Judicial Watch, Inc. v. U.S. Department of State ( 2017 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
v. Civil Action No. 15-689 (RDM)
U.S. DEPARTMENT OF STATE,
Defendant.
MEMORANDUM OPINION AND ORDER
In March 2015, Plaintiff Judicial Watch submitted three Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, requests for records to the U.S. Department of State. Those requests
sought release of records relating to former Secretary of State Hillary Clinton’s use of “a non-
‘state.gov’ email address” and “clintonemail.com email server.” See Dkt. 22-3 at 3, 21, 31. The
State Department did not provide a timely response to any of the three requests, prompting
Judicial Watch to file this action on May 6, 2015. See Dkt. 1. Subsequently, the State
Department conducted an extensive search, identified six responsive documents, released five of
those documents to Judicial Watch with partial redactions, and withheld one in full. See Dkt. 22-
1 at 5–6; Dkt. 26 at 4–5.
The parties have now cross-moved for summary judgment. Dkt. 22; Dkt. 26. Those
motions raise three questions: First, did the State Department properly withhold the Report of
Investigation (“ROI”) for former State Department employee Bryan Pagliano? Second, is there
any reasonably segregable, non-exempt information in the ROI that the State Department should
have released to Judicial Watch? Third, did the State Department properly redact portions of an
email chain between Secretary Clinton and General David Petraeus? For the reasons explained
below, the Court concludes that the answer to the first two questions is “yes,” and that the
answer to the third question is, in part, “yes,” and, in part, “perhaps.”
Accordingly, the Court will grant in part and deny in part the State Department’s motion
for summary judgment and will deny Judicial Watch’s cross-motion.
I. BACKGROUND
Between March 6, 2015, and March 9, 2015, Judicial Watch submitted three FOIA
requests to the State Department. Dkt. 22-4 at 1 (Def.’s SUMF ¶ 1). The first, dated March 6,
sought records relating to Secretary Clinton’s “use of a non-‘state.gov’ email address,” including
records “concerning security, classification, preservation, and compliance with the Federal
Records Act and/or [FOIA].” Dkt. 22-3 at 3. Judicial Watch’s second request, dated March 9,
sought “communications between officials” at the State Department and White House
concerning Secretary Clinton’s “use of non-‘state.gov’ email addresses.” Id. at 21. And the
third request, also dated March 9, sought records “related to expenses incurred in the creation,
maintenance[,] and/or use of the clintonemail.com email server domain.” Id. at 31.
On October 30, 2015, the State Department “completed its search for records potentially
responsive to [Judicial Watch’s] requests,” locating “approximately 16,900 pages” of potentially
responsive documents. Dkt. 11 at 2. The parties agreed that the State Department would
complete its review and production of the records by January 20, 2016, id. at 3, and, by that date,
the Department produced three documents to Judicial Watch, Dkt. 22-4 at 2 (Def.’s SUMF ¶ 7).
It also informed Judicial Watch that it was withholding a fourth document in full—an ROI
created as part of the background investigation into Bryan Pagliano, which was prepared in the
course of considering his appointment to a “Schedule C” position at the Department. Dkt. 26-1
at 12–13; see also Dkt. 22-4 at 2 (Def.’s SUMF ¶ 8). Prior to his appointment, Pagliano “ran
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technology for the Clinton for President campaign,” Dkt. 26-1 at 13, and, while at the State
Department, he served as an “IT specialist” to Secretary Clinton, Dkt. 26 at 21 (Pl.’s SUMF
¶ 13).
In mid-2016, the parties each moved for summary judgment. See Dkt. 17; Dkt. 18.
Among other issues, that original round of briefing raised the question whether the State
Department had conducted an adequate search for responsive records. See Dkt. 18 at 5–6. On
July 12, 2016, however, the FBI informed the State Department that it had “obtained certain
information that may include [State Department] agency records” and indicated that it would
“provid[e] this information to [the Department] for review” and “subsequent FOIA processing as
appropriate.” Dkt. 22-3 at 44. “The FBI transferred such information to [the] State
[Department]” in July and August 2016, and the Department “agreed to conduct searches of the
information being transferred” for “records responsive to [two of] [Judicial Watch’s] FOIA
requests.” Dkt. 22-2 at 24–25 (Second Stein Decl. ¶ 64). After reviewing the newly acquired
documents, the State Department released two additional documents to Judicial Watch, including
an email exchange between Secretary Clinton and General David Petraeus. Dkt. 22-4 at 2
(Def.’s SUMF ¶ 11). That email exchange involved a staffing issue and a recommendation
regarding dealing with a foreign leader. Dkt. 22-1 at 18. Because Judicial Watch “indicated that
it wishe[d]” to add “challenge[s] [to] the redactions applied” to the email exchange and to “the
adequacy of [State’s] supplemental search” to its initial set of challenges, the parties “propose[d]
that the Court deny the pending cross-motions for summary judgment as moot” and set a new
schedule for summary judgment briefing that would “encompass all of the matters . . . currently
at issue” in the litigation. Dkt. 21 at 1. The Court accepted the parties’ proposal, see Minute
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Order (Oct. 28, 2016), and the parties subsequently filed the cross-motions for summary
judgment that are currently before the Court, see Dkt. 22; Dkt. 26.
