Brown v. Department of State

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

DAVID W. BROWN,

Plaintiff

v. Civil Action No. 1:15-01459 (CKK)

DEPARTMENT OF STATE,

Defendant.

MEMORANDUM OPINION

(July 12, 2018)

This is a Freedom of Information Act (“FOIA”) action. Plaintiff alleges that copies of

former Secretary of State Hillary Clinton’s e-mails were, for a time, stored on flash drives in a safe

inside the law office of her private attorney, David Kendall of Williams & Connolly, LLP. See

Compl., ECF No. 1, at ¶¶ 8-10. Through this lawsuit, Plaintiff seeks from Defendant, the United

States Department of State, “all records about [the] decision” to allow “David Kendall to maintain

potentially classified State Department records at his [law] firm.” Id. at ¶ 12.

After Defendant made a series of rolling productions of documents to Plaintiff, the parties

filed cross-motions for summary judgment. One of the issues the parties disputed in their cross-

motions was the adequacy of the State Department’s search for responsive records. After Judge

Amy Berman Jackson remanded a nearly identical case (James Madison Project, et al., v.

Department of State, No. 15-cv-1478) back to the State Department to conduct further searches,

the Court denied both parties’ motions for summary judgment in this case without prejudice. See

Jan. 31, 2017 Order, ECF No. 32. The Court held that because Defendant had been ordered to

conduct additional searches and prepare additional declarations with respect to the FOIA request

in the matter before Judge Jackson—which Defendant had treated as identical to the request in this

case—it only made sense for Defendant to provide those same documents and declarations to the

Plaintiff in this case as well, and for the parties to then brief summary judgment again after that

had occurred. Id. at 3. After the Court’s Order, Defendant made additional rolling productions to

Plaintiff while the parties filed intermittent Joint Status Reports.

The parties have now filed a Joint Status Report in which they represent that no further

document productions need occur in this case, and that the Court need not issue an opinion on the

adequacy of Defendant’s searches. See Joint Status Report, ECF No. 38. The parties further

represent that only a narrow set of disputes remain regarding the propriety of withholding of

documents. Id. at 2. These disputes had already been briefed in relation to the parties’ previously-

denied summary judgment motions. Id. The parties ask the Court to rule on these disputes on the

basis of their previously-filed briefs. Id. Both parties agree that after the Court has made these

rulings, this case will be fully resolved. This Memorandum Opinion addresses the parties’

remaining disputes and resolves this case.

Upon consideration of the pleadings 1, the relevant legal authorities, and the record for

purposes of this motion, the Court GRANTS summary judgment for Defendant and DENIES

summary judgment for Plaintiff. The Court finds that the narrow set of withholdings still at issue

in this case were all proper. This case will be DISMISSED.

Congress enacted the Freedom of Information Act, 5 U.S.C. § 552, in order to “pierce the

veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of

Air Force v. Rose, 425 U.S. 352, 361 (1976) (citation omitted). Congress remained sensitive to

the need to achieve balance between these objectives and the potential that “legitimate

governmental and private interests could be harmed by release of certain types of information.”

Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 1992)

(en banc) (citation omitted), cert. denied, 507 U.S. 984 (1993). To that end, FOIA “requires federal

agencies to make Government records available to the public, subject to nine exemptions for

categories of material.” Milner v. Dep’t of Navy, 131 S.Ct. 1259, 1261-62 (2011). Ultimately,

“disclosure, not secrecy, is the dominant objective of the act.” Rose, 425 U.S. at 361. For this

reason, the “exemptions are explicitly made exclusive, and must be narrowly construed.” Milner,

131 S.Ct. at 1262 (citations omitted).

When presented with a motion for summary judgment in this context, the district court

must conduct a “de novo” review of the record, which requires the court to “ascertain whether the

agency has sustained its burden of demonstrating that the documents requested . . . are exempt

from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture, 515 F.3d 1224,

1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its response to the

plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden by means of

affidavits, but only if they contain reasonable specificity of detail rather than merely conclusory

statements, and if they are not called into question by contradictory evidence in the record or by

evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted). “If an

agency’s affidavit describes the justifications for withholding the information with specific detail,

demonstrates that the information withheld logically falls within the claimed exemption, and is not

contradicted by contrary evidence in the record or by evidence of the agency’s bad faith, then

summary judgment is warranted on the basis of the affidavit alone.” Am. Civil Liberties Union v.

