Judicial Watch, Inc. v. U.S. Department of StateMOTION for Summary JudgmentD.D.C.February 10, 2017IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Case No. 16-cv-574 (RDM) ) U.S. DEPARTMENT OF STATE, ) ) Defendant. ) ) DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Defendant, the United States Department of State, hereby moves for summary judgment pursuant to Federal Rule of Civil Procedure 56(b). Attached in support of defendant’s motion are a memorandum of points and authorities, the declaration of Eric Stein, and a statement of material facts not in dispute. Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch /s/ James Bickford JAMES BICKFORD New York Bar No. 5163498 Trial Attorney, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 James.Bickford@usdoj.gov Telephone: (202) 305-7632 Facsimile: (202) 616-8470 Counsel for Defendant Dated: February 10, 2017 Case 1:16-cv-00574-RDM Document 15 Filed 02/10/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Case No. 16-cv-574 (RDM) ) U.S. DEPARTMENT OF STATE, ) ) Defendant. ) ) MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Judicial Watch made a Freedom of Information Act request to the U.S. Department of State for documents relating to the processing of an earlier request by a different organization, which had asked for records “sufficient to show the number of email accounts of, or associated with, Secretary Hillary Rodham Clinton” and was told that no responsive records were found. The State Department conducted a thorough search in response to the Judicial Watch request and produced many records, withholding only four in full—a draft letter, an internal worksheet, a page of lawyers’ notes, and a legal opinion—while lightly redacting some intra-agency emails and database entries pursuant to FOIA Exemptions 5 and 6. Judicial Watch does not dispute that State conducted an adequate search for responsive records and intends to challenge only the Exemption 5 withholdings, which were made under the deliberative process, attorney work product, and attorney-client privileges. Because the invocation of those privileges is justified by the State Department’s declaration and Vaughn index, the State Department is entitled to summary judgment. Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 1 of 14 - 2 - BACKGROUND In 2012, Citizens for Responsibility and Ethics in Washington submitted a Freedom of Information Act request for records “sufficient to show the number of email accounts of, or associated with, Secretary Hillary Rodham Clinton, and the extent to which those email accounts are identifiable as those of or associated with Secretary Clinton.” Decl. of Eric Stein, Ex. 3 at 2. This request was submitted following reports that the Administrator of the Environmental Protection Agency had used an alias account to send official emails, rather than the public account linked to her name. The organization explained that it hoped to determine whether Secretary Clinton also “used email accounts not readily identifiable as her accounts” and whether such accounts may have “led to under-inclusive responses to FOIA, discovery, and congressional requests.” Citizens for Responsibility and Ethics in Washington submitted similar requests to several other agencies. In 2013, the State Department informed the organization that it had searched the Bureau of Information Resource Management, the Executive Secretariat’s Office of Information Resources Management, and the Executive Secretariat’s Office of Correspondence and Records, but found no records responsive to the request. Id.., Ex. 4 at 1. In April 2016, Judicial Watch submitted a Freedom of Information Act request for “records concerning, regarding, or relating to the processing of” Citizens for Responsibility and Ethics in Washington’s earlier FOIA request. Stein Decl. ¶ 4. The State Department released responsive records in monthly batches from July through October 2016. Id. ¶¶ 6–9. Withholdings were primarily made pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5). In February 2017, the State Department made a fifth release, which consisted of responsive documents that had previously been withheld in full or in part. Ten documents previously withheld in full were released in full, three documents previously withheld in full were released Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 2 of 14 - 3 - in part, and one document previously withheld in part was released in full. Stein Decl. ¶ 10. Additional information was released in nine documents withheld in part. Id. In addition, IPS informed Plaintiff that one document previously withheld in full was in fact not responsive to the organization’s request. Id. Overall, State retrieved 68 records responsive to this FOIA request. Of those records, 29 were released in full, 35 were released in part, and 4 were withheld in full. Id. ¶ 15. The State Department now moves for summary judgment. Judicial Watch has indicated