II. LEGAL STANDARD
The Freedom of Information Act is premised on the notion that an informed citizenry is
“vital to the functioning of a democratic society, needed to check against corruption and to hold
the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). It thus mandates that an agency disclose records on request, unless they fall within
one of nine exemptions. “These exemptions are explicitly made exclusive and must be narrowly
construed.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011) (citation and internal quotation
marks omitted). FOIA cases are typically resolved on motions for summary judgment under
Federal Rule of Civil Procedure 56. See, e.g., Shapiro v. U.S. Dep’t of Justice, 153 F. Supp. 3d
253, 268 (D.D.C. 2016). To prevail on a summary judgment motion, the moving party must
demonstrate that there are no genuine issues of material fact and that he or she is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317,
325 (1986). In a FOIA action, “the Court may award summary judgment to an agency solely on
the basis of information provided in affidavits or declarations that describe ‘. . . the justifications
for nondisclosure [of records] with reasonably specific detail . . . and are not controverted by
either contrary evidence in the record nor by evidence of agency bad faith.’” Thomas v. FCC,
534 F. Supp. 2d 144, 145 (D.D.C. 2008) (alterations in original) (quoting Military Audit Project
v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981)). The Court reviews the agency’s decision de
novo, and the agency bears the burden of sustaining its action. 5 U.S.C. § 552(a)(4)(B).
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III. ANALYSIS
A. Pagliano ROI
The State Department asserts that it properly withheld Pagliano’s ROI in full under FOIA
Exemptions 7(C) and 7(E). Dkt. 22-1 at 12–17. Those exemptions apply to records “compiled
for law enforcement purposes,” the disclosure of which “could reasonably be expected to
constitute an unwarranted invasion of personal privacy,” 5 U.S.C. § 552(b)(7)(C), or “would
disclose techniques and procedures for law enforcement investigations,” id. § 552(b)(7)(E).
The Department further argues that, after “review[ing] [the ROI] on a line-by-line basis,”
it has determined that “there is no additional non-exempt information that may reasonably be
segregated and released.” Dkt. 22-1 at 20. Judicial Watch, in turn, responds that the State
Department has failed to satisfy Exemption 7’s threshold requirement that the ROI was
“compiled for law enforcement purposes,” Dkt. 26 at 8–10; that the Exemption 7(C) balancing
test favors disclosure, id. at 11–13; that the Department has failed to demonstrate that
information contained in the ROI would reveal law enforcement techniques within the meaning
of Exemption 7(E), id. at 13; and that the Court should perform an in camera review of the ROI
to determine if there are any segregable portions that can be released, id. at 16–17.1
1. Exemption 7(C)
Exemption 7(C) protects from disclosure “records or information compiled for law
enforcement purposes,” but “only to the extent that” disclosure “could reasonably be expected to
constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). Accordingly,
1
The State Department also invokes FOIA Exemption 6 to justify withholding the ROI in full,
but because the Court sustains the Department’s action under Exemption 7, it need not consider
whether this additional exemption is also available. See Roth v. U.S. Dep’t of Justice, 642 F.3d
1161, 1173 (D.C. Cir. 2011) (noting that Exemption 7(C)’s “broader” protections necessarily
apply to “all information that would fall within the scope of Exemption 6”); see also Bartko v.
U.S. Dep’t of Justice, 79 F. Supp. 3d 167, 171–72 (D.D.C. 2015).
5
to invoke Exemption 7(C), the State Department must satisfy a two-part test: First, it must
“make a threshold showing that . . . [Pagliano’s ROI] w[as] compiled for a law enforcement
purpose.” Lindsey v. FBI, --- F. Supp. 3d ---, No. 16-2302, 2017 WL 4179886, at *3 (D.D.C.
Sept. 20, 2017) (internal quotation marks omitted). Second, it must demonstrate that disclosure
of the ROI “could reasonably be expected to constitute an unwarranted invasion of personal
privacy.” Tracy v. U.S. Dep’t of Justice, 191 F. Supp. 3d 83, 95 (D.D.C. 2016) (quoting 5 U.S.C.
§ 552(b)(7)(C)).
a. Compiled for Law Enforcement Purposes
To establish that Pagliano’s ROI was “compiled for law enforcement purposes,” the State
Department “need only ‘establish a rational nexus between the investigation and one of [the
Department’s] law enforcement duties and a connection between an individual or incident and a
possible security risk or violation of federal law.’” Blackwell v. FBI, 646 F.3d 37, 40 (D.C. Cir.
