Judicial Watch, Inc. v. U.S. Dep't of State
Judicial Watch, Inc. v. U.S. Dep't of State
Opinion of the Court
In March 2015, Plaintiff Judicial Watch submitted three Freedom of Information Act ("FOIA"),
The parties have now cross-moved for summary judgment. Dkt. 22; Dkt. 26. Those motions raise three questions: First, did the State Department properly withhold the Report of Investigation ("ROI") for former State Department employee Bryan Pagliano? Second, is there any reasonably segregable, non-exempt information in the ROI that the State Department should have released to Judicial Watch? Third, did the State Department properly redact portions of an email chain between Secretary Clinton and General David Petraeus? For the reasons explained below, the Court concludes that the answer to the first two questions is "yes," and that the answer to the third question is, in part, "yes," and, in part, "perhaps."
Accordingly, the Court will grant in part and deny in part the State Department's motion for summary judgment and will deny Judicial Watch's cross-motion.
I. BACKGROUND
Between March 6, 2015, and March 9, 2015, Judicial Watch submitted three FOIA requests to the State Department. Dkt. 22-4 at 1 (Def.'s SUMF ¶ 1). The first, dated March 6, sought records relating to Secretary Clinton's "use of a non-'state.gov' email address," including records "concerning security, classification, preservation, and compliance with the Federal Records Act and/or [FOIA]." Dkt. 22-3 at 3. Judicial Watch's second request, dated March 9, sought "communications between officials" at the State Department and White House concerning Secretary Clinton's "use of non-'state.gov' email addresses."
On October 30, 2015, the State Department "completed its search for records potentially responsive to [Judicial Watch's] requests," locating "approximately 16,900 pages" of potentially responsive documents. Dkt. 11 at 2. The parties agreed that the State Department would complete its review and production of the records by January 20, 2016,
In mid-2016, the parties each moved for summary judgment. See Dkt. 17; Dkt. 18. Among other issues, that original round of briefing raised the question whether the State Department had conducted an adequate search for responsive records. See Dkt. 18 at 5-6. On July 12, 2016, however, the FBI informed the State Department that it had "obtained certain information that may include [State Department] agency records" and indicated that it would "provid[e] this information to [the Department] for review" and "subsequent FOIA
*41processing as appropriate." Dkt. 22-3 at 44. "The FBI transferred such information to [the] State [Department]" in July and August 2016, and the Department "agreed to conduct searches of the information being transferred" for "records responsive to [two of] [Judicial Watch's] FOIA requests." Dkt. 22-2 at 24-25 (Second Stein Decl. ¶ 64). After reviewing the newly acquired documents, the State Department released two additional documents to Judicial Watch, including an email exchange between Secretary Clinton and General David Petraeus. Dkt. 22-4 at 2 (Def.'s SUMF ¶ 11). That email exchange involved a staffing issue and a recommendation regarding dealing with a foreign leader. Dkt. 22-1 at 18. Because Judicial Watch "indicated that it wishe[d]" to add "challenge[s] [to] the redactions applied" to the email exchange and to "the adequacy of [State's] supplemental search" to its initial set of challenges, the parties "propose[d] that the Court deny the pending cross-motions for summary judgment as moot" and set a new schedule for summary judgment briefing that would "encompass all of the matters ... currently at issue" in the litigation. Dkt. 21 at 1. The Court accepted the parties' proposal, see Minute Order (Oct. 28, 2016), and the parties subsequently filed the cross-motions for summary judgment that are currently before the Court, see Dkt. 22; Dkt. 26.
II. LEGAL STANDARD
The Freedom of Information Act is premised on the notion that an informed citizenry is "vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co. ,
III. ANALYSIS
A. Pagliano ROI
The State Department asserts that it properly withheld Pagliano's ROI in full under FOIA Exemptions 7(C) and 7(E). Dkt. 22-1 at 12-17. Those exemptions apply to records "compiled for law enforcement purposes," the disclosure of which "could reasonably be expected to constitute an unwarranted invasion of personal privacy,"
The Department further argues that, after "review[ing] [the ROI] on a line-by-line basis," it has determined that "there is no additional non-exempt information that may reasonably be segregated and released." Dkt. 22-1 at 20. Judicial Watch, in turn, responds that the State Department has failed to satisfy Exemption 7's threshold requirement that the ROI was "compiled for law enforcement purposes," Dkt. 26 at 8-10; that the Exemption 7(C) balancing test favors disclosure,
1. Exemption 7(C)
Exemption 7(C) protects from disclosure "records or information compiled for law enforcement purposes," but "only to the extent that" disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy."
a. Compiled for Law Enforcement Purposes
To establish that Pagliano's ROI was "compiled for law enforcement purposes," the State Department "need only 'establish a rational nexus between the investigation and one of [the Department's] law enforcement duties and a connection between an individual or incident and a possible security risk or violation of federal law.' " Blackwell v. FBI ,
The Department argues that Pagliano's ROI meets that standard because "it was created by State's Bureau of Diplomatic Security ('DS') as part of a security clearance background investigation." Dkt. 22-1 at 14 (citing Dkt. 22-2 at 29, 32 (Second Stein Decl. ¶¶ 77, 84-85)). It asserts that DS is the "law enforcement arm of State," and that the ROI is "an investigative document utilized by law enforcement ... entities ... for security clearance related purposes."
