasonably foresees that disclosure would harm an interest protected by an

exemption” to FOIA or “disclosure is prohibited by law.”

(a)(8)(A)(i). “The

foreseeable harm requirement imposes an independent and meaningful burden on agencies.”

Reporters Comm. for Freedom of the Press v. FBI,

(D.C. Cir. 2021) (cleaned

4 up). To carry this burden, an agency withholding documents under the deliberative process

privilege must provide “a focused and concrete demonstration of why disclosure of the particular

type of material at issue will, in the specific context of the agency action at issue, actually

impede those same agency deliberations going forward.”

.

III. Analysis

Judicial Watch challenges the State Department’s decision to withhold parts of eight

documents responsive to its FOIA request. Before analyzing each disputed withholding, the

Court will address three global issues.

First and foremost, the Court disagrees with Judicial Watch’s suggestion that records

related to the State Department’s use of CrowdTangle are ineligible for protection by the

deliberative process privilege and cannot be withheld on that basis.

FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums

or letters that would not be available by law to a party other than an agency in litigation with the

agency.”

(b)(5). Exemption 5 incorporates all privileges that would apply during

discovery in ordinary litigation, including the deliberative process privilege. Gellman v. DHS,

No. 16-cv-635 (CRC),

, at *11 (D.D.C. Mar. 20, 2020).

To be protected by the deliberative process privilege, a document must be both

predecisional and deliberative. Coastal States Gas Corp. v. Dep’t of Energy,

(D.C. Cir. 1980). A document is predecisional if it was “generated before the adoption of an

agency policy,” and it is deliberative if it “reflects the give-and-take of the consultative process.”

The agency can establish deliberativeness by showing “that the withheld record ‘makes

recommendations or expresses opinions on legal or policy matters.’” Gellman,

, at *11 (quoting Vaughn v. Rosen,

(D.C. Cir. 1975)).

5 Judicial Watch challenges broadly that the government’s assertions of the deliberative

process privilege in this case on the ground that the documents at issue relate to “[a] nakedly

political effort to monitor a group of U.S. citizens and journalists investigating a matter that

could cause potential embarrassment to certain government officials,” not “a legitimate agency

policy.” Pl. Opp’n at 9. However, Judicial Watch cites no authority—and the Court is aware of

none—for the proposition that predecisional and deliberative documents lose their privileged

status if the conduct discussed in those documents is somehow illegitimate or unsavory. On the

contrary, the confidentiality of internal agency deliberations may be most important when the

agency is considering actions that would be susceptible to intense criticism. Knowing that their

comments are privileged, agency personnel may be more willing to point out the faults of such

proposals before the agency’s decision is made. See Coastal States Gas Corp.,

(one purpose of deliberative process privilege is “to assure that subordinates within an agency

will feel free to provide the decisionmaker with their uninhibited opinions and recommendations

without fear of later being subject to public ridicule or criticism”). Accordingly, regardless of

whether the State Department’s use of CrowdTangle was “legitimate,” Pl. Opp’n at 9, documents

related to that issue are eligible for the protection of the deliberative process privilege—provided

they are predecisional, deliberative, and capable of causing reasonably foreseeable harm if

disclosed.

Second, the record contains an unrebutted attestation that the State Department

“conducted a line-by-line review of all the documents from which information has been withheld

and has released all reasonably segregable, non-exempt information,” excluding information that

would be meaningless without the surrounding exempt material. First Stein Decl. ¶ 18. This

evidence satisfies the State Department’s burden as to segregability, especially when combined

6 with the fact that the agency applied selective redactions instead of blanket withholdings. See

De Sousa v. CIA,

(D.D.C. 2017) (agencies “met their segregability

burdens by submitting Vaughn indexes, in combination with the attestations of their respective

declarants that documents were reviewed ‘on a line-by-line basis’ and no further segregation

would be possible”); Gellman,

, at *8 n.10 (similar). Therefore, the Court

need not place each individual document under the microscope to determine whether it contains

non-privileged material that the State Department could have separated from any information

that was properly withheld.

Third, Judicial Watch requests that the Court review the eight disputed documents in

camera. Pl. Opp’n at 12. In FOIA cases, in camera review is an option “available to the district

court if the court believes it is needed to make a responsible de novo determination on the claims

of exception.” Larson v. Dep’t of State,

, 869–70 (D.C. Cir. 2009) (internal

quotation marks omitted). “If the agency’s affidavits provide specific information sufficient to

place the documents within the exemption category, if this information is not contradicted in the

record, and if there is no evidence in the record of agency bad faith, then summary judgment is

appropriate without in camera review of the documents.”

(internal quotation marks omitted).