2011) (quoting Campbell v. Dep’t of Justice, 164 F.3d 20, 32 (D.C. Cir. 1998)). “The term ‘law
enforcement’ in Exemption 7 refers to the act of enforcing the law, both civil and criminal.”
Pub. Emps. for Envtl. Responsibility v. U.S. Section, Int’l Boundary & Water Comm’n (PEER),
740 F.3d 195, 203 (D.C. Cir. 2014).
The Department argues that Pagliano’s ROI meets that standard because “it was created
by State’s Bureau of Diplomatic Security (‘DS’) as part of a security clearance background
investigation.” Dkt. 22-1 at 14 (citing Dkt. 22-2 at 29, 32 (Second Stein Decl. ¶¶ 77, 84–85)). It
asserts that DS is the “law enforcement arm of State,” and that the ROI is “an investigative
document utilized by law enforcement . . . entities . . . for security clearance related purposes.”
Id. (quoting Dkt. 22-2 at 29 (Second Stein Decl. ¶¶ 76–77)). Judicial Watch, for its part,
responds that the ROI is merely “a report memorializing a required, routine background
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check/investigation” that is done “for all high level employees” and that is “performed as an
administrative duty.” Dkt. 26 at 10.
The State Department has the better of the argument. It is well established that
“[b]ackground investigations conducted to assess an applicant’s qualifications, such as [an
agency’s] clearance and investigatory processes, inherently relate to law enforcement.” Morley
v. CIA, 508 F.3d 1108, 1128–29 (D.C. Cir. 2007) (internal quotation marks omitted). The D.C.
Circuit’s decision in Mittleman v. Office of Personnel Management, 76 F.3d 1240 (D.C. Cir.
1996), is instructive. In that case, the plaintiff “requested copies of [the] investigative file” that
the Office of Personnel Management (“OPM”) had compiled during “a background investigation
. . . in connection with her eligibility for a ‘critical sensitive’ security clearance,” and OPM
withheld them pursuant to Exemption 7(D). Mittleman, 76 F.3d at 1241–42. The plaintiff
claimed that Exemption 7(D) did not apply to her background check records because they were
not “compiled for law enforcement purposes.” Id. at 1242. But the Court of Appeals rejected
the argument, observing that “[t]he principal purpose of a background investigation is to ensure
that a prospective employee has not broken the law or engaged in other conduct making her
ineligible for the position.” Id. at 1243. Because the background check helps “to determine
whether there are any law enforcement or security issues” in an applicant’s “past that could
affect her ability to carry out the position,” the D.C. Circuit concluded that “OPM’s background
investigation information was compiled for ‘law enforcement purposes.’” Id. (internal quotation
marks and alterations omitted).
The same conclusion holds here. In support of its position, the State Department offers
the declaration of Eric Stein, the “Acting Co-Director of the Office of Information Programs and
Services.” Dkt. 22-2 at 1 (Second Stein Decl. ¶ 1). Stein attests that Pagliano’s ROI was
7
“created” by DS, the “law enforcement arm of State” that is responsible for “protect[ing] people,
information, and property” and “conduct[ing] personnel security investigations.” Dkt. 22-2 at 29
(Second Stein Decl. ¶ 76). An ROI, Stein further attests, is “an investigative document utilized
by law enforcement and personnel adjudication entities within DS for the purpose of
investigating the private background of an individual for security clearance related purposes
and/or adjudication of suitability for a sensitive position within the U.S. Government.” Id. at 29
(Second Stein Decl. ¶ 77). It is prepared as part of a “Single Scope Background Investigation”
(“SSBI”), which is a “type of security clearance investigation” used “to determine whether the
subject [of the SSBI] possesses sufficient reliability, trustworthiness, and ability to protect
classified information and to hold a sensitive government position.” Dkt. 22-2 at 32 (Second
Stein Decl. ¶¶ 84–85). In other words, the State Department produces ROIs as part of a process
to determine if a potential employee has any law enforcement- or security-related issues in his
background that might indicate that he should not be entrusted with classified information or that
he might pose a security risk to the Department.
Stein’s declaration—which is entitled to a presumption of good faith, see Clemente v.
FBI, 867 F.3d 111, 117 (D.C. Cir. 2017)—places this case on all fours with the D.C. Circuit’s
decisions in Mittleman and Morley, and Judicial Watch makes no effort to distinguish those
cases. In addition, multiple decisions of this Court have concluded that records related to
background investigations fall within Exemption 7’s ambit,2 and a decision in the Northern
2
See, e.g., Henderson v. Office of the Dir. of Nat’l Intelligence, 151 F. Supp. 3d 170, 175–77
(D.D.C. 2016) (citing Morley and Mittleman to conclude that documents “set[ting] forth the
[background check investigation] process used by the defendants in their efforts to prevent bad
actors from obtaining access to sensitive government information” satisfied Exemption 7’s “law
enforcement purpose” requirement); Archibald v. U.S. Dep’t of Justice, 950 F. Supp. 2d 80, 87
(D.D.C. 2013) (determining that Exemption 7 applied to the “background check on a presidential
candidate” and citing Mittleman for the proposition that “background checks by nature implicate
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District of Illinois has applied Mittleman’s analysis to the specific situation now before the
Court, concluding that “documents related to [DS’s] background check” of an applicant satisfied
Exemption 7’s “compiled for law enforcement purposes” requirement, Erwin v. U.S. Dep’t of
State, No. 11-C-6513, 2013 WL 6452758, at *6 (N.D. Ill. Dec. 9, 2013).