The State Department has the better of the argument. It is well established that "[b]ackground investigations conducted to assess an applicant's qualifications, such as [an agency's] clearance and investigatory processes, inherently relate to law enforcement." Morley v. CIA ,
The same conclusion holds here. In support of its position, the State Department offers the declaration of Eric Stein, the "Acting Co-Director of the Office of Information Programs and Services." Dkt. 22-2 at 1 (Second Stein Decl. ¶ 1). Stein attests that Pagliano's ROI was "created" by DS, the "law enforcement arm of State" that is responsible for "protect[ing] people, information, and property" and "conduct[ing] personnel security investigations." Dkt. 22-2 at 29 (Second Stein Decl. ¶ 76). An ROI, Stein further attests, is "an investigative document utilized by law enforcement and personnel adjudication entities within DS for the purpose of investigating the private background of an individual for security clearance related purposes and/or adjudication of suitability for a sensitive position within the U.S. Government." Id. at 29 (Second Stein Decl. ¶ 77). It is prepared as part of a "Single Scope Background Investigation" ("SSBI"), which is a "type of security clearance investigation" used "to determine whether the subject [of the SSBI] possesses sufficient reliability, trustworthiness, and ability to protect classified information and to hold a sensitive government position." Dkt. 22-2 at 32 (Second Stein Decl. ¶¶ 84-85). In other words, the State Department produces ROIs as part of a process to determine if a potential employee has any law enforcement- or security-related issues in his background that might indicate that he should not be entrusted with classified information or that he might pose a security risk to the Department.
Stein's declaration-which is entitled to a presumption of good faith, see Clemente v. FBI ,
The Court, accordingly, concludes that the State Department has demonstrated that Pagliano's ROI was compiled for law enforcement purposes within the meaning of Exemption 7.
b. Balancing
Next, the Court must determine whether release of Pagliano's ROI "could reasonably be expected to constitute an unwarranted invasion of personal privacy."
First, the privacy interest at stake is a weighty one. Pagliano's ROI was produced after a "security clearance investigation" that "require[d] an intensely personal set of inquiries into [his] life," including an examination of his "psychological conditions, alcohol consumption, [and] sexual behavior." Id. at 32-33 (Second Stein Decl. ¶¶ 85-86). As a result, his ROI contained "personal information" pertaining to his "relationships, character assessments, financial details, and medical information," as well as information pertaining to third parties interviewed by the State Department during the investigation. Dkt. 22-2 at 33 (Second Stein Decl. ¶ 87). The Supreme Court has "held 'as a categorical matter' that 'a third party's request for law enforcement records or information about a private citizen can reasonably be expected to invade that citizen's privacy," ACLU ,
On the other side of the scale, the Court must weigh "the extent to which disclosure" of the ROI would further " 'the basic purpose of' " FOIA, which is " 'to open agency action to the light of public scrutiny' " and advance " 'citizens' right to be informed about what their government is up to.' " ACLU ,
After balancing these competing interests, the Court concludes that the scale tips in favor of the State Department's decision to withhold Pagliano's ROI. First, Judicial Watch offers no reason to believe-other than its bare speculation-that the ROI might shed light on Secretary Clinton's use of the "clintonemail.com server" or "non-'state.gov' " email address. See Favish ,
The Court, therefore, concludes that State properly withheld Pagliano's ROI on the basis of Exemption 7(C).
*462. Exemption 7(E)
The State Department also invokes FOIA Exemption 7(E) to protect Pagliano's ROI. Like Exemption 7(C), this exemption requires a two-step inquiry. The first step, moreover, is the same under both provisions-that is, the Court must determine whether the records were compiled for law enforcement purposes. Because the Court has just resolved that question for purposes of Exemption 7(C), it need not repeat that analysis here.
The second step requires additional discussion, but is equally straightforward. The Court must determine whether release of those records "would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law."
Treating the "risk of circumvention of law" requirement as applicable to the disclosure of "techniques and procedures," as the D.C. Circuit has done in the past, see Blackwell ,
"It is self-evident that information revealing security clearance procedures could render those procedures vulnerable and weaken their effectiveness at uncovering background information on potential candidates." Morley ,
The Court, accordingly, concludes that the State Department's reliance on Exemption 7(E) was also justified.
