Judicial Watch, Inc. v. Dep't of State, No. 15-0688, 2017 WL 456417 (D.D.C. Feb. 2, 2017) (Contreras, J.)

Judicial Watch, Inc. v. Dep't of State, No. 15-0688, 2017 WL 456417 (D.D.C. Feb. 2, 2017) (Contreras, J.)

Re: Request for records concerning former-Secretary of State Hillary Clinton and Clinton Foundation

Disposition: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search: The court holds that "State's search was reasonable in most respects." "However, [plaintiff] is correct that State should have searched the records produced to the State Department by Ms. Abedin, so the Court will order State to do so." The court first finds that "State's declaration from a qualified declarant . . . shows that [it] determined which offices to search based on [its] familiarity with the request and records systems." "Once [defendant] identified the places reasonably likely to contain responsive materials – namely, the Office of the Legal Adviser, the Office of the Executive Secretariat, the Retired Records Inventory Management System, and categories of non-state.gov emails – employees knowledgeable with the relevant document systems conducted searches using a list of terms, almost all of which were agreed upon by the parties." Addressing plaintiff's arguments, "[t]he Court finds that State adequately explained" seemingly overlapping searches, plaintiff's concern over search terms was misplaced because "the parties agreed to the search terms that State used[,]" defendant adequately explained why some offices were not searched and defendant "need only provide sufficient detail to show that [it] searched all places where responsive material is reasonably likely to be located," and "the staffers that Plaintiff identifies as potential sources of responsive material are not involved with [the requested material and] it was not reasonably likely that these staffers' emails would have contained responsive materials."
   
• Exemption 5, Deliberative Process Privilege & Litigation Considerations, "Reasonably Segregable" Requirements: First, concerning "documents primarily relat[ing] 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 will deny the cross-motions for summary judgment, but allow the parties to move for renewed motions for summary judgment after they are able to more fully brief the issue." "The parties may also further supplement the factual record to provide context to these documents so that the Court may have a more clear understanding of whether the deliberative process privilege – or any other FOIA exemption – applies." The court further explains that some of the information "withheld concern[s] confirmation hearings, which, by definition, occurred prior to officials assuming their positions at the State Department." "They were communications made by and to potential State Department officials and nominees as advice for Senate confirmation hearings." Second, regarding segregability, the court finds 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 sources 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 deliberation about them."
   
• Exemptions 6 & 7(C): "In light of the strong presumption in favor of disclosure, the Court will order the release of email domain extensions that, based on previous releases, could not be used to infer the full email addresses . . ., but grant State's motion for summary judgment on the basis of withholding for personal privacy in all other respects." First, "[b]ecause [plaintiff] does not dispute that disclosure of the email addresses would trigger a substantial – in other words, more than a de minimis . . . – privacy interest, . . . the issue before the Court is whether the third-party privacy interests of the owners of the addresses are outweighed by the public's interest in the information." The court finds that "[t]he public does not have a significant interest in the email addresses contained within the redacted emails." "[Plaintiff] freely admits – even highlights – that these emails were used before the users were employed at the State Department." "[Plaintiff] does not establish any connection between the use of private email servers by prospective employees – who, presumably, did not even have a state.gov email address – and use of private email servers while in office." Second, the court finds that "[m]ere domain extensions, however, do not trigger a substantial third-party privacy interest."