The Court, accordingly, concludes that the State Department has demonstrated that
Pagliano’s ROI was compiled for law enforcement purposes within the meaning of Exemption 7.
b. Balancing
Next, the Court must determine whether release of Pagliano’s ROI “could reasonably be
expected to constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).
“In deciding whether the release of [Pagliano’s ROI] constitutes an ‘unwarranted’ invasion of
privacy under Exemption 7(C),” ACLU v. U.S. Dep’t of Justice, 655 F.3d 1, 6 (D.C. Cir. 2011),
the Court “must balance the public interest in [its] disclosure against the [privacy] interest
Congress intended the Exemption to protect,” id. (quoting U.S. Dep’t of Justice v. Reporters
Comm. for Freedom of the Press, 489 U.S. 749, 776 (1989)) (second alteration in original).
Here, as the State Department concluded, see Dkt. 22-2 at 30, 33–34 (Second Stein Decl. ¶¶ 80,
87, 89), that balance tips decisively in favor of the Department’s decision to withhold the ROI.
First, the privacy interest at stake is a weighty one. Pagliano’s ROI was produced after a
“security clearance investigation” that “require[d] an intensely personal set of inquiries into [his]
life,” including an examination of his “psychological conditions, alcohol consumption, [and]
law enforcement interests”); Doe v. U.S. Dep’t of Justice, 790 F. Supp. 17, 19–20 (D.D.C. 1992)
(concluding that an “[i]nvestigative background check[] performed by the FBI” met Exemption
7’s threshold requirement because its “principal purpose” was “to assure that a prospective
Justice Department employee had not himself broken the law, and to determine whether there
[we]re any law enforcement or security issues in his past that could affect his ability . . . to carry
out the Department’s mission”).
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sexual behavior.” Id. at 32–33 (Second Stein Decl. ¶¶ 85–86). As a result, his ROI contained
“personal information” pertaining to his “relationships, character assessments, financial details,
and medical information,” as well as information pertaining to third parties interviewed by the
State Department during the investigation. Dkt. 22-2 at 33 (Second Stein Decl. ¶ 87). The
Supreme Court has “held ‘as a categorical matter’ that ‘a third party’s request for law
enforcement records or information about a private citizen can reasonably be expected to invade
that citizen’s privacy,” ACLU, 655 F.3d at 8 (quoting Reporters Comm., 489 U.S. at 780), and it
is difficult to contemplate an agency record with a more pronounced privacy interest than an ROI
produced as part of a comprehensive background check that analyzes the subject’s
“psychological conditions, alcohol consumption, [and] sexual behavior.” Cf. Quiñon v. FBI, 86
F.3d 1222, 1230 (D.C. Cir. 1996) (“[W]hile it is true that [g]overnment officials may have a
somewhat diminished privacy interest . . . they do not surrender all rights to personal privacy
when they accept a public appointment.” (internal quotation marks and alteration omitted)).
On the other side of the scale, the Court must weigh “the extent to which disclosure” of
the ROI would further “‘the basic purpose of’” FOIA, which is “‘to open agency action to the
light of public scrutiny’” and advance “‘citizens’ right to be informed about what their
government is up to.’” ACLU, 655 F.3d at 6 (quoting Reporters Comm., 489 U.S. at 772–73).
Records that “reveal[] little or nothing about an agency’s own conduct” do not further the public
interest embraced by Exemption 7(C); rather, it is “information that sheds light on an agency’s
performance of its statutory duties [that] falls squarely within th[e] statutory purpose” of the
exemption. Reporters Comm., 489 U.S. at 773 (internal quotation marks omitted). Judicial
Watch, however, has offered little basis for the Court to conclude that “the public interest sought
to be advanced is a significant one, [that it is] an interest more specific than having the
10
information for its own sake” and that the requested disclosure “is likely to advance that
interest.” Nat’l Archives and Records Admin. v. Favish, 541 U.S. 157, 172 (2004). Instead, it
merely asserts that the “public interest in knowing more about the . . . employee [who]
. . . maintained and serviced the private email server system is enormous,” Dkt. 26 at 12, and it
claims that the “[r]elease of Pagliano’s ROI will reveal much about [the] State Department’s
conduct in performing its investigative obligation in providing Pagliano’s security clearance,”
Dkt. 29 at 2, and “may shed further light on the truth of the Clinton email arrangement,” Dkt. 26
at 11.