U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). “Uncontradicted,

plausible affidavits showing reasonable specificity and a logical relation to the exemption are

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The Court’s consideration has focused on the following documents:

• Def.’s Mem. in Support of Def.’s Mot. for Summary Judgment (“Def.’s Mem.”), ECF No.

21;

• Pl.’s Mem. in Opp’n to Def.’s Mot. for Summary Judgment and in Support of Pl.’s Cross-

Mot. for Partial Summary Judgment and Discovery (“Pl.’s Mem.”), ECF Nos. 23, 24;

• Def.’s Reply in Support of Mot. for Summary Judgment and Opp’n to Pl.’s Cross-Mot. for

Partial Summary Judgment and Discovery (“Def.’s Reply”), ECF Nos. 27, 28, and

• Pl.’s Reply in Support of Pl.’s Cross-Mot. for Partial Summary Judgment and Discovery,

ECF No. 30 (“Pl.’s Reply”).

In an exercise of its discretion, the Court finds that holding oral argument in this action would not

be of assistance in rendering a decision. See LCvR 7(f).

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likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 509 (D.C.

Cir. 2011) (citation omitted).

The information that Plaintiff argues Defendant has improperly withheld falls into two

categories. First, Plaintiff argues that Defendant has improperly withheld information from certain

documents that is already publicly-known. Second, Plaintiff argues that Defendant has improperly

withheld non-privileged information from certain other documents under FOIA Exemption 5.2

The Court rejects Plaintiff’s arguments with respect to both categories of information.

A. The Public-Domain Doctrine

First, Plaintiff argues that the State Department improperly “withheld information from

five emails—C05963262, C05963195, C05998332, C05998335, and C05963193—which was

previously made public through an official and documented disclosure.” Pl.’s Mem. at 10.

Plaintiff argues that this is the case because “the withheld information in these emails was sent to

Williams & Connolly—a private law firm unaffiliated with the government.” Id. (emphasis in

original). This argument implicates the “public-domain doctrine.”

Under the “public-domain doctrine, materials normally immunized from disclosure under

FOIA lose their protective cloak once disclosed and preserved in a permanent public record.”

Cottone v. Reno, 193 F.3d 550, 554 (D.C. Cir. 1999). This is because “where information

requested ‘is truly public, . . . enforcement of an exemption cannot fulfill its purposes.’” Id.

(quoting Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)).

The D.C. Circuit has “noted that ‘while the logic of FOIA postulates that an exemption can serve

no purpose once information . . . becomes public, [the Court] must be confident that the

information sought is truly public and that the requester receive no more than what is publicly

available before [the Court] find[s] a waiver.” Id. at 555. To take advantage of this doctrine, a

plaintiff must “establish[ ] that the information he seeks has entered and remains in the public

domain.” Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir. 1992).

Plaintiff has not shown that the information sought in these e-mails has become “truly

public” or that it is preserved in any “permanent public record” in the public domain. 3 All Plaintiff

has shown is that the State Department disclosed the information to the private attorney for the

former Secretary of State at a single outside law firm. There is nothing in the record to suggest

2

Plaintiff also originally disputed the withholding of document C05946052, see Pl.’s Mem. at 12,

but Defendant has since provided that document to Plaintiff with the challenged material

unredacted, Def.’s Reply at 2 n.1, rendering this dispute moot.

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The parties appear to dispute whether, even if the information had become public, that public

disclosure could work as a waiver with respect to all of the exemptions that are at issue in this case.

In other words, the parties dispute whether or not there are certain FOIA exemptions to which the

public domain doctrine categorically does not apply. The Court need not resolve this aspect of the

parties’ dispute. For the purposes of this Memorandum Opinion, the Court assumes that the public

domain doctrine can apply to withholdings under any FOIA exemption. The doctrine simply does

not apply here because the withheld information was never made public.

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that this limited disclosure resulted in the information becoming known to anyone else, let alone

the general public. In fact, the e-mails in question appear to have been sent to Mr. Kendall as part

of a decision to secure information at his firm’s office. Plaintiff, or any other FOIA requester,

would apparently have no way to obtain this information from the public domain despite its having

been provided to Mr. Kendall. The logic behind the public-domain doctrine—that FOIA

exemptions serve no purpose if the information sought is already public—is simply not applicable

under these circumstances. See Students Against Genocide v. Dep’t of State, 257 F.3d 828, 836

(D.C. Cir. 2001) (holding that photographs “plainly d[id] not fall within” the public-domain

doctrine because they “were not released to the general public,” and only certain outside parties

were allowed to see them); Judicial Watch, Inc. v. U.S. Dep’t of Def., 963 F. Supp. 2d 6, 16 (D.D.C.

