Judicial Watch, Inc. v. Dep't of State, No. 15-646, 2018 WL 387854 (D.D.C. Jan. 11, 2018) (Kollar-Kotelly, J.)

Judicial Watch, Inc. v. Dep't of State, No. 15-646, 2018 WL 387854 (D.D.C. Jan. 11, 2018) (Kollar-Kotelly, J.)

Re: Request for records concerning requests by, and discussions about, use of certain electronic devices by former Secretary of State Hillary Clinton

Disposition: Denying plaintiff's motion for summary judgment

• Exemption 5:  "The Court concludes that the government misconduct exception does not apply to the material withheld by Defendant pursuant to FOIA Exemption 5."  The court relates that "the applicability of FOIA Exemption 5 . . . is uncontested."  "Rather, the Court shall evaluate whether[, as plaintiff claims,] a 'government misconduct' exception to FOIA Exemption 5 applies to the documents that Defendant has withheld."  The court finds that "[i]t is not clear in this circuit whether a government misconduct exception may properly be invoked in a FOIA case."  However, "[a]ssuming arguendo, for purposes of the discussion in this case, that the government misconduct exception applies to FOIA cases," the court finds that "Plaintiff's allegation does not concern any allegedly egregious discussion that Defendant withholds, but rather allegedly egregious underlying conduct."   Additionally, "[t]he Court has not found any discussion that satisfies a narrow interpretation of a government misconduct exception."  "These documents show that agency leadership apparently sought to use personal electronic devices in ways that were not customary within the agency."  "In turn, agency staff engaged in discussions of the leadership's preferences and the efforts to accommodate those preferences."  "While staff had to resolve some disagreements in the process, these discussions do not evince 'nefarious motives' or warrant a finding of 'extreme government wrongdoing.'"  "Plaintiff essentially asks the Court to make, or rely on, a determination that the Secretary's conduct constituted wrongdoing."  "But it is unnecessary to decide that issue because the discussions themselves do not rise to the level so as to trigger the exception, regardless of the lawfulness, or propriety, of the underlying conduct."
   
• Litigation Considerations, Adequacy of Search:  Regarding "Plaintiff's request to compel Defendant to search the additional emails allegedly recovered by the FBI in October 2016[,]" the court finds that "subsequent developments may have mooted this request in full or in part."  The court order defendant to file an affidavit to elaborate.