After balancing these competing interests, the Court concludes that the scale tips in favor
of the State Department’s decision to withhold Pagliano’s ROI. First, Judicial Watch offers no
reason to believe—other than its bare speculation—that the ROI might shed light on Secretary
Clinton’s use of the “clintonemail.com server” or “non-‘state.gov’” email address. See Favish,
541 U.S. at 174 (explaining that “where there is a privacy interest protected by Exemption 7(C)
and the public interest being asserted is to show that responsible officials acted . . . improperly in
the performance of their duties, the requester must establish more than a bare suspicion in order
to obtain disclosure”). Second, whatever public interest there might be in learning intimate
personal details about a State Department employee tasked with a high-profile position, that
interest is not the type contemplated by Exemption 7(C). The information collected during
Pagliano’s background check and summarized in the ROI—details about his personal
relationships, mental and physical health, and financial history—provides minimal, if any,
insight about how State conducts its business. Third, the fact that the State Department placed
great “trust and confidence” in Pagliano does nothing to distinguish him from thousands of other
government employees and members of the military who perform sensitive duties of enormous
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national importance and who—like Pagliano—have substantial privacy interests in the
information contained in their background checks and ROIs.
The Court, therefore, concludes that State properly withheld Pagliano’s ROI on the basis
of Exemption 7(C).
2. Exemption 7(E)
The State Department also invokes FOIA Exemption 7(E) to protect Pagliano’s ROI.
Like Exemption 7(C), this exemption requires a two-step inquiry. The first step, moreover, is the
same under both provisions—that is, the Court must determine whether the records were
compiled for law enforcement purposes. Because the Court has just resolved that question for
purposes of Exemption 7(C), it need not repeat that analysis here.
The second step requires additional discussion, but is equally straightforward. The Court
must determine whether release of those records “would disclose techniques and procedures for
law enforcement investigations or prosecutions, or would disclose guidelines for law
enforcement investigations or prosecutions if such disclosure could reasonably be expected to
risk circumvention of the law.” 5 U.S.C. § 552(b)(7)(E). As the D.C. Circuit has observed, there
is some disagreement about whether the final clause, which asks whether the disclosure would
pose a “risk of circumvention of the law,” applies only to the disclosure of “guidelines” or
whether it also applies to the disclosure of “techniques and procedures.” PEER, 740 F.3d at 204
n.4. But, as the Court of Appeals has also observed, “given the low bar posed by the ‘risk of
circumvention of law’ requirement, it is not clear that the difference matters much in practice.”
Id.
Treating the “risk of circumvention of law” requirement as applicable to the disclosure of
“techniques and procedures,” as the D.C. Circuit has done in the past, see Blackwell, 646 F.3d at
12
41–42, the Court nonetheless concludes that the Pagliano ROI is protected by Exemption 7(E).
“Exemption 7(E) sets a relatively low bar for the agency to justify withholding: Rather than
requiring a highly specific burden of showing how the law will be circumvented, [E]xemption
7(E) only requires that the [agency] demonstrate logically how the release of the requested
information might create a risk of circumvention of the law.” Id. at 42 (internal quotation marks
omitted). Reduced to its minimum, the exemption requires only a “chance of a reasonably
expected risk.” Mayer Brown LLP v. IRS, 562 F.3d 1190, 1193 (D.C. Cir. 2009).
“It is self-evident that information revealing security clearance procedures could render
those procedures vulnerable and weaken their effectiveness at uncovering background
information on potential candidates.” Morley, 508 F.3d at 1129. Yet, that is precisely the type
of information that Stein has attested would be disclosed if the Pagliano ROI were released. He
asserts, for example, that “[t]he ROI contains information demonstrating specific techniques and
procedures used by DS personnel while conducting background investigations, including
methods for verifying information and cooperating with other law enforcement bodies.” Dkt.
22-2 at 34 (Second Stein Decl. ¶ 90). That assertion comports with common sense. Knowing
what information DS personnel consider, where they look, and how they evaluate that
information necessarily reveals their techniques and procedures, and disclosing that information
poses “a chance of a reasonably expected risk” of circumvention.
The Court, accordingly, concludes that the State Department’s reliance on Exemption
7(E) was also justified.
3. Segregability
The Court must also consider whether the State Department has met its burden of
demonstrating that there was no reasonably segregable, non-exempt information contained in the
13
ROI that it could release in response to Judicial Watch’s FOIA request. FOIA provides that
“[a]ny reasonably segregable portion of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt.” 5 U.S.C. § 552(b). “While the
segregability requirement applies to all documents and all exemptions in the FOIA,” the courts
have recognized that “segregation is not required where the ‘exempt and nonexempt information
are inextricably intertwined, such that the excision of exempt information would impose
significant costs on the agency and produce an edited document with little informational
value.’” Covington v. McLeod, 646 F. Supp. 2d 66, 72 (D.D.C. 2009) (quoting Mays v. Drug
Enf’t Admin., 234 F.3d 1324, 1327 (D.C. Cir. 2000)) (first citation omitted). The government
bears “the burden of justifying nondisclosure,” Mead Data Cent., Inc. v. U.S. Dep’t of the Air
Force, 566 F.2d 242, 260 (D.C. Cir. 1977), and must “show with reasonable specificity why the
documents cannot be further segregated,” Armstrong v. Exec. Office of the President, 97 F.3d
575, 578 (D.C. Cir. 1996) (internal quotation marks omitted). To carry this burden, the
government must provide a “‘detailed justification’ for [withheld records’] non-
segregability.” Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002)
(quoting Mead, 566 F.2d at 261).
