Judicial Watch, Inc. v. Department of State

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC., §
Plaintiff, §
v. § Civil Case No. 14-1242
U.S. DEPARTMENT OF STATE, §
Defendant. §
)
MEMORAl\IDUM OPINION

On his first lilll day in office, President Obama set a worthy standard for his

administration’s compliance with the Freedom of Information'Act:

A democracy requires accountability, and accountability requires
transparency. As Justice Louis Brandei_s Wrote, “sunlight is said to be the best of
disinfectants.” In our democracy, the Freedom of Information Act (FOIA), which
encourages accountability through transparency, is the most prominent expression
of a profound national commitment to ensuring an open government At the heart
of that commitment is the idea that accountability is in the interest of the
Government and the citizenry alike. '

[FOIA] should be administered with a clear presumption: In the face of
doubt, openness prevails. The Government should not keep information
confidential merely because public officials might be embarrassed by disclosure,
because errors and failures might be revealed, or because of speculative or
abstract fears. Nondisclosure should never be based on an effort to protect the
personal interests of Government officials at the expense of those they are
supposed to serve. In responding to requests under the FOIA, executive branch
agencies . . . should act promptly and in a spirit of cooperation, recognizing that
such agencies are servants of the public.

All agencies should adopt a presumption in favor of disclosure to renew
their commitment to the principles embodied in FOIA, and to usher in a new era
of open Government. The presumption of disclosure should be applied to all
decisions involving FOIA,

Freedom of Information Act Memorandum, 74 Fed. Reg. 4683 (Jan. 21, 2009).

But in this case, faced with one of the gravest modern offenses to government
transparency, his State and Justice Departments fell far short. So far short that the Court
questions, even now, Whether they are acting in good faith. Did Hillary Clinton use her private
email as Secretary of State to thwart this lofty goal? Was the State Department’s attempt to settle
this FOIA case in 2014 an effort to avoid searching_and disclosing the existence of_Clinton’s

missing emails? And has State ever adequately searched for records in this case?

In July 2014, six months after Clinton resigned as Secretary of State, J udicial Watch filed
this FOIA suit seeking emails from Clinton and her aides concerning the talking points former
U.N. Ambassador Susan Rice used to defend the Obama Administration’s response to the attack
on the U‘.S. Embassy in Benghazi,»Libya. compl. 1[ 5 , ECF No. l. And although it would take `
more than six months for the public to learn Clinton exclusively used a private email account as
Secretary, see Michael S. Schmidt, Hillary Clinton Used Personal Emaz`l Account at State Dept.,
Possibly Breaking Rules, N.Y. Times (Mar. 2, 2015), https://www.nytimes.com/

201 5/03/03/us/politics/hillary-clintons-use-of-private-email-at-state-department-raises-
tlags.html, department officials already knew Clinton’s emails were missing from its records.
See Rachel Bade, State Made Earlier Request for Clinton to Hand Over Emails, Politico (Feb.
16, 2016, 5:32 PM), https://www.politico.com/story/ZOl6/02/hillary-clinton-emails-state-

219341.

State played this card close to its chest. In November 2014, State told Judicial Watch it
performed a legally adequate search and concluded settlement was appropriate, despite knowing
Clinton’s emails were missing and unsearched. 10/12/ 18 Tr. 1412-7, ECF No. 53. In December
2014_the same day Clinton quietly turned over 55 ,000 pages of her missing emails-State gave

Judicial Watch a draft Vaughn index making no mention of the unsearched records. See 5/1/15

Status Report 11 3, ECF No, 16. J udicial Watch declined to take State’s word for it, requesting a
search declaration. See 5/1/15 Status Report 11 3. A few weeks later, State filed a status report
with this Court that failed to acknowledge the unsearched emails but suggested it was “possible
to . . . settle this case.‘” 12/3 l/ 14 Status Report ‘H 3, ECF No. 10. After another month of radio
silence-by then, at least three months after State realized it never searched Clinton’s emails,
and two months after Clinton gave the Department 30,490 of the 62,320 emails recovered from
her private server (she deleted the rest)_State filed another status report admitting “additional
searches for documents potentially responsive to the FOIA must be conducted” and asking for
two months to conduct these searches 2/2/15 Status Report 11`3, ECF No. ll. A month later,
Judicial Watch read the New York Times and realized what State was talking about. See` Pl.’s
Mot.` S-tatus Conf. 1 3, ECF No. 13. That story, along with reporting that Clinton’s` former Chief
of Staff Cheryl Mills and former Deputy Chiefs of Staff Huma Abedin and J ake Sullivan also
used personal email to conduct government business, see Pl.’s Mot. Status Conf. 1[ 3; Michael S.
Schmidt, In Clinton Emails on Bengh'azi, Rare Glimpse at Her Concerns, N.Y. Times (Mar. 23,
2015), https://www.nytimes.com/2015/03/23/us/politics/in-clinton-emails-on-benghazi-a-rare-

glimpse-at-her-concerns.html, exposed State’s deceit in this case.