Therefore, where the Court can readily conclude based on the State Department’s affidavits that

a document was properly redacted, the Court will uphold those redactions without reviewing the

documents in camera. However, as detailed below, the Court has inspected two documents in

camera to aid its analysis.

Turning to the eight individual documents in question, the Court will uphold each

assertion of the deliberative process privilege. It is therefore unnecessary to reach the State

7 Department’s alternative argument that the attorney-client privilege applies to some of the

withheld information.

A. Documents 1 and 2

To begin, the State Department partially withheld two email chains between EUR

officials and attorney-advisers in L. Second Decl. of Eric F. Stein (“Second Stein Decl.”) Ex. A

at 1–2, ECF No. 20-1. According to a Vaughn index 2 attached to the State Department’s reply in

support of its summary judgment motion, both documents contain officials’ discussion of the

impact of legal provisions on the State Department’s “potential use of particular social media

analytics platforms, including CrowdTangle.” Id. at 1. This unrebutted evidence establishes that

the redacted parts of Documents 1 and 2 were integral to the “give-and-take” preceding the State

Department’s decision on its potential use of these platforms. Coastal States Gas Corp.,

. This material thus falls squarely within the deliberative process privilege.

The State Department has also shown that disclosure of both documents would cause

reasonably foreseeable harm. Although the State Department initially submitted a Vaughn index

containing only generic statements about foreseeable harm, the agency later provided a second,

more detailed Vaughn index. See Second Stein Decl. Ex. A. The revised Vaughn index explains

that disclosure of the withheld parts of Documents 1 and 2 would “discourag[e] Department

officials from reaching out to their legal counsel to discuss issues related to the Department’s

functions while also deterring Department attorneys from candidly discussing expressing [sic]

their views on sensitive legal issues.” Id. at 2. This explanation links the agency’s prediction of

harm to the specific category of deliberative material at issue—namely, discussions between

2 See Vaughn v. Rosen,

(D.C. Cir. 1973).

8 State Department attorneys and non-attorneys about policies that may raise “sensitive legal

issues.”

The D.C. Circuit recently sustained a similar withholding under the deliberative

process privilege where the agency explained the foreseeable harm at a roughly equivalent level

of detail. See Machado Amadis v. U.S. Dep’t of State,

, 370–71 (D.C. Cir. 2020)

(State Department established foreseeable harm by stating that disclosure “would discourage line

attorneys from candidly discussing their ideas, strategies, and recommendations, thus impairing

the forthright internal discussions necessary for efficient and proper adjudication of

administrative appeals” (cleaned up)); see also Reporters Comm.,

(reaffirming that

redactions in Machado Amadis were properly justified because “the government directly

articulated a link between the specified harm and the specific information contained in the

material withheld” (cleaned up)).

The record establishes that the State Department “reasonably concluded that disclosure”

of the redacted parts of Documents 1 and 2 “would likely impair the candid discussion” of

sensitive legal issues in the future. See Reporters Comm.,

. Therefore, this

material was properly withheld.

B. Document 3

Document 3 includes three emails between a GPA official and attorney-advisers in L.

Second Stein Decl. Ex. A at 3. The first two emails contain legal discussions similar to

Documents 1 and 2. The final email attaches a draft issue paper, which assesses the impact of

the Privacy Act on the State Department’s potential use of analytics platforms and provides

“additional details about the Department’s relationship with CrowdTangle.”

The State

Department “withheld the contents of all three emails.”

The Court starts with the first two

emails, before turning to the draft issue paper.

9 The Court does not doubt, nor does Judicial Watch genuinely dispute, 3 that the first two

emails in Document 3 are predecisional and deliberative. For purposes of the foreseeable-harm

inquiry, the State Department explains:

Without the comfort of knowing that their candid discussions on sensitive legal issues will remain private within the Department, State officials and attorney- advisers would foreseeably be discouraged from engaging in those important discussions in the first place, thus seriously harming the Department’s internal deliberative processes.

Second Stein Decl. Ex. A at 3. Like the agency’s articulation of foreseeable harm regarding

Documents 1 and 2, this language provides “a focused and concrete demonstration of why

disclosure of the particular type of material at issue”—internal discussions of sensitive legal

issues—“will, in the specific context of the agency action at issue, actually impede those same

agency deliberations going forward.” Reporters Comm.,

. The State Department’s

foreseeable-harm explanation for the first two emails of Document 3 largely echoes the one it

used for Documents 1 and 2, but this similarity is not surprising, nor does it indicate that the

agency has resorted to mere boilerplate. See Leopold v. U.S. Dep’t of Justice, No. 19-2796

(JEB),

, at *4 (D.D.C. July 23, 2021) (“[T]he mere recitation of similar

reasoning in showing harm does not by itself render that reasoning ‘boilerplate.’ If Defendant

can specifically and successfully argue why a given reason applies to one category, the Court

3 Judicial Watch states that it “disputes that the information contained in the withheld records reflects the internal exchange of ideas and recommendations that occurred while government officials were formulating strategies for official action in connection with the State Department’s use of CrowdTangle and other social media analytics platforms.” Pl. Resp. to Def. Statement of Material Facts ¶ 5, ECF No. 16. However, Judicial Watch cites no evidence to support its position on this factual issue. This bare denial is insufficient to raise a genuine dispute at the summary judgment stage. See Jeffries v. Barr,

(D.C. Cir. 2020) (“A properly supported motion for summary judgment may not be opposed by mere allegation or denial” (cleaned up)).