The State Department has met its burden here. The Stein declaration explains that the
Department “conducted a line-by-line review of the ROI and determined that no reasonably
segregable, non-exempt material could be released.” Dkt. 22-2 at 35 (Second Stein Decl. ¶ 91).
Stein also explains that, “[b]ecause the nature of an ROI for an SSBI is to inquire into the most
intimate aspects of an individual’s life[,] . . . the entire ROI involves privacy-sensitive material.”
Id. (Second Stein Decl. ¶ 91). This “sensitive, personal information,” moreover, was
“inextricably intertwined with DS’s discussion and analysis of the information,” and,
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accordingly, “there was no additional, meaningful, non-exempt information that could be
reasonably segregated and released.” Id. at 33 (Second Stein Decl. ¶ 87). And, it is difficult to
imagine how the State Department could disclose portions of the ROI without revealing its
underlying law enforcement techniques and procedures—the fact that even a seemingly
innocuous detail appears in the report conveys something about what the Department believes is
significant or might lead to other relevant information.
For its part, Judicial Watch does not meaningfully contest the adequacy or accuracy of
State’s segregability analysis. Rather, in a conclusory fashion, it states that “[t]here are certainly
facts that could be released without invading . . . Pagliano’s privacy,” and then requests that the
Court conduct “in camera review of the [ROI]”3 because State “has insufficiently provided
enough detail.” Dkt. 26 at 16–17. The Court declines the invitation. The D.C. Circuit has
instructed that “a district court should conduct in camera review . . . in two situations”: First, “if
the affidavits . . . are conclusory” and second, “if there is evidence of agency bad faith.” Carter
v. U.S. Dep’t of Commerce, 830 F.2d 388, 392–93 (D.C. Cir. 1987). Although “in camera
inspection” may be appropriate “when the requested documents ‘are few in number and of short
length,’” id. at 393 (quoting Allen v. CIA, 636 F.2d 1287, 1298 (D.C. Cir. 1980)), courts “should
not . . . resort[] to [it] as a matter of course, simply on the theory that ‘it can’t hurt,’” Quiñon, 86
F.3d at 1228 (quoting Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978)). Here, although the
ROI is relatively short—sixteen pages—Stein attests that the Department engaged in a “line-by-
line” review to ensure that there was no reasonably segregable information it could release, and
Judicial Watch points to no evidence that State acted in bad faith. As such, there is no reason for
3
Judicial Watch’s cross-motion for summary judgment asks the Court for “in camera review of
the time records . . . in this case.” Dkt. 26 at 17. Because no “time records” are at issue, the
Court assumes that Judicial Watch meant to seek in camera review of the ROI.
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the Court to review the ROI in camera, and the Court concludes that the Department has
adequately demonstrated that there was no reasonably segregable, non-exempt material in the
ROI that it could release to Judicial Watch.
Accordingly, the Court will grant summary judgment to the State Department as to its
withholding in full of Pagliano’s ROI.
B. Email Chain
Judicial Watch also challenges the State Department’s invocation of Exemptions 5 and 6
to justify its partial redaction of the email chain between Secretary Clinton and General Petraeus.
Dkt. 26 at 14–16. It asserts that the email chain, which discussed potential personnel decisions,
is “properly characterized” as “a few personal messages between friends” and “indicates no
discussion about strategy, policy or government action” that would implicate Exemption 5’s
concern of countering the “chilling effect” that disclosing “policy deliberations” might have on
“similar communications in the future.” Id. at 15. Judicial Watch also argues that the
“identification of any third party discussed as [a] subject of a personal favor between high-
ranking friends . . . does not constitute an unwarranted invasion of privacy” such that his or her
name should be redacted under Exemption 6. Id. at 16. The Court addresses each exemption in
turn.
1. Exemption 5
Exemption 5 shields 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 “deliberative process privilege is one of the litigation
privileges incorporated into Exemption 5,” allowing “an agency to withhold ‘all papers which
reflect the agency’s group thinking in the process of working out its policy and determining what
its law shall be.’” Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 4 (D.C. Cir.
