Judicial Watch, Inc. v. U.S. Department of State
Civil Action No. 2016-0885
D.D.C.Oct 2, 2018Background
- Hillary Clinton's use of a private email server as Secretary of State generated media and Congressional scrutiny after release of a Clinton–Sullivan email; Judicial Watch sought FOIA records about that exchange and the factual basis for State Dept. spokesperson John Kirby's statement that forensics found no evidence the exchange was emailed to Clinton.
- The case narrowed to 19 State Department documents (emails and talking points) created during State's effort to respond to inquiries and to comply with a judicial order releasing Clinton-related emails.
- State invoked FOIA Exemption 5 (attorney-client and deliberative process privileges) to withhold or redact substantive portions; Judicial Watch challenged the assertions as overbroad and argued the deliberative process privilege cannot shield government misconduct.
- The Court conducted ex parte review of unredacted documents and evaluated whether withheld material was (1) privileged attorney-client communications, or (2) predecisional and deliberative such that the deliberative process privilege applies; it also considered (but did not need to resolve definitively) whether the government-conduct exception to the deliberative process privilege applies in FOIA cases.
- Holding: the Court granted Judicial Watch summary judgment for 10 documents (ordered disclosure) and granted State summary judgment for 9 documents (allowing withheld redactions). The Court concluded the government-conduct exception would not override the privilege here because the records reflected compliance with a judicial order rather than government misconduct.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether withheld material is protected by the attorney-client privilege | Judicial Watch: State's attorney-client assertions are boilerplate and do not identify confidences or show legal advice; thus privilege not applicable | State: some communications included Department attorneys and therefore reflect privileged legal advice | Court: attorney-client privilege applied only to limited portions where an attorney was identified and provided legal feedback; otherwise State failed to meet its burden |
| Whether withheld material is protected by the deliberative process privilege | Judicial Watch: many documents are final talking points or post-decisional communications not predecisional/deliberative; privilege misapplied | State: talking points and internal drafts reflect predecisional, deliberative give-and-take in developing a media/response strategy | Court: privilege applies to draft and deliberative materials (nine documents) but does not apply to finalized or post-event talking points and off-hand reactions (ten documents) |
| Whether redactions were properly segregable under FOIA | Judicial Watch: portions withheld may be segregable and should be released | State: contested redactions are integral and non-segregable | Court: where material was deliberative or privileged and not reasonably segregable, redaction upheld; where privilege not shown, material ordered released |
| Whether the government-conduct exception defeats the deliberative process privilege in this FOIA case | Judicial Watch: the exception can apply when documents may shed light on misconduct and should prevent withholding | State: documents reflect ordinary internal deliberations and compliance, not misconduct; exception inapt | Court: even assuming the exception applies in FOIA, it does not apply here because documents relate to compliance with a court order, not to conceal misconduct |
Key Cases Cited
- NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (privilege incorporation into Exemption 5)
- Martin v. Office of Special Counsel, 819 F.2d 1181 (D.C. Cir.) (Exemption 5 incorporates civil discovery privileges)
- Bartholdi Cable Co. v. FCC, 114 F.3d 274 (D.C. Cir.) (agency must support privilege assertions with sufficient facts)
- Mapother v. Dep't of Justice, 3 F.3d 1533 (D.C. Cir.) (privileges construed narrowly)
- Wolfe v. Dep't of Health & Human Servs., 839 F.2d 768 (D.C. Cir.) (en banc) (narrow construction of privileges)
- Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242 (D.C. Cir.) (attorney-client privilege standard in government context)
- Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854 (D.C. Cir.) (deliberative process protects recommendations and drafts)
- Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504 (D.C. Cir.) (predecisional standard)
- Jordan v. U.S. Dep't of Justice, 591 F.2d 753 (D.C. Cir.) (definition of predecisional)
- Access Reports v. Dep't of Justice, 926 F.2d 1192 (D.C. Cir.) (recommendations by nonfinal actors are predecisional)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir.) (government-conduct exception articulated)
- Hinckley v. United States, 140 F.3d 277 (D.C. Cir.) (government-conduct exception recognized in civil discovery)
- Texaco P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d 867 (1st Cir.) (public interest exception rationale)
- Judicial Watch, Inc. v. U.S. Dep't of Homeland Sec., 736 F. Supp. 2d 202 (D.D.C.) (deliberative protection for media-response deliberations)