10 will not require a completely different rationale for others.”). The contents of the first two

emails in Document 3 were properly withheld.

The Court reaches the same conclusion on the draft issue paper. To be sure, the mere fact

this document is a draft does not automatically justify its withholding. A “draft” document may

be non-privileged if it is not “deliberative in nature,” or if it has lost its predecisional character

through adoption by the agency as a final product. Arthur Andersen & Co. v. IRS,

,

257–58 (D.C. Cir. 1982). Here, however, the record shows that the draft issue paper falls within

the privilege. The draft paper is predecisional because it “predates any final version of this

guidance later prepared by Department officials.” Second Stein Decl. Ex. A at 3. It is also

deliberative in nature because in preparing the issue paper, the State Department was not merely

describing “already-made and in-place policy choices,” Reporters Comm.,

, but

making forward-looking judgments about the legal framework that should guide the

development of the agency’s use of analytics technology. This project is “an authoring exercise”

of the type that the D.C. Circuit has “recognized as deliberative and editorial.”

The State Department also asserts that disclosure of the draft issue paper would cause

foreseeable harm by leading officials to “believe that every edit or comment they propose in a

draft document may be released to the public, thus curbing the candid exchange of ideas between

Department officials and curtailing creativity in the compilation and explanation of Department

policy.” Second Stein Decl. Ex. A at 3. This explanation describes the specific harm foreseen

and connects it to the draft document at issue. Moreover, the explanation rings true; “given the

high-profile and sensitive nature of” the matters that allegedly precipitated the State

Department’s monitoring of Ukraine-related social media activity, it makes perfect sense that

disclosure of predecisional legal and policy analysis in this area “would dampen the free

11 exchange of ideas within the agency.” Leopold,

, at *4; see also Reporters

Comm.,

(“unique sensitivity” of certain emails between high-level FBI officials

supported finding of foreseeable harm as to those emails). The record here provides far more

than a “cookie-cutter” assertion that release of a draft document would be harmful simply

because it would “reveal the thought and decision-making processes of the [agency] and may not

reflect the agency’s final decisions.” Reporters Comm.,

.

The Court therefore finds that all withholdings in Document 3 were proper under the

deliberative process privilege.

C. Documents 4, 5, and 6

The revised Vaughn index identifies Documents 4, 5, and 6 as “three different iterations

of the same email chain, which was circulated among various officials in EUR during March

2019.” Second Stein Decl. Ex. A at 4. The parties dispute the State Department’s partial

withholdings of six emails in the chain: (1) an email from a Kyiv-based official to a U.S.-based

colleague requesting help in tracking specific “Ukraine-focused narratives developing across

certain social media platforms during the Ukraine desk’s off-hours”; (2) a U.S.-based official’s

email suggesting how colleagues in Kyiv might use certain monitoring tools to track news

stories; (3) a Kyiv-stationed Press Attaché’s email clarifying the type of support sought; (4) an

email from DAS Kent in which he “provided additional color on the Ukraine-focused storylines

being tracked by the Kyiv desk, expressed his views on the potential importance of those

storylines both to Ukraine and the Department, and identified the social media platforms where

he believed those storylines were most likely to appear and develop”; (5) an EUR officer’s email

to Ambassador Yovanovitch, from which the State Department redacted four bullet points that

contained suggestions for “avoiding employee burnout” and “possible solutions to the difficulties

12 expressed by the Kyiv desk through the use of modified staffing models, funding strategies, and

various electronic applications and tools”; and (6) an email in which DAS Kent “expressed his

views” on the utility of certain monitoring tools and on “how and why certain news stories had

the potential to affect the Department’s operations.” Second Stein Decl. Ex. A at 4–5.

The record makes clear that these emails, if released, would expose “the give-and-take of

the consultative process” within the State Department. Coastal States Gas Corp.,

. The Court thus has no difficulty concluding that the withheld parts of these emails are

predecisional and deliberative.