16
2014) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 153 (1975)). The privilege is
“limited to documents that are ‘predecisional’ and ‘deliberative,’ meaning they reflect advisory
opinions, recommendations, and deliberations comprising part of a process by which
governmental decisions and policies are formulated.” Id. at 7 (internal quotation marks and
alteration omitted); see also Judicial Watch, Inc. v. FDA, 449 F.3d 141, 151 (D.C. Cir.
2006) (“[A] document [is] predecisional if ‘it was generated before the adoption of an agency
policy’ and deliberative if ‘it reflects the give-and-take of the consultative process.’”). Where
records reflect such predecisional deliberations, the privilege “protects agencies from being
‘forced to operate in a fishbowl.’” Elec. Frontier Found., 739 F.3d at 4 (internal quotation
marks omitted).
The State Department explains that the “information withheld [in the email chain]
contains the author’s opinions and recommendations as to potential personnel appointments [at
the State Department] and suggestions for an upcoming diplomatic engagement with a foreign
head of state.” Dkt. 22-1 at 18 (citing Dkt. 22-2 at 31 (Second Stein Decl. ¶ 82)). It further
asserts that the withheld material is “predecisional” because the actions discussed had not yet
been taken, and it contends that release of the email chain in full would “have a chilling effect on
the open and frank exchange of ideas, recommendations, and opinions that occurs when U.S.
Government officials are developing a strategy for official action.” Id. Judicial Watch responds
that the chain is merely “an inquiry between friends regarding a personal favor,” and it disputes
that its disclosure would have a chilling effect on any future communications. Dkt. 26 at 15.
After a review of the redacted email exchange, Dkt. 26-1 at 6–7, and Stein’s declaration,
Dkt. 22-2 at 31–32 (Second Stein Decl. ¶¶ 82–83), the Court concludes that the State Department
appropriately redacted the documents pursuant to Exemption 5. First, the Court notes that,
17
although the email chain straddles the time before and after Secretary Clinton’s appointment, the
Department relies on Exemption 5 to protect only communications following her appointment.
As a result, the Court is not confronted with the question whether the deliberative process
privilege applies to those engaged in the transition between administrations or to nominees who
are preparing to take on the duties of government. Cf. Wolfe v. Dep’t of Health & Human Servs.,
711 F.2d 1077 (D.C. Cir. 1983) (evaluating whether records produced by transition team
members are agency records subject to FOIA).
Second, the Court is unpersuaded that this email exchange “is properly characterized” as
merely a “friendly correspondence” between “intimate friend[s],” Dkt. 26 at 15, that necessarily
falls outside the reach of the deliberative process privilege. To the contrary, the exchange was
between the Commander of the U.S. Central Command and the U.S. Secretary of State, and it
involved “suggested actions to be taken toward a particular foreign head of state” and “potential
personnel appointments in the Department” of State. Dkt. 22-2 at 31 (Second Stein Decl. ¶ 82).
That description represents precisely the type of predecisional “agency[] group thinking” meant
to “work[] out” State’s policy as to two of its key responsibilities—staffing itself and interacting
with foreign dignitaries. Elec. Frontier Found., 739 F.3d at 4 (internal quotation marks omitted).
Third, the unredacted portions of the exchange provided by Judicial Watch corroborate
Stein’s description. General Petraeus, for example, “[s]trongly recommend[s]” that she take
some action. Dkt. 26-1 at 6. The Court, accordingly, has no reason to doubt Stein’s
representation that these exchanges between senior government officials about foreign affairs
and appointments fall well within the scope of the deliberative process privilege and are thus
protected by Exemption 5.
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The Court, therefore, concludes that State properly redacted the email exchange pursuant
to Exemption 5’s deliberative process privilege.
2. Exemption 6
“Exemption 6 protects information about individuals in ‘personnel and medical files and
similar files’ when its disclosure ‘would constitute a clearly unwarranted invasion of personal
privacy.’” Shapiro v. U.S. Dep’t of Justice, 153 F. Supp. 3d 253, 257 (D.D.C. 2016) (quoting 5
U.S.C. § 552(b)(6)). The D.C. Circuit has explained that the exemption can sweep in “bits of
personal information, such as names,” Judicial Watch, 449 F.3d at 152, but the mere fact that an
agency file or record contains personal, identifying information is not enough to invoke
Exemption 6—the information must also be “of such a nature that its disclosure would constitute
a clearly unwarranted privacy invasion,” Nat’l Ass’n of Home Builders v. Norton, 309 F.3d 26,
32 (D.C. Cir. 2002). To make that determination, “the Court [must] employ[] a balancing test,
weighing ‘the private interest involved (namely the individual’s right of privacy) against the
public interest (namely, the basic purpose of [FOIA], which is to open agency action to the light
of public scrutiny).’” People for the Am. Way Found. v. Nat’l Park Serv., 503 F. Supp. 2d 284,
304 (D.D.C. 2007) (quoting Judicial Watch, 449 F.3d at 153). “In undertaking this analysis, the
[C]ourt is guided by the instruction that, under Exemption 6, the presumption in favor of
disclosure is as strong as can be found anywhere in [FOIA].” Nat’l Ass’n of Home Builders, 309
F.3d at 32 (internal quotation marks omitted).