At best, State’s attempt to pass-off its deficient search as legally adequate during
settlement negotiations was negligence born out of incompetence At worst, career employees in
the State and Justice Departments colluded to scuttle public scrutiny of Clinton, skirt FOIA, and

hoodwink this Court.

The current Justice Department made things worse. When the government last appeared
before the Court, counsel claimed “it’s [not] true to say we misled either J udicial Watch or the

Court.” 10/12/18 Tr. 1516-8. When accused of “doublespeak,” counsel denied vehemently,

feigned offense, and averred complete candor. 10/ 12/ 18 Tr. 16-17. When asked why State
masked the inadequacy of its initial search, counsel claimed that the officials who initially
responded to Judicial Watch’s request didn’t realize Clinton’s emails were missing, and that it
took them two months to “figure[] out what Was going on” after the former‘-Secretary-tumed-
presumptive-presidential-candidate delivered twelve bankers boxes of emails. 10/12/18 Tr. l4:7-
11. When asked why it took so long for State to own-up to the missing emails and to its initial
search’s deficiency, counsel cited “normal FOIA practice.” 10/12/18 Tr. -41:21`-22; see also

5/1/15 Status Report at 6, ECF No. 16 (calling this “a run-of-the-mill FOIA dispute”).

Courisel’s responses strain credul.ity. And even before this recent chicanery, the Court
found enough signs of government wrongdoing to justify discovery, including into whether
Clintori used her private email to`intentionally flout FOIA.\See` 3/29/ 16 Mem. & Order, ECF No.
39. But the Court put-off setting a specific discovery order, mindfi,il of parallel proceedings
before Judge Sullivan, see Judicial Watch, Inc. v. Dep ’t of State, No. 13-1363, and ongoing
investigations by State’s Inspector General, the Federal Bureau of Investigation, and the House
Select Committee on Benghazi. Since those inquiries concluded, the Court now orders the parties
to meet and confer to develop a discovery plan into whether Clinton used a private email to
stymie FOIA, whether State’s attempts to settle the case despite knowing its initial search was

inadequate amounted to bad faith, and whether State’s subsequent searches have been adequate.

I. DISCUSSION

With the government investigations concluded and discovery before Judge Sullivan
winding down, J udicial Watch sought to verify the adequacy and good-faith of State’s search in
this case with requests for production and depositions bearing on State’s responses to other

inquiries. See Pl.’s Notice, ECF No. 50. For its part, State argued discovery is unnecessary

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because of the discovery before Judge Sullivan and the additional information made public since
March 2016. See Def.’s Notice, ECF No. 51. Today the Court orders the parties to develop a
discovery plan limited to three issues: whether Clinton used a private email to evade FOIA,
whether State’s attempts to settle the case despite knowing the inadequacy of its initial search
constituted bad faith, and whether State’s subsequent searches for responsive records have been

adequate.

Although “[d]iscovery in FOIA is rare,” Baker & Hostetler LLP v. Dep ’t of Commerce,
473 F 3d 312, 318 (D. C. Cir 2006), “[t]he major exception.. .is when the plaintiff raises a
sufficient question as to the agency’ s good faith in processing documents.” Landmark Legal
Founa'. v. E.P.A., 959 F. Supp. 2d 175, 184 (D.D.C. 2013) (quoting U.S. Dep’t of Justice, Guide
to the Freedom of Information‘Act 812 (2009)). In these.cases, discovery verifies the government
adequately searched for responsive records. See Weisberg v. We_bster, 749 F.2d 864, 868 (D.C.

Cir. 1984).

But in an even rarer subset of these cases, the government’s response to a FOIA request
smacks of outrageous misconduct. And these cases merit additional discovery into the
government’s motives. E.g., Judicial Watch, Inc. v. Dep ’t of Commerce, 34 F. Supp. 2d 28, 41
(D.D.C. 1998); see DiBacco v. U.S. Army, 795 F.3d 178, 192-93 (D.C. Cir. 2015); cf. Flowers v.

I.R.S., 307 F. supp. 2d 60, 71 (D.D.C. 2004).