The State Department also avers that full disclosure of Documents 4, 5, and 6 “would

foreseeably harm the deliberative processes used by Department officials when deciding what

techniques and procedures they can and should use to track developing news stories, by

discouraging officials from even engaging in those conversations” for fear of public exposure.

Second Stein Decl. Ex. A at 5. This statement “directly articulate[s]” the “link between the

specified harm”—i.e., potential disengagement from internal conversations about tracking news

stories—“and the specific information contained in the material withheld.” Reporters Comm.,

. The State Department has thus satisfied the foreseeable-harm requirement and

justified its partial withholding of Documents 4, 5, and 6 under the deliberative process privilege.

D. Document 7

Next, the State Department partially withheld an email exchange between the Deputy

Director of EUR’s Public Diplomacy office and a Press Attaché, which contained additional

information on the Kyiv desk’s request for monitoring assistance and conflicting views on the

merits of involving U.S.-based officers in the monitoring efforts. Second Stein Decl. Ex. A at 6.

13 Because the redacted parts of these emails contain personal views, recommendations, and

debates on potential State Department policies, the deliberative process privilege applies to them.

Whether the revised Vaughn index satisfies the foreseeable-harm requirement as to

Document 7 is a much closer call. The agency states that disclosure of Document 7 in

unredacted form would lead its personnel to “believe that every concern or recommendation they

discuss with colleagues may be released to the public, thus curbing the candid exchange of ideas

between Department officials and curtailing creativity in the formulation of Department policy.”

Second Stein Decl. Ex. A at 6. On one hand, this language is largely a recitation of “the generic

rationale for the deliberative process privilege itself” and would apply equally to many other

withholdings. Reporters Comm.,

. On the other hand, it does not require much

imagination to surmise why the State Department would foresee harm from the disclosure of the

specific information at issue. The targeted monitoring of social media was a sensitive matter,

and the record shows that there were substantive differences of opinion within the agency about

how to proceed. It would therefore seem reasonable for the State Department to “conclude[] that

disclosure would likely impair the candid discussion of” monitoring techniques “and proposals

for adjusting operations going forward.”

. Under Reporters Committee, the “context

and purpose” of Document 7 would likely be sufficient to “make the foreseeability of harm

manifest,” even without a detailed written description of the foreseeable harm.

Nevertheless, given the generic wording of the State Department’s foreseeable-harm

statement and the scarcity of controlling precedent on point, the Court exercised its discretion to

review Document 7 in camera to help determine whether releasing the unredacted document

would cause foreseeable harm. Having examined the document in its redacted and unredacted

forms, the Court is confident that the State Department’s redactions were justified. Although the

14 Court cannot describe the contents of the redacted material in specific detail (lest it defeat the

purpose of the redactions), the information withheld is not trivial; it relates to substantive,

sensitive policy matters that agency officials might reasonably hesitate to discuss if they

expected their emails to be released under FOIA. It is foreseeable that releasing this information

would harm the candor of future intra-agency discussions about similar subject matter. The

Court will therefore uphold the agency’s redactions to Document 7.

E. Document 8

Finally, the State Department partially withheld an email chain in which agency

personnel discussed a CrowdTangle analytics report. As relevant here, the agency partially

withheld the second and fifth emails in the chain, both of which include recommendations from

State Department officials. Second Stein Decl. Ex. A at 7. 4 Again, there is no genuine dispute

that the redacted material in this email chain is predecisional and deliberative; the question for

the Court is whether removing those redactions would cause foreseeable harm.

As with Document 7, the State Department provided a somewhat generic rationale for

anticipating harm from the full release of Document 8, stating that disclosure of the second and

fifth emails “would foreseeably harm the Department’s deliberative processes by discouraging

Department officials from developing creative policy solutions and sharing those

recommendations among one another, lest those deliberations should later be made public.”

Seeing this issue as another close call, the Court decided to review Document 8 in camera to

assess the foreseeability of harm, just as it did for Document 7.

4 The State Department also withheld the substance of an email containing legal analysis, which is a duplicate of an email included in Document 1. The Court has already addressed and approved this withholding.

15 Based on this review, the Court will sustain the State Department’s withholdings.

Without delving into any protected details, the Court notes that the second and fifth emails are

only lightly redacted. These redactions are carefully tailored to conceal substantive, forward-

looking recommendations and suggestions about the State Department’s use of CrowdTangle or

similar tools. As already discussed, disclosure of such internal deliberations on this sensitive and

controversial subject would cause foreseeable harm to similar deliberative processes going

forward.

IV. Conclusion

For the foregoing reasons, the Court will grant Defendant’s Motion for Summary

Judgment, and deny Plaintiff’s Cross-Motion for Summary Judgment. A separate Order shall

accompany this memorandum opinion.

Date: August 17, 2021 CHRISTOPHER R. COOPER United States District Judge

16