285 F. Supp. 3d 249
D.C. Cir.2018Background
- Judicial Watch filed a FOIA request to State for records and communications (2009–2013) about Hillary Clinton or staff seeking approval to use iPads/iPhones and about use of unauthorized electronic devices.
- The Court previously granted in camera review of portions of documents withheld under FOIA Exemption 5 (deliberative process privilege) and ordered State to submit an affidavit regarding control over emails recovered by the FBI in Oct. 2016.
- State submitted 13 documents for in camera review and an affidavit addressing agency control and processing of the October 2016 collection; parties were allowed to renew summary-judgment motions but did not.
- The disputed withheld material broadly comprised internal discussions: technology options, officials’ preferences, security risk assessments, staff recommendations, and actions of officials/staff.
- Plaintiff invoked a "government misconduct" exception to overcome Exemption 5, arguing the withheld deliberative material would shed light on alleged misconduct (use of unauthorized devices).
- The Court conducted in camera review and required State to file an affidavit confirming whether it processed and posted nonexempt records from the October 2016 FBI collection and whether any records were withheld.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a government-misconduct exception to FOIA Exemption 5 applies here | The deliberative privilege is vitiated because documents may reveal misconduct (unauthorized device use) | Exemption 5 applies; no established basis to override privilege here | Assumed arguendo exception might exist but held Plaintiff did not meet the high bar; exception does not apply |
| Whether withheld deliberative contents show "extreme" wrongdoing sufficient to overcome privilege | Withheld deliberations concern conduct (device use) that amounts to government wrongdoing | Withheld material consists of routine internal deliberations addressing preferences and security concerns, not nefarious discussions | Court found documents revealed staff accommodating leadership preferences, not discussions evidencing nefarious motives or extreme wrongdoing; privilege stands |
| Whether Plaintiff is entitled to summary judgment based on in camera review | Requests judgment releasing withheld material | State defends withholdings under Exemption 5 and submitted documents for in camera review | Denied Plaintiff’s motion for summary judgment in full after in camera review |
| Whether State must search and produce emails from FBI’s Oct. 2016 collection | Seeks supplemental search of collection supposedly recovered by FBI | State says it received collection, agreed to process non-duplicative records and planned to post nonexempt records; control and processing govern FOIA coverage | Court ordered State to file affidavit confirming whether review/posting was completed and whether any records were withheld; Plaintiff to respond whether matter is resolved or additional relief is sought |
Key Cases Cited
- Dep't of the Air Force v. Rose, 425 U.S. 352 (1976) (FOIA’s disclosure purpose, exemptions construed narrowly)
- U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136 (1989) (FOIA covers only agency records the agency controls at time of request)
- Milner v. Dep't of Navy, 562 U.S. 562 (2011) (FOIA exemptions are exclusive and must be narrowly construed)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (discusses deliberative process privilege; language about misconduct exception not binding in FOIA context)
- Burka v. Dep't of Health & Human Servs., 87 F.3d 508 (D.C. Cir. 1996) (factors for determining agency control over records for FOIA)
- Judicial Watch, Inc. v. Fed. Hous. Fin. Agency, 646 F.3d 924 (D.C. Cir. 2011) (agency control at time of request governs FOIA coverage)