Seife v. Dep't of State, No. 16-7140, 2018 U.S. Dist. LEXIS 49481 (S.D.N.Y. Mar. 26, 2018) (Woods, J.)

Seife v. Dep't of State, No. 16-7140, 2018 U.S. Dist. LEXIS 49481 (S.D.N.Y. Mar. 26, 2018) (Woods, J.)

Re: Requests for records concerning press briefings given to senior officials

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

• Litigation Considerations, Adequacy of Search:  "The Court . . . concludes that the State Department should be granted a further opportunity to substantiate its claim that a search in response to the first request would be unreasonably burdensome[.]"  The court first finds that "[b]ecause an agency responding to a FOIA request is mandated to construe the request broadly, the State Department should have interpreted the . . . request as one for unredacted transcripts of each 'on background' conference, briefing, and call that took place between January 20, 2009 and July 21, 2014, regardless of whether the transcript identified by name the government official providing the briefing."  The court explains that, "as [plaintiff] has rightly observed, his request does not limit the transcripts that he seeks to those that do identify the briefers by name."  Next, "the Court affords the supplemental declaration the presumption of good faith that it must and finds that the State Department has adequately shown that any search for unredacted transcripts of background briefings containing the names of the briefers would indeed be futile [because "[defendant] clarified that the briefers' names and titles do not appear in even the initial drafts"]."  "This does not end the inquiry, however, as [plaintiff's] request also included, . . . a request for transcripts in which the briefers' names were not identified."  Regarding this portion of the request, the court finds that, "to the extent that any responsive transcripts are publicly available online, the State Department is not required to gather and produce those for [plaintiff]."  The court relates that "the State Department argues that [plaintiff's] request for transcripts of background briefings over a five-and-a-half-year period is overly broad, and a search for such transcripts would be unreasonably burdensome."  The court finds that, "[w]hile this may in fact be true, the State Department has not sufficiently established the burden that it cites."  The court finds that "[plaintiff's] request for unredacted transcripts of 'on background' briefings, conferences, and calls between January 20, 2009 and July 21, 2014 reasonably describes the records sought."  "[Plaintiff] provides the State Department with the specific form of document that he seeks – transcripts – along with the applicable date range for his request."  "Moreover, to the extent that the State Department determined that the request did not reasonably describe the records being sought, it was under the obligation to engage in a dialogue with [plaintiff] to more appropriately tailor the request."  "Furthermore, while [defendant] affirms in his supplemental declaration that a search for transcripts of background briefings not uploaded to the State Department's website would be 'incredibly burdensome,' . . . he fails to sufficiently explain how and why it would be so."  "[Defendant] provides no information regarding the total number of email accounts that would need to be searched, or the level of difficulty of, or amount of time required by, the search process itself."
  
  "The Court finds it appropriate, at this juncture, to provide the State Department with the opportunity to either conduct a search for documents responsive to the . . . request or to provide further substantiation for the agency's claim that such a search would be unreasonably burdensome."
   
• Exemption 5, Deliberative Process Privilege & Presidential Communications Privilege:  "The Court agrees with [plaintiff][]" "that the State Department has failed to carry its burden to show that the redacted information in these documents is subject to either the deliberative process privilege or the presidential communications privilege."  First, regarding the presidential communications privilege, the court finds that while "the State Department here may withhold documents that reflect agency deliberations regarding the manner in which its policies are explained to the public[,]" "[t]he information submitted in the Vaughn index and . . . Declaration is insufficient to allow the Court to determine whether a majority of the information withheld on the basis of the deliberative process privilege are in fact entitled to such protection."  The court explains that "[w]hile several of the emails appear to temporally pre-date the State Department announcements and background briefings that they relate to, some of the emails are dated the same date as the announcement to which they relate."  "Even if the emails could all be considered predecisional, the Court cannot conclude that they are deliberative[]" because "the emails' roles in the deliberative process are not apparent from the State Department's submissions."  Similarly, the court finds that, "[b]ased upon the information provided by the State Department, the Court cannot determine that the proposed talking points, draft questions and answers, and draft opening statements 'formed an essential link in a specified consultative process' or 'if released, would inaccurately reflect or prematurely disclose the views of the agency.'"
  
  Regarding the presidential communications privilege, the court finds that "[plaintiff] is correct in that the agency has not carried its burden of providing the Court with sufficient detail for it to determine that the email in question was authored in the course of advising the President."  "Neither [defendant's] declarations nor the Vaughn index indicate that the information in the email was gathered or created for the purpose of advising the President, or in the course of such advising."  "Particularly because [the writer of the email] is a 'dual hat' adviser, the State Department must show that this email was prepared in the course of advising the President, and not in the performance of some other governmental function."
  
  "The Court . . . finds it appropriate to allow the State Department to provide further substantiation of the grounds for its withholdings with respect to the information and document claimed exempt under FOIA Exemption 5[.]"
   
• Exemption 6:  The court relates that "[plaintiff] contests the redaction of the background briefers' identities, the names of Department of Defense . . . officials, and government email addresses and cell phone numbers of agency officials."  Regarding the identities of background briefers, the court finds that "[t]he State Department's submissions do not establish a substantial privacy interest subject to balancing against any public interest in disclosure."  "As the State Department explains, background briefers are senior officials who are typically experts in the policy or subject matter that they brief."  The court therefore directs defendant to "submit revised Vaughn submissions addressing . . . the identities of background briefers claimed exempt under Exemption 6[.]"  Regarding lower-level DOD employees, the court finds that, "[i]n light of the minimal public interest in disclosure, and the privacy interest held by the DoD officials in controlling the dissemination of their names, the State Department's withholdings were appropriate[.]"  Regarding email addresses and phone numbers, the court finds that "weighing even a de minimis privacy right in the email addresses with the public interest articulated by [plaintiff], the Court finds that disclosure of the redacted email domain information would not be proper."  The court rejects plaintiff's asserted "public interest[s][, specifically,] his need as a journalist to interview these officials, as well as a growing concern that senior officials attempt to evade FOIA by using private email servers in lieu of official ones."