that its cross-motion for summary judgment will challenge all withholdings made pursuant to FOIA Exemption 5, but will not challenge the adequacy of the search for responsive documents or the withholdings made pursuant to any other FOIA exemptions. See Joint Status Report of Nov. 18, 2016, ECF No. 12. STANDARD OF REVIEW Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Diamond v. Atwood, 43 F.3d 1538, 1540 (D.C. Cir. 1995). FOIA actions are typically resolved on summary judgment. Reliant Energy Power Generation, Inc. v. FERC, 520 F. Supp. 2d 194, 200 (D.D.C. 2007). A court reviews an agency’s response to a FOIA request de novo. See 5 U.S.C. § 552(a)(4)(B). An agency must justify any records withheld, in whole or in part, by reference to one of FOIA’s statutory exemptions. Congress recognized “that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused.” FBI v. Abramson, 456 U.S. 615, 621 (1982). “Summary judgment is warranted on the basis of agency affidavits when the affidavits Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 3 of 14 - 4 - describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 865 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984) (quotation marks omitted)). “Ultimately, an agency’s justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Wolf v. CIA, 473 F.3d 370, 374–75 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir. 1982), and Hayden v. NSA, 608 F.2d 1381, 1388 (D.C. Cir. 1979)). ARGUMENT FOIA Exemption 5 protects from disclosure “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). The exemption ensures that members of the public cannot obtain through a FOIA request what they could not ordinarily obtain through discovery in a lawsuit against the agency. See NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 148–49 (1975). Exemption 5 thus protects the attorney-client privilege, the attorney work product privilege, and the deliberative process privilege. Id.; see also Rockwell Int’l Corp. v. Dep’t of Justice, 235 F.3d 598, 601 (D.C. Cir. 2001). In responding to the Judicial Watch FOIA request, the State Department withheld information pursuant to all three of those privileges. A. Deliberative Process Privilege The deliberative process privilege “serves to protect the deliberative process itself, not merely documents containing deliberative material.” Mapother v. DOJ, 3 F.3d 1533, 1537 (D.C. Cir. 1993) (citations omitted). The “privilege rests on the obvious realization that officials will not communicate candidly among themselves if each remark is a potential item of discovery and Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 4 of 14 - 5 - front page news,” Dep’t of Interior v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001) (citations omitted), and reflects the fact that “efficiency of Government would be greatly hampered if, with respect to legal and policy matters, all Government agencies were prematurely forced to operate in a fishbowl,” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992) (citation omitted). It applies to “decisionmaking of executive officials generally,” and protects documents containing deliberations that are part of the process by which government decisions are formulated. In re Sealed Case, 121 F.3d 729, 745 (D.C. Cir. 1997); see Sears, 421 U.S. at 150. The purpose of the deliberative process privilege is to “prevent injury to the quality of agency decisions,” id. at 151, by, among other things, encouraging full and frank discussion of legal and policy matters within the government and by avoiding the public confusion that might result from the disclosure of rationales that were not ultimately the grounds for agency action, Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). The deliberative process privilege “protects agency documents that are both predecisional and deliberative.” Judicial Watch v. FDA, 449 F.3d 141, 151 (D.C. Cir. 2006) (citation omitted). “A document is predecisional if it precedes, in temporal sequence, the decision to which it relates.” Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015) (citation omitted). And agency documents are “deliberative” if they “reflect[] the give-and-take of the consultative process.” Coastal States Gas Corp., 617 F.2d at 866. “[C]ourts should give ‘considerable deference’ to an agency’s judgment as to what constitutes ‘part of the agency give- and-take—of the deliberative process—by which the decision itself [was] made.’” Gosen v. USCIS, 118 F. Supp. 3d 232, 244 (D.D.C. 2015) (quoting Chem. Mfrs. Ass’n v. Consumer Prods. Safety Comm’n, 600 F. Supp. 114, 118 (D.D.C. 1984)). Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 5 of 14 - 6 - As established by the Stein Declaration and the attached Vaughn index, Judicial Watch challenges the withholding of “advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated,” which are therefore protected by the deliberative process privilege. Abtew, 808 F.3d at 898 (quoting Sears, 421 U.S. at 150). i. Documents Withheld In Full Three documents were withheld in full pursuant to the deliberative process privilege. All three are “intra-agency memorandums” within the meaning of Exemption 5. The first is a fee waiver assessment worksheet that was completed in the course of determining whether Citizens for Responsibility and Ethics in Washington would be granted a fee waiver for its FOIA request. Vaughn Index, Entry 6. The worksheet is an internal form used by the State Department to assist with such determinations; the markings on it are pre-decisional, because they were made before State determined whether a fee waiver would be granted, and they are deliberative, because they contain an official’s provisional assessment of whether a fee waiver is warranted. Id. This worksheet provides the structure by which a State Department official thinks through the question of whether to grant a fee waiver. Although the handwritten markings could be segregated from the pre-printed form, such redactions would leave a document (the bare form) that had no relationship to the FOIA request at issue here. The entire document was therefore withheld in full.1 See Isiwele v. U.S. Dep’t of Health & Human Servs., 85 F. Supp. 3d 337, 357– 58 (D.D.C. 2015) (agency properly withheld handwritten notes on internal worksheet under 1 The State Department is willing to provide Judicial Watch with a blank copy of this form upon request. Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 6 of 14 - 7 - deliberative process privilege); Judicial Watch, Inc. v. Export-Import Bank, 108 F. Supp. 2d 19, 36 (D.D.C. 2000) (agency properly withheld internal worksheet as deliberative). The second document withheld in full pursuant to the deliberative process privilege is a working draft of the letter informing Citizens for Responsibility and Ethics in Washington that the State Department had not identified any records responsive to its FOIA request. Vaughn Index, Entry 8. The draft letter includes red-line edits; it was prepared by subordinates for the eventual signature of Sheryl Walter, the Director of the State Department’s Office of Information Programs and Services. Id. The draft is necessarily pre-decisional, because it precedes State’s decision as to the final text of the letter that would ultimately be sent, and it is deliberative, as it contains an official’s thoughts as to what the eventual letter should or should not say. Id. The draft letter did not contain any segregable information: everything in it was a provisional thought on how the letter should ultimately be written. “Draft documents, by their very nature, are typically predecisional and deliberative.” ACLU v. FBI, 429 F. Supp. 2d 179, 191 (D.D.C. 2006) (citation omitted); see Judicial Watch, 449 F.3d at 152 (“Exemption 5 protects ‘draft documents’” (quoting Coastal States Gas Corp., 617 F.2d at 866)). This is because drafts are inherently “recommendatory.” Coastal States Gas Corp., 617 F.2d at 866. The draft letter was therefore appropriately withheld in full. The third document withheld in full pursuant to the deliberative process privilege is a single page of notes taken by a State Department attorney, concerning legal questions or proposed actions pertaining to multiple requests for State Department documents, including the FOIA request at issue here. Vaughn Index, Entry 9. This document contains the author’s thoughts about the various requests. Id. Those thoughts were recorded before any final decision was made at that time, and they were deliberative. Id. In one place, the attorney asks a question Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 7 of 14 - 8 - about whether a particular course of action should be taken; clearly, the attorney (or the officials in the meeting from which the notes appear to derive) is deliberating over the question. When “notes taken at meetings contain an account of the exchange of opinion between personnel in the agency, and/or a give-and-take . . . aimed at least at airing the positions within the agency,” Strang v. Collyer, 710 F. Supp. 9, 12 (D.D.C. 1989) (citations and quotation marks omitted), they “reflect the agency’s group thinking in the process of working out its policy,” Sears, 421 U.S. at 153. “Notes generally are selective and deliberative—and routine public disclosure of meeting notes and other notes would hinder government officials from debating issues internally, deter them from giving candid advice, and lower the overall quality of the government decisionmaking process.” Baker & Hostetler LLP v. U.S. Dep’t of Commerce, 473 F.3d 312, 321 (D.C. Cir. 2006). Because the single page of attorney notes was selective and deliberative, as most notes are (and because it did not contain any segregable information) it was properly withheld in full pursuant to the deliberative process privilege. (As discussed below, this document is also protected by the attorney work product privilege.) ii. Documents