3. Segregability
The Court must also consider whether the State Department has met its burden of demonstrating that there was no reasonably segregable, non-exempt information contained in the ROI that it could release in response to Judicial Watch's *47FOIA request. FOIA provides that "[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt."
The State Department has met its burden here. The Stein declaration explains that the Department "conducted a line-by-line review of the ROI and determined that no reasonably segregable, non-exempt material could be released." Dkt. 22-2 at 35 (Second Stein Decl. ¶ 91). Stein also explains that, "[b]ecause the nature of an ROI for an SSBI is to inquire into the most intimate aspects of an individual's life[,] ... the entire ROI involves privacy-sensitive material."
For its part, Judicial Watch does not meaningfully contest the adequacy or accuracy of State's segregability analysis. Rather, in a conclusory fashion, it states that "[t]here are certainly facts that could be released without invading ... Pagliano's privacy," and then requests that the Court conduct "in camera review of the [ROI]"
Accordingly, the Court will grant summary judgment to the State Department as to its withholding in full of Pagliano's ROI.
B. Email Chain
Judicial Watch also challenges the State Department's invocation of Exemptions 5 and 6 to justify its partial redaction of the email chain between Secretary Clinton and General Petraeus. Dkt. 26 at 14-16. It asserts that the email chain, which discussed potential personnel decisions, is "properly characterized" as "a few personal messages between friends" and "indicates no discussion about strategy, policy or government action" that would implicate Exemption 5's concern of countering the "chilling effect" that disclosing "policy deliberations" might have on "similar communications in the future." Id. at 15. Judicial Watch also argues that the "identification of any third party discussed as [a] subject of a personal favor between high-ranking friends ... does not constitute an unwarranted invasion of privacy" such that his or her name should be redacted under Exemption 6. Id. at 16. The Court addresses each exemption in turn.
1. Exemption 5
Exemption 5 shields 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."
The State Department explains that the "information withheld [in the email chain] contains the author's opinions and recommendations as to potential personnel appointments [at the State Department] and suggestions for an upcoming diplomatic engagement with a foreign head of state."
*49Dkt. 22-1 at 18 (citing Dkt. 22-2 at 31 (Second Stein Decl. ¶ 82)). It further asserts that the withheld material is "predecisional" because the actions discussed had not yet been taken, and it contends that release of the email chain in full would "have a chilling effect on the open and frank exchange of ideas, recommendations, and opinions that occurs when U.S. Government officials are developing a strategy for official action."
After a review of the redacted email exchange, Dkt. 26-1 at 6-7, and Stein's declaration, Dkt. 22-2 at 31-32 (Second Stein Decl. ¶¶ 82-83), the Court concludes that the State Department appropriately redacted the documents pursuant to Exemption 5. First, the Court notes that, although the email chain straddles the time before and after Secretary Clinton's appointment, the Department relies on Exemption 5 to protect only communications following her appointment. As a result, the Court is not confronted with the question whether the deliberative process privilege applies to those engaged in the transition between administrations or to nominees who are preparing to take on the duties of government. Cf. Wolfe v. Dep't of Health & Human Servs. ,
Second, the Court is unpersuaded that this email exchange "is properly characterized" as merely a "friendly correspondence" between "intimate friend[s]," Dkt. 26 at 15, that necessarily falls outside the reach of the deliberative process privilege. To the contrary, the exchange was between the Commander of the U.S. Central Command and the U.S. Secretary of State, and it involved "suggested actions to be taken toward a particular foreign head of state" and "potential personnel appointments in the Department" of State. Dkt. 22-2 at 31 (Second Stein Decl. ¶ 82). That description represents precisely the type of predecisional "agency[ ] group thinking" meant to "work[ ] out" State's policy as to two of its key responsibilities-staffing itself and interacting with foreign dignitaries. Elec. Frontier Found. ,
Third, the unredacted portions of the exchange provided by Judicial Watch corroborate Stein's description. General Petraeus, for example, "[s]trongly recommend[s]" that she take some action. Dkt. 26-1 at 6. The Court, accordingly, has no reason to doubt Stein's representation that these exchanges between senior government officials about foreign affairs and appointments fall well within the scope of the deliberative process privilege and are thus protected by Exemption 5.
The Court, therefore, concludes that State properly redacted the email exchange pursuant to Exemption 5's deliberative process privilege.