This is one of those cascs. The Court takes no pleasure questioning the intentions of_ the
nation’s most august executive departments But it still remains unknown whether Clinton used a
private email to duck FOIA requests. Indeed, that is the focus of the remaining discovery before
Judge Sullivan. See Mem & Order, Judicial Watch v. U.S. Dep ’t of State, No. 13-1363, at 12

(D.D.C. May 4, 2016), ECF No. 73. State makes much of former FBI Director James Comey’s

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response when Congressman Ron De$antis asked if Clinton used her private email to flout
FOIA: “I can’t say that. Our best information is she set it up as a matter of convenience.” See
Def.’s Notice Prop. Order 10, ECF No. 51 (citing Oversight of the State Départment.' Hearing
Before the H. Comm. on Oversight & Gov ’t Reform, 114th Cong. 20 (2016)). But that’s not quite
the full-throated refutation State makes it out to be. Rather, telling Congress-under penalty of
perjury_what he couldn’t say for sure was an understandably equivocal assessment of the
evidence at the time. It was not a conclusive repudiation of what many people familiar with the
Presidential Records Act have long Wondered. Take the very first public story about Clinton
using a private email for official business, long before the public knew its extent: Wh`en an easily l
overlooked March 2013 hack of Clinton-confidante Sidney`Blumenthal’s AQL account exposed
an`official email from Clinto`n’s private account, a Gawker article speculated it was a one-off
“attempt to shield her communications with Blumenthal from the prying eyes of FOIA
requesters.” John Cook, Hacked Emails Show Hillary Clinton Was Receiving Advice ata Private
Email Accountfrom Banned, Ubama-Hating Former Stajj?er, Gawker (Mar. 20, 2013, 3:39 PM),
http://gawker.com/5991563/hacked-emails-show-hillary-clinton-was-receiving-advice-at-a-
private-email-account-from-banned-obama-hating-former-staffer. Or take Abedin’s response
when State’s Executive Secretary suggested Clinton use a government Blackberry so her email
“would be subject to FOIA requests”: “doesn’t make a whole lot of sense.” E-mail from Huma
Abedin to Stephen D. Mull & Cheryl D. Mills (Aug. 30, 2012, 5: 17 PM), appended to Pl.
Judicial Watch’s Reply Supp. Mot. Disc., Judicial Watch, Inc. v. U.S. Dep ’t of State, No.~13-
1363 (D.D.C. Jan. 22, 2016), ECF No. 51-3. Even more telling is the State Department Inspector
General’s conclusion that although dozens of department officials emailed Clinton’s personal

account, the employees responsible for FOIA compliance didn’t know the account existed.

Office of Inspector Gen., Evaluation of the Department of State’s FOIA Processes for Requests
Involving the Office of the Secretary 14-15 (2016), https://www.stateoig.gov/system/files/esp-

16-0i.pdf.

Nor can the Court blame Judicial Watch for questioning whether State’s attempts to settle
the case while knowing it had not searched Clinton’s missing emails_and continuing after State
recovered the emails-was an intentional effort to block their release. Especially since State’s
counsel came close to admitting as much at the Court’s last hearing.4 Counsel averred there was
nothing wrong With State’s attempt to pass-off its initial search as legally adequate since, “at the
time,” the Department believed “items not in State’s possession d[id] not need to be searched.”

- 10/12/ 18 Tr. 16111-16. That admission is significant for two reasons: Factually, it implies State
thought settling this case would absolve the Department of any duty to search Clinton’s missing
emails in response to this request. And legally, it is wrong. T_hough agencies need not
retrospectively search records they failed to retain, e.g. , SafeCara' Servs., Inc. v. S.E.C., 926 F.2d
1197, 1201 (D.C. Cir. 1991), agencies violate FOIA when they fail to search records an
employee improperly secreted from the agency’s control. Judicial Watch, Inc. v. U.S. Dep ’t of
Commerce, 34 F. Supp. 2d 28, 42-44 (D.D.C. 1998); see also Kissinger v. Reporters Comm. for
Freea'om of the Press, 445 U.S. 136, 159 (1980) (Brennan, J., concurring in part and dissenting
in part) (noting the maj ority’s suggestion “that an agency would be improperly withholding
documents if it failed to take steps to recover papers removed from its custody deliberately to

evade an [s_ic] FOIA request”).