Withheld in Part Twenty-five documents were withheld in part pursuant to the deliberative process privilege. Twenty-three of these documents were intra-agency email exchanges, while the other two were records from an internal database. All twenty-five are “intra-agency memorandums” within the meaning of Exemption 5. The State Department withheld from some email exchanges pre-decisional inquiries and proposals about how to process the FOIA request at issue here (or, in one case, another FOIA request that was being discussed), how and whether to take certain actions in furtherance of that Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 8 of 14 - 9 - processing, how to respond to the FOIA requester, and what to say when responding.2 It also withheld references to pre-decisional communications with other parts of the executive branch from some exchanges. Stein Decl., Ex. 1 (“Vaughn Index”), Entry 1 (“The Department withheld references to communications with another part of the executive branch” which, if released, “would reveal the internal executive branch process of developing a public response to a FOIA request, and could reasonably be expected to chill the open and frank expression of ideas, recommendations, and opinions that occur when Department officials are formulating a strategy for official action.”); see id., Entries 2–4 (similar). Finally, the State Department withheld notes in a case management database “reflecting pre-decisional recommendations or questions regarding how to process” the FOIA request at issue here. Vaughn Index, Entry 7. All of the material redacted pursuant to the deliberative process privilege was pre- decisional, because it predated the State Department’s determination with respect to the FOIA request at issue here (or, in one case, another FOIA request). And all of the material was deliberative or intertwined with deliberative material: inquiries, proposals, and recommendations about how to appropriately process a FOIA request, even when they contain some facts, are the 2 Vaughn Index, Entry 2 (“The Department withheld portions of these documents that reveal pre- decisional proposals for how to go about processing the request. . . .”); id., Entry 3 (“[T]he Department withheld pre-decisional proposals for actions to take in the processing of the FOIA request. . . .”); id., Entry 4 (“The Department withheld . . . pre-decisional proposals for how to process the request and how and what to communicate to the requester. . . .”); id., Entry 5 (“The Department withheld portions of these documents which contain pre-decisional proposals for how to respond to the requester. . . .”); id., Entry 11 (“[T]he Department . . . withheld a pre- decisional recommendation for how to process another FOIA request then in litigation.”); id., Entry 13 (“The withheld information concerns an inquiry and a proposal by the IPS Office Director regarding the processing of the [FOIA] request.”); id., Entry 14 (“The Department withheld portions of these documents that relate to a request for and provision of legal advice from a Department attorney” from emails “concerning the issuance of a response to the requester.”); id., Entry 15 (“The Department withheld a pre-decisional proposal for how to process the request. . . .”). Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 9 of 14 - 10 - very process by which an agency deliberates over the actions that it will take in response to that request. Nor are the references to communications with other parts of the executive branch any less deliberative: the privilege “serves to protect the deliberative process itself, not merely documents containing deliberative material,” Mapother, 3 F.3d at 1537, and these communications are essential parts of the process by which the executive branch determines how to respond to a FOIA request. “Disclosure of this information would . . . impede the ability of responsible Department 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.” Vaughn Index, Entry 2. The “quality of agency decisions,” Sears, 421 U.S. at 151, would be substantially impaired if the State Department’s consultations with other parts of the executive branch were subject to public disclosure. Finally, the notes in a case management database are protected for the same reasons that the internal fee worksheet is protected: both are pre-decisional deliberations about the proper processing of the FOIA request. B. Attorney Work Product Privilege The attorney work product doctrine is designed “to encourage the author of a document to be candid” when recording information related to anticipated or ongoing litigation. See Pac. Fisheries, Inc. v. United States, 539 F.3d 1143, 1148 (9th Cir. 2008) (citing Coastal States Gas Corp., 617 F.2d at 864). The work-product doctrine recognizes that “it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel,” in order to “prepare his legal theories and plan his strategy without undue and