2013) (holding that the public-domain doctrine did not apply where information had not been

released to the general public, but only disclosed to a select group of filmmakers); Muslim

Advocates v. U.S. Dep’t of Justice, 833 F. Supp. 2d 92, 100 (D.D.C. 2011) (holding that disputed

documents were not “truly public,” and therefore the public-domain doctrine did not apply, where

the FBI allowed select outside groups to view the documents but did not release them to the general

public). 4

Accordingly, Plaintiff’s public-domain doctrine argument fails, and Defendant is entitled

to summary judgment on the withholding of documents C05963262, C05963195, C05998332,

C05998335, and C05963193.

B. FOIA Exemption 5

Second, Plaintiff argues that the State Department improperly invoked FOIA Exemption 5

to withhold three documents—C05946067, C05963395, and C05963377. “Exemption 5 . . . allows

the government to withhold ‘inter-agency or intra-agency memorandums or letters which would

not be available by law to a party other than an agency in litigation with the agency.’” Loving v.

Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008) (quoting 5 U.S.C. § 552(b)(5)). “Exemption 5

‘incorporates the traditional privileges that the Government could assert in civil litigation against

a private litigant’—including the presidential communications privilege, the attorney-client

privilege, the work product privilege, and the deliberative process privilege—and excludes these

privileged documents from FOIA’s reach.” Id. (quoting Baker & Hostetler LLP v. U.S. Dep’t of

Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006)).

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Plaintiff argues that Students Against Genocide and Muslim Advocates are distinguishable

because the disputed documents in those cases were shown but not given to the outside parties in

question. Pl.’s Mem. at 10-11. Here, Mr. Kendall was not merely shown documents. Information

in the disputed e-mails was actually sent to him. This distinction does not change the Court’s

conclusion. In a similar way that the limited disclosures in Students Against Genocide and Muslim

Advocates did not make the disputed information truly public because the information was made

available to only a discrete group of individuals and not the general public, sending the disputed

information in this case only to the personal attorney of the former Secretary of State simply is not

enough to make the information “public.”

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Plaintiff contends that the three documents at issue “are non-exempt because they do not

implicate State’s deliberative process, do not involve the provision of legal advice from an attorney

to a client, and do not pertain to foreseeable litigation.” Pl.’s Mem. at 12 (emphasis in original).

None of these arguments has merit.

1. C05946067

According to Defendant’s Vaughn Index, document C05946067 is “a draft letter, prepared

by an attorney, from Paul M. Wester to James B. Comey regarding the FBI inquiry into former

Secretary Clinton’s email server and thumb drives.” Dept. of State Vaughn Index, ECF No. 21-2

(“Vaughn Index”), at 8. This draft letter was withheld under Exemption 5 pursuant to the

deliberative process and attorney work-product privileges. The Vaughn Index represents that

“[r]elease of this information, which is pre-decisional and deliberative with respect to a final

decision regarding the contents of the letter, would reveal details of government officials’

preliminary thoughts and ideas regarding what information to include in the letter, and could

reasonably be expected to chill the open and frank expression of ideas, recommendations, and

opinions that occur when government officials are drafting a letter for signature by a senior U.S.

Government official.” Id. It also states that “[d]isclosure of this information would . . . impede

the ability of responsible government officials to formulate and carry out executive branch

programs by inhibiting candid internal discussion and the expression of recommendations and

judgments regarding a preferred course of action.” Id. at 8-9. The State Department also withheld

the document pursuant to the attorney-work product privilege because it contains “information that

reflects the mental impressions and thought processes of an attorney that was prepared in

anticipation of foreseeable litigation.” Id. at 9.

The Court upholds the withholding of this document on the basis of the deliberative process

privilege. “The deliberative process privilege protects ‘documents reflecting advisory opinions,

recommendations and deliberations comprising part of a process by which governmental decisions

and policies are formulated.’” Loving, 550 F.3d at 38 (quoting Dep’t of Interior v. Klamath Water

Users Protective Ass’n, 532 U.S. 1, 8 (2001)). This draft letter appears to have been developed as

part of a pre-decisional and deliberative process leading up to the drafting and transmission of a

final letter, and as such is precisely the type of document that would come within this privilege.

See Krikorian v. Dep’t of State, 984 F.2d 461, 466 (D.C. Cir. 1993) (holding that draft letters

“reflect[ed] advisory opinions that are important to the deliberative process”).