Did State know Clinton deemed the Benghazi attack terrorism hours after it happened,
contradicting the Obama Administration’s subsequent claim of a protest-gone-awry? See E-mail

from H, hrod17@clintonemail.com, to Diane Reynolds (Sept. 11, 2012, 11:12 PM),

https://benghazi.house.gov/sites/republicans.benghazi.house.gov/files/doc_uments/
Tab%2050.pdf; see also Nick Gass, Chelsea Clinton ’s Secret Ia'entity, Politico (Mar. 5, 2015,
7:57 AM), https://www.politico.com/story/20 l 5/03/chelsea-clinton-diane-reynolds-secret-email-
115786 (establishing Diane Reynolds as an email pseudonym for Chelsea Clinto'n). Did State ‘
know Clinton sent or received top-secret information through her private email? See Statement
by FBI Director J ames B. Comey on the Investigation of Secretary Hillary Clinton’s Use of a
Personal E-Mail System (July 5, 2016), https://www.fbi.gov/news/pressrel/press-
releases/statement-by-fbi-director-james-b-comey-on-the-investigation-of-secretary-hillary-
clinto`n2019siuse.-of-a-personal`-e-mail-system (noting the FBI recovered eight email chains from
Clinton’s server containing top`-secret information). Did the Department merely fear what might
be found? Or was State’s bungling just the unfortunate result of bureaucratic `redtape and a
failure to communicate? To preserve the Department’s integrity, and to reassure the American
people their government remains committed to transparency and the rule of law, this suspicion

cannot be allowed to fester.

Nor is the government correct that J udicial Watch’s proposal mimics information already
made public. As the government acknowledged at the recent hearing, J udicial Watch’s request
extends to all Office of the Secretary employees. See 10/12/18 Tr. 19:3-6, 36:22-24. And
according to State’s Obama-era website, that includes not only the Secretary, her chief of staff,
and her deputy chief of staff, but also her secretary, executive assistant, two special assistants,
scheduler, staff assistant, and two personal assistants See Bareaus/Ojj‘ices Reporting Directly to
the Secretary, U.S. Dep’t St., https://2009-2017.state.gov/s/. To be sure, the government’s
investigations and scores of lawsuits examined the emails Clinton turned over to State, e.g.,

Leopola' v. Dep ’t of State, No. 15-123 (Contreras, J.), the thousands more the FBI resurrected by

forensically searching Clinton’s private server, e.g., Leopold v. Dep ’t of Justice, No. 15-2117
(Moss, J.), and the thousands more the FBI recovered during an unrelated investigation into
Anthony Weiner. E.g., Judicial Watch, Ine. v. Dep 't of State, No. 15-684 (Howell, J.).l But State
does not identify any comparable examination of records from other Office of the Secretary
members In fact, State even concedes it has yet to search emails Mills, Abedin, and Sullivan
turned over in August 2015. See Def.’s Notice Prop. Order 21n.1. Moreover, the Court is unaware
of any public information shedding light on State’s attempts to settle this case in late 2014 and
early 2015. And though the parties must avoid duplicating the discovery already taken before
Judge Sullivan into Clinton’s motives, prior discovery before another judge does not per se

preclude additional evidence discoverable under this`Court’s independent judgment

II. CONCLUSION

To see if it can rule out egregious government misconduct and vindicate the public’s faith
in the State and Justice Departments, the Court orders the parties to meet and confer to plan
discovery into Whether Clinton used a private email to stymie FOIA, Whether State’s attempts to
settle the case in late 2014 and early 2015 amounted to bad faith, and whether State’s subsequent
searches have been adequate. The parties are to submit a proposed plan and schedule for

discovery within ten days. Once discovery ends, the Court will determine the adequacy of State’s

1 The FBI’s efforts were imperfect, since the FBI could not recover all the emails Clinton deleted. When last
appearing before the Court, State strained to transplant into this case another court’s conclusion under the Federal
Records Act “that the FBI has exhausted all imaginable investigative avenues” to recover still-missing emails
Judicial Watch, Inc. et al. v. Tillerson, 293 F. Supp. 3d 133, 31 (D.D.C. 2017) (Boasberg, J.). Taking no position on
the merits of that conclusion, the Court notes first that the Federal Records Act employs a very different Standard
than FOIA, requiring agencies take only more-than-minimal action to remedy federal record removal or destruction,
see Judicial Watch, Inc. et al. v. Tillerson, 156 F. Supp. 3d 69, 76 (D.D.C.) (Boasberg, J.) (citing Armstrong v. Bush,
924 F.2d 282, 296 (D.C. Cir. 1991)), rev 'd & remanded on other grounds, 844 F.3d 952 (D.C. Cir. 2016), and
second that Judicial Watch appealed the decision to the D.C. Circuit, which heard argument last month. Judicial
Watch, lnc. v. Pompeo, No. 17-5275.

searches and set a further schedule for the submission of Vaughn affidavits and dispositive

motions An accompanying order follows

Date: December _<¢,2018 ZU C. w

Royce C. Lamberth
United States District Judge

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