needless interference.’” Trs. of Elec. Workers Local No. 26 Pension Trust Fund v. Trust Fund Advisors, Inc., 266 F.R.D. 1, 13 (D.D.C. 2010) (quoting Hickman v. Taylor, 329 U.S. 495, 510– Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 10 of 14 - 11 - 11 (1947)). As such, the doctrine protects from disclosure “documents and tangible things that are prepared in anticipation of litigation . . . .” See Fed. R. Civ. P. 26(b)(3); see also Tax Analysts v. IRS, 117 F.3d 607, 620 (D.C. Cir. 1997). “[T]he Supreme Court has made clear [that] the [attorney work-product] doctrine should be interpreted broadly and held largely inviolate[.]” Judicial Watch, Inc. v. U.S. Dep’t of Justice, 432 F.3d 366, 369–70 (D.C. Cir. 2005) (citing Hickman, 329 U.S. at 510–11). “Without a strong work-product privilege, lawyers would keep their thoughts to themselves, avoid communicating with other lawyers, and hesitate to take notes.” In re Sealed Case, 146 F.3d at 884. The protection of the work product doctrine continues beyond the termination of the particular situation for which the materials were created. FTC v. Grolier, Inc., 462 U.S. 19, 28 (1983). The State Department withheld information from eight sets of email exchanges pursuant to the attorney work product privilege. These exchanges included “information prepared by an attorney, or at his or her direction, in contemplation of reasonably foreseeable litigation with respect to the FOIA request.” Vaughn Index, Entries 2, 4, 5, 10, 11, 12, 14, 16. Similar information was also contained in the page of handwritten notes that was withheld in full pursuant to the deliberative process privilege. Id., Entry 9. “In ascertaining whether a document was prepared in anticipation of litigation,” the D.C. Circuit applies “a ‘because of’ test, asking whether, in light of the nature of the document and the factual situation in the particular case, the document can fairly be said to have been prepared or obtained because of the prospect of litigation.’” Nat’l Ass’n of Criminal Defense Lawyers v. Dep’t of Justice Executive Office for U.S. Attorneys, 844 F.3d 246, 251 (D.C. Cir. 2016) (quoting United States v. Deloitte LLP, 610 F.3d 129, 137 (D.C. Cir. 2010)). “For that standard to be met, the attorney who created the document must have ‘had a subjective belief that litigation was a real possibility,’ and that Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 11 of 14 - 12 - subjective belief must have been ‘objectively reasonable.’” Id. (quoting Sealed Case, 146 F.3d at 884)). It is not, however, necessary that litigation actually ensued—a “real possibility” is enough. The information protected here satisfies this standard: it was all prepared in light of the very real possibility that Citizens for Responsibility and Ethics in Washington, a frequent litigant in this court,3 would follow its FOIA request with a FOIA suit as Judicial Watch has done here. The very fact that attorneys from the Office of the Legal Adviser were involved in the State Department’s deliberations suggests that this FOIA request was thought to be significant, and significant FOIA requests frequently result in litigation. The withheld information was therefore appropriately withheld pursuant to the attorney work product privilege. C. Attorney-Client Privilege The attorney-client privilege protects “confidential communications between an attorney and his client relating to a legal matter for which the client has sought professional advice.” Mead Data Cent., Inc. v. U.S. Dep’t of the Air Force, 566 F.2d 242, 252 (D.C. Cir. 1977); see also Ctr. for Medicare Advocacy v. HHS, 577 F. Supp. 2d 221, 237 (D.D.C. 2008) (indirectly citing Mead Data for privilege requirements). This privilege is not limited to the litigation context. Mead Data, 566 F.2d at 252–53 (distinguishing attorney-client privilege from attorney work product privilege); see also Elec. Privacy Info. Ctr. v. DHS, 384 F. Supp. 2d 100, 114 (D.D.C. 2005) (citing Mead Data). The attorney-client privilege “encompasses any opinions given by an attorney to his client based upon, and thus reflecting, those facts,” as well as “communications between attorneys that reflect client-supplied information.” Elec. Privacy Info. Ctr., 384 F. Supp. 2d at 114; see also, e.g., Judicial Watch, Inc. v. U.S. Dep't of Commerce, 337 3 A PACER search indicates that the organization filed nine FOIA suits in this district in 2013, the year that this request was being processed. Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 12 of 14 - 13 - F. Supp. 2d 146, 174 (D.D.C. 2004) (applying privilege to documents written by agency attorneys to superiors describing advice given to clients within agency). Confidentiality may be inferred when the communications suggest that “the Government is dealing with its attorneys as would any private party seeking advice to protect personal interests.” In re Lindsay, 158 F.3d 357, 363 (D.C. Cir. 1998) (quoting Coastal States, 617 F.2d at 863). The State Department withheld information from eight sets of email exchanges pursuant to the attorney-client privilege. This information was withheld “to protect communications between [a State Department] Attorney-Adviser and his clients ([State Department] officials) for the purpose of seeking and/or providing legal advice”; it was intended to be kept confidential and has been so kept. Vaughn Index, Entries 2, 4, 5, 10, 11, 12, 14, 16. It was therefore protected by the attorney-client privilege and was properly withheld, as was the district court opinion forwarded by a State Department attorney to the IPS Director and another State Department attorney. Id., Entry 10. Although the judicial opinion is of course a matter of public record, the fact that an attorney thought it important enough to send to his or her client is privileged. CONCLUSION For the reasons stated above and in the Stein Declaration and accompanying Vaughn index, the documents and information withheld by the State Department was protected by FOIA Exemption 5, and all reasonably segregable information was disclosed. Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch /s/ James Bickford JAMES BICKFORD Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 13 of 14 - 14 - New York Bar No. 5163498 Trial Attorney, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 James.Bickford@usdoj.gov Telephone: (202) 305-7632 Facsimile: (202) 616-8470 Counsel for Defendant Dated: February 10, 2017 Case 1:16-cv-00574-RDM Document 15-1 Filed 02/10/17 Page 14 of 14 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Case No. 16-cv-574 (RDM) ) U.S. DEPARTMENT OF STATE, ) ) Defendant. ) ) STATEMENT OF MATERIAL FACTS IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Pursuant to Local Civil Rule 7(h)(1), the following is a statement of material facts as to which the movant, the United States Department of State, contends there is no genuine issue: 1. In 2012, Citizens for Responsibility and Ethics in Washington submitted a Freedom of Information Act request for records “sufficient to show the number of email accounts of, or associated with, Secretary Hillary Rodham Clinton, and the extent to which those email accounts are identifiable as those of or associated with Secretary Clinton.” Decl. of Eric Stein, Ex. 3 at 2. 2. In 2013, the State Department informed the organization that it had searched the Bureau of Information Resource Management, the Executive Secretariat’s Office of Information Resources Management, and the Executive Secretariat’s Office of Correspondence and Records, but found no records responsive to the request. Id., Ex. 4 at 1. 3. In April 2016, Judicial Watch submitted a Freedom of Information Act request for “records concerning, regarding, or relating to the processing of” Citizens for Responsibility and Ethics in Washington’s earlier FOIA request. Id. ¶ 4. Case 1:16-cv-00574-RDM Document 15-2 Filed 02/10/17 Page 1 of 2 4. The State Department released responsive records in monthly batches from July through October 2016. Id. ¶¶ 6–9. 5. In February 2017, the State Department made a fifth release, which consisted of responsive documents that had previously been withheld in full or in part. Id. ¶ 10. 6. Overall, State retrieved 68 records responsive to this FOIA request. Of those records, 29 were released in full, 35 were released in part, and 4 were withheld in full. Id. ¶ 15. 7. The State Department withheld records and information pursuant to FOIA Exemption 5. See id., Ex. 1 (“Vaughn Index”). Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General ELIZABETH J. SHAPIRO Deputy Director, Federal Programs Branch /s/ James Bickford JAMES BICKFORD New York Bar No. 5163498 Trial Attorney, U.S. Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, NW Washington, DC 20530 James.Bickford@usdoj.gov Telephone: (202) 305-7632 Facsimile: (202) 616-8470 Counsel for Defendant Dated: February 10, 2017 Case 1:16-cv-00574-RDM Document 15-2 Filed 02/10/17 Page 2 of 2 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Case No. 16-cv-574 (RDM) ) U.S. DEPARTMENT OF STATE, ) ) Defendant. ) ) [PROPOSED] ORDER Pursuant to Federal Rule of Civil Procedure 56(b), the U.S. Department of State’s motion for summary judgment is hereby GRANTED. Randolph D. Moss UNITED STATES DISTRICT JUDGE Case 1:16-cv-00574-RDM Document 15-3 Filed 02/10/17 Page 1 of 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JUDICIAL WATCH, INC., ) ) Plaintiff, ) ) v. ) Case No. 16-cv-574 (RDM) ) U.S. DEPARTMENT OF STATE, ) ) Defendant. ) ) CERTIFICATE OF SERVICE I hereby certify that on February 10, 2017, a copy of the foregoing motion for summary judgment, memorandum of points and authorities, statement of material facts, and proposed order was filed electronically via the Court’s ECF system, which effects service upon all counsel of record. /s/ James O. Bickford James O. Bickford Case 1:16-cv-00574-RDM Document 15-4 Filed 02/10/17 Page 1 of 1