Plaintiff objects to the withholding of this draft letter under the deliberative process

privilege because the letter originated from an agency other than the State Department, and was

drafted to be sent to an official from another agency: former FBI Director James Comey.

According to Plaintiff, to the extent this document is deliberative in nature, the deliberations are

irrelevant because they are not deliberations of the Defendant in this case, the State Department.

Plaintiff’s objection is unfounded. The involvement of other agencies does not prevent

Defendant from invoking Exemption 5 and the deliberative process privilege. Exemption 5 does

not apply only to correspondence sent within a single agency. It expressly applies to “inter-

agency” as well as “intra-agency memorandums or letters.” § 552(b)(5). Moreover, the

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deliberative process privilege in particular “covers deliberative, pre-decisional communications

within the Executive Branch.” Nat’l Sec. Archive v. C.I.A., 752 F.3d 460, 462 (D.C. Cir. 2014)

(emphasis added). It is not limited to communications only within one agency within the Executive

Branch. Accordingly, the fact that this document constitutes a communication between members

of two agencies does not preclude the application of the deliberative process privilege. This is

especially so where, as here, the two agencies were apparently communicating for the purpose of

sharing their relative expertise in an attempt to reach a quality decision. This is precisely the type

of conduct that the deliberative process privilege seeks to protect.

Nor is there any authority that Plaintiff has presented to the Court, or that the Court is aware

of, that would prevent the State Department from asserting this privilege even though State was

not the intended sender or recipient of the draft letter. Similarly, Plaintiff provides no authority

for his claim that Defendant must submit a declaration from officials from the other agencies

involved. Pl.’s Mem. at 12. The Court can discern from the Vaughn Index and declaration

Defendant has already submitted that the deliberative process privilege applies. Nothing more is

required. Defendant is entitled to summary judgment with respect to this document.

2. C05963395 and C05963377

According to Defendant’s Vaughn Index, document C05963395 is “an inter-agency e-mail

exchange from the [National Archives and Records Administration] General Counsel to the

Department of Justice, which was then forwarded to [Department of State] attorneys, regarding a

letter to David E. Kendall from the [Department of State] Inspector General’s Office regarding

information pertaining to [a] preservation order.” Vaughn Index at 33. Document C05963377 is

“an inter-agency e-mail exchange from the [Department of State] Deputy Legal Adviser to the

[National Archives and Records Administration] General Counsel and the Department of Justice,

regarding a letter from [the Department of State] to FBI Director Comey.” Id. at 34. In both

documents, the Vaughn Index states that “the [Department of Justice] and [Department of State]

attorneys discuss what information to include in an upcoming court filing.” Id. at 33, 34. Portions

of both documents were withheld under Exemption 5 pursuant to the deliberative process,

attorney-client, and attorney work product privileges.

The Vaughn Index makes clear that the disputed portions of both of these documents were

properly withheld. Little discussion of this point is required. Both documents contained

communications of legal advice sent from government attorneys to their clients. They are both

deliberative and are both work product in the sense that they discuss what approach should be

taken to an upcoming court filing. They are clearly privileged.

The focus of Plaintiff’s argument with respect to these documents is that it was improper

for the State Department to redact text that was originally written by a National Archives and

Records Administration attorney (as opposed to a State Department attorney). See Pl.’s Mem. at

13. This argument goes nowhere. As an initial matter, Defendant has represented that in fact the

redacted text at issue in document C05963377 was not written by a National Archives and Records

Administration attorney, as Plaintiff postulated, but instead by a Department of Justice attorney.

Regardless, even assuming that the portions of the documents were written by an attorney outside

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of the State Department as Plaintiff contends, that simply does not defeat the assertions of

privilege. Legal advice does not lose its protected status simply because it incorporates statements

from outside sources. Attorney work product and attorney-client communications do so routinely.

Finally, to the extent Plaintiff argues that the partial withholding of these documents

required a declaration from National Archives and Records Administration or Department of

Justice officials, the Court rejects that argument. The declaration and Vaughn Index in this case

are sufficient to demonstrate why the withholdings were proper. Defendant is entitled to summary

judgment with respect to these documents.

* * *

For the reasons stated above, the Court finds that the narrow set of withholdings still at

issue in this case were proper. Accordingly, summary judgment will be GRANTED for Defendant

and DENIED for Plaintiff, and this case will be DISMISSED. An appropriate Order accompanies

this Memorandum Opinion.

Dated: July 12, 2018

/s/

COLLEEN KOLLAR-KOTELLY

United States District Judge

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