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Jud. Watch, Inc. v. U.S. Dep't of State, No. 15-687, 2021 WL 3363423 (D.D.C. Aug. 3, 2021) (Boasberg, J.)


Jud. Watch, Inc. v. U.S. Dep't of State, No. 15-687, 2021 WL 3363423 (D.D.C. Aug. 3, 2021) (Boasberg, J.)

Re:  Request for emails sent by former Secretary of State Hillary Rodham Clinton

Disposition:  Granting defendant's motion for summary judgment

  • Litigation Considerations, Adequacy of Search:  "At the outset, the Court notes that the recovery of Clinton's emails has been a high-profile endeavor, which received an unprecedented amount of media attention."  "Given the stakes, it is unsurprising that State and the FBI would have 'already taken every reasonable action to retrieve any remaining emails' . . . such that 'no imaginable enforcement action' would surface more emails."  The court finds that "it is not clear what more Defendant could reasonably have done to locate responsive records to the request."  "The Court recognizes that the [Federal Records Act] and FOIA do not serve identical functions; however, the relevant question here is whether the Department reasonably searched the 'files likely to contain responsive materials.'"  "Plaintiff’s objection that Defendant 'has never undertaken a search of its own records system for responsive records' – since it did not search its own email systems for correspondence with Clinton – is similarly unavailing."  "State's decision not to further search its own records was reasonable given that any non-duplicative emails were unlikely to be found."  "All of this digging notwithstanding, it is of course conceivable that a few more responsive records might be found from additional spadework."  "'It is well established,' however, 'that the reasonableness of a FOIA search does not turn on "whether it actually uncovered every document extant."'"  "Plaintiff correctly notes that a small number of additional responsive emails were shared with State and produced in 2017, 2019, and 2020, . . . but those productions do not suggest that more documents are necessarily likely to be found, . . . nor must Defendant's search locate every possible responsive document."  "Enough is enough."
  • Exemption 5, "Inter-Agency or Intra-Agency" Threshold & Deliberative Process Privilege:  First, regarding "emails including 'recommendations, assessments, and evaluations' about potential hiring and staffing," the court finds that "[t]hese kinds of records which offer opinions, assessments, and questions about possible future hiring decisions are precisely the type protected under the deliberative-process privilege."  Second, regarding "draft documents and talking points," which include "1) draft documents and associated discussions or edits and 2) draft talking points for potential use by Clinton or other officials in conversations with members of Congress, foreign-government officials, and others," the court finds that "[o]pinions, recommendations, and other suggestions sent by email in relation to drafts or policy proposals are also canonical examples of materials protected by the deliberative-process privilege."  "The withholding of talking points is somewhat more complicated, but ultimately those at issue here clearly fall within the privilege."  The court finds that "there is no evidence to indicate that these talking points were intended for 'actual use during the call[ ]' or that the call was even scheduled."  "These talking points are thus 'predecisional' since they were drafted in advance of possible comments with no indication that they were the exact points the Secretary or other officials employed, or that there was a plan for them to be used at all."  "These points were also generated as part of the deliberative process of lower-level officials helping the Secretary and others determine what they might say."  "If such draft points were disclosed, junior officials might be 'less likely to address difficult or controversial issues for fear that such issues would be emphasized for the public, . . . [which might] lead to less informed and less prepared senior officials.'"  Finally, regarding "certain records [that] were withheld because they relate to 'diplomatic and foreign policy matters' that officials would 'be unable to candidly discuss . . . if they believed the content of those discussions . . . would later be released to the public,'" the court finds that "the descriptions that State has provided in the Vaughn Index indicate that the withheld records were deliberative materials generated 'in the course of formulating foreign policy.'"  "They include, among other records, emails discussing the development of policy towards Israel, South Asia, and Afghanistan . . . ; emails where officials offered analyses and opinions on public messaging regarding the Middle East, Afghanistan, and Pakistan . . . ; assessments of calls with foreign-government officials . . . ; and emails discussing potential outreach to foreign-government officials."  "These and other withheld records reflect the deliberative process of helping the Department 'formulate its position' on key areas of foreign policy, messaging, and outreach . . . through 'the give-and-take of the consultative process' between former Secretary Clinton and other Department officials."

    Separately, the court relates that "six of the emails that State withheld were sent to or from individuals not in the U.S. government."  "Two were from outside individuals offering recommendations on how Clinton should approach aspects of upcoming foreign travel . . . ; one was an email with recommendations from the outgoing chair of a committee in an international organization . . . ; two were communications with potential Department personnel about areas of work and the confirmation process . . . ; and one was an email with the chair of a federal advisory committee."  Turning to the "'consultant corollary,'" the court finds that "[t]he emails at issue here either contained recommendations solicited from the Department or arose in the context of a consultative relationship – such as with members of an advisory committee or an international organization of which the U.S. was a part."  "These communications also aided State in its deliberative processes of preparing for foreign travel, staffing itself, and other core policymaking activities."  "These emails were thus appropriately withheld despite involving non-governmental parties."

    Finally, regarding plaintiff's foreseeable harm argument, the court finds that "Plaintiff's FOIA request, conversely, was submitted in 2015, when this 'foreseeable harm' standard was not yet law."
  • Litigation Considerations, In Camera Inspection:  Contrary to plaintiff's assertions, the court finds that "there is no need for in camera review given the specific information already provided in support of the exemptions."  "Plaintiff makes no allegation that Defendant either acted in bad faith or provided reasons inconsistent with the record."  "The information contained in the declarations and the Vaughn Index is also sufficiently specific as to why each withheld record falls under Exemption 5, as it explains the type of record and the potential harm to different government functions that could result from release."
  • Litigation Considerations, "Reasonably Segregable" Requirements:  The court relates that "State attests that it has 'conducted a careful, line-by-line review of each document' and determined that no further material can be released."  "It also submitted a Vaughn Index explaining why the relevant portions of records were withheld."  The court finds that "Defendant's job is done."
Court Decision Topic(s)
District Court opinions
Exemption 5
Exemption 5, Deliberative Process Privilege
Exemption 5, Inter-Agency or Intra-Agency Threshold Requirement
Litigation Considerations, Adequacy of Search
Litigation Considerations, In Camera Inspection
Litigation Considerations, “Reasonably Segregable” Requirements
Updated November 5, 2021