2. Exemption 6
"Exemption 6 protects information about individuals in 'personnel and medical files and similar files' when its disclosure 'would constitute a clearly unwarranted invasion of personal privacy.' " Shapiro v. U.S. Dep't of Justice ,
Judicial Watch has disclaimed any objection to State's redaction of "personal email addresses and contact information" and challenges only its decision to redact the names of "any third party discussed" in the email chain as a potential personnel appointment. Dkt. 26 at 16; see also Dkt. 28 at 14. A number of additional redactions, moreover, were covered by both Exemptions 5 and 6, and because the Court has already concluded that the Department has appropriately invoked Exemption 5, the Court need not consider whether Exemption 6 also applies to those redactions. This, then, leaves only two redactions. The first is contained in a January 14, 2009, email from General Petraeus to Secretary Clinton. In redacted form, that email says: "P.S. Any feedback on possibility of keeping [redacted] until his replacement is confirmed? As you recall this was a personal request from [redacted]. Best-Dave." Dkt. 26-1 at 7. And the second, again sent from General Petraeus to Secretary Clinton states: "Thx for making it happen [redacted]. Great news."
To determine whether the State Department properly redacted the names from those emails under Exemption 6, the Court must balance the privacy interest of the individuals with respect to the public disclosure of their identities against the public interest in that disclosure. To do so, the Court "must first determine whether ... disclosure would compromise a substantial, as opposed to a de minimis , privacy interest." Nat'l Ass'n of Retired Fed. Emps. v. Horner ,
There is little evidence or argument before the Court with respect to how to strike this balance. In its opening brief, the State Department merely asserts that "[r]elease of this information could subject these individuals to unwanted attention and harassing inquiries," Dkt. 22-1 at 19-20, and, in its reply brief, it simply adds that "Plaintiff provides no argument as to why the release of the names of personnel suggested for appointment under a different administration, more than eight years ago, would be of any public interest today," Dkt. 28 at 14. The analysis offered by Judicial Watch, for its part, is equally brief and conclusory. It merely asserts that "identification of any third party discussed as [the] subject of a personal favor between high-ranking friends in the email exchange at issue does not constitute an unwarranted invasion of privacy for purposes of FOIA." Dkt. 26 at 16.
Based on this minimal record, the Court is unable to determine whether Exemption 6 covers the two redactions. It is certainly an overstatement, on the one hand, to claim that the identity of those considered *51for appointment to public office-even eight years ago-is of no public interest. Yet, on the other hand, it is equally possible that the specific appointment discussed in the email exchange is, in fact, of no public interest. Nor can the Court assess the relevant privacy interests on the present record. Again, it is easy to imagine a set of facts that might implicate substantial privacy concerns, and it is equally easy to image a scenario under which a reasonable person would not care about a disclosure-and, indeed, might even welcome it.
The Court, accordingly, concludes that it cannot grant summary judgment in favor of either party on this issue on the present record. In order to expedite resolution of this one remaining issue, the Court will direct that the Department file a supplemental declaration addressing the specific privacy interests at stake and that it provide the Court with unredacted copies of General Petraeus's emails to Secretary Clinton dated January 10, 2009, and January 14, 2009, for in camera inspection. The Court will then permit the parties to renew their respective motions for summary judgment on this one issue. Because Judicial Watch does not object to the remaining redactions based solely on Exemption 6, which simply obscured General Petraeus's email address, the Court will grant summary judgment in favor of the State Department on that issue.
CONCLUSION
For the reasons explained above, the Court GRANTS in part and DENIES in part State's motion for summary judgment, Dkt. 22, and DENIES Judicial Watch's cross-motion for summary judgment, Dkt. 26.
The State Department also invokes FOIA Exemption 6 to justify withholding the ROI in full, but because the Court sustains the Department's action under Exemption 7, it need not consider whether this additional exemption is also available. See Roth v. U.S. Dep't of Justice ,
See, e.g. , Henderson v. Office of the Dir. of Nat'l Intelligence ,
Judicial Watch's cross-motion for summary judgment asks the Court for "in camera review of the time records ... in this case." Dkt. 26 at 17. Because no "time records" are at issue, the Court assumes that Judicial Watch meant to seek in camera review of the ROI.
Earlier in this litigation, Judicial Watch objected to the adequacy of the Department's initial search for responsive documents. See Dkt. 18 at 5 ("The Defendant has failed to meet its burden of proof regarding the sufficiency of its search."). It now concedes that the supplemental declaration submitted by the Department suffices to meet its burden on this point and that Judicial Watch "is not challenging the adequacy of Defendant's initial search for responsive records." Dkt. 26 at 7 n.1. Nor has it challenged the adequacy of the supplemental searches. The Court, moreover, having reviewed the Department's thorough declarations setting out the procedures used to effect the searches, Dkt. 17-2 (First. Stein Decl.); Dkt. 22-2 (Second Stein Decl.), concurs with the assessment that the searches were adequate. "An agency fulfills its obligations ... if it can demonstrate beyond material doubt that its search was 'reasonably calculated to uncover all relevant documents.' " Valencia-Lucena v. U.S. Coast Guard ,
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