Judicial Watch has disclaimed any objection to State’s redaction of “personal email
addresses and contact information” and challenges only its decision to redact the names of “any
third party discussed” in the email chain as a potential personnel appointment. Dkt. 26 at 16; see
also Dkt. 28 at 14. A number of additional redactions, moreover, were covered by both
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Exemptions 5 and 6, and because the Court has already concluded that the Department has
appropriately invoked Exemption 5, the Court need not consider whether Exemption 6 also
applies to those redactions. This, then, leaves only two redactions. The first is contained in a
January 14, 2009, email from General Petraeus to Secretary Clinton. In redacted form, that
email says: “P.S. Any feedback on possibility of keeping [redacted] until his replacement is
confirmed? As you recall this was a personal request from [redacted]. Best – Dave.” Dkt. 26-1
at 7. And the second, again sent from General Petraeus to Secretary Clinton states: “Thx for
making it happen [redacted]. Great news.” Id.
To determine whether the State Department properly redacted the names from those
emails under Exemption 6, the Court must balance the privacy interest of the individuals with
respect to the public disclosure of their identities against the public interest in that disclosure. To
do so, the Court “must first determine whether . . . disclosure would compromise a substantial, as
opposed to a de minimis, privacy interest.” Nat’l Ass’n of Retired Fed. Emps. v. Horner, 879
F.2d 873, 874 (D.C. Cir. 1989). If so, the Court must then “weigh that privacy interest in non-
disclosure against the public interest in the release of records in order to determine whether, on
balance, disclosure would work a clearly unwarranted invasion of personal privacy.” Id.
There is little evidence or argument before the Court with respect to how to strike this
balance. In its opening brief, the State Department merely asserts that “[r]elease of this
information could subject these individuals to unwanted attention and harassing inquiries,” Dkt.
22-1 at 19–20, and, in its reply brief, it simply adds that “Plaintiff provides no argument as to
why the release of the names of personnel suggested for appointment under a different
administration, more than eight years ago, would be of any public interest today,” Dkt. 28 at 14.
The analysis offered by Judicial Watch, for its part, is equally brief and conclusory. It merely
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asserts that “identification of any third party discussed as [the] subject of a personal favor
between high-ranking friends in the email exchange at issue does not constitute an unwarranted
invasion of privacy for purposes of FOIA.” Dkt. 26 at 16.
Based on this minimal record, the Court is unable to determine whether Exemption 6
covers the two redactions. It is certainly an overstatement, on the one hand, to claim that the
identity of those considered for appointment to public office—even eight years ago—is of no
public interest. Yet, on the other hand, it is equally possible that the specific appointment
discussed in the email exchange is, in fact, of no public interest. Nor can the Court assess the
relevant privacy interests on the present record. Again, it is easy to imagine a set of facts that
might implicate substantial privacy concerns, and it is equally easy to image a scenario under
which a reasonable person would not care about a disclosure—and, indeed, might even welcome
it.
The Court, accordingly, concludes that it cannot grant summary judgment in favor of
either party on this issue on the present record. In order to expedite resolution of this one
remaining issue, the Court will direct that the Department file a supplemental declaration
addressing the specific privacy interests at stake and that it provide the Court with unredacted
copies of General Petraeus’s emails to Secretary Clinton dated January 10, 2009, and January 14,
2009, for in camera inspection. The Court will then permit the parties to renew their respective
motions for summary judgment on this one issue. Because Judicial Watch does not object to the
remaining redactions based solely on Exemption 6, which simply obscured General Petraeus’s
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email address, the Court will grant summary judgment in favor of the State Department on that
issue.4
CONCLUSION
For the reasons explained above, the Court GRANTS in part and DENIES in part State’s
motion for summary judgment, Dkt. 22, and DENIES Judicial Watch’s cross-motion for
summary judgment, Dkt. 26.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: September 30, 2017
4
Earlier in this litigation, Judicial Watch objected to the adequacy of the Department’s initial
search for responsive documents. See Dkt. 18 at 5 (“The Defendant has failed to meet its burden
of proof regarding the sufficiency of its search.”). It now concedes that the supplemental
declaration submitted by the Department suffices to meet its burden on this point and that
Judicial Watch “is not challenging the adequacy of Defendant’s initial search for responsive
records.” Dkt. 26 at 7 n.1. Nor has it challenged the adequacy of the supplemental searches.
The Court, moreover, having reviewed the Department’s thorough declarations setting out the
procedures used to effect the searches, Dkt. 17-2 (First. Stein Decl.); Dkt. 22-2 (Second Stein
Decl.), concurs with the assessment that the searches were adequate. “An agency fulfills its
obligations . . . if it can demonstrate beyond material doubt that its search was ‘reasonably
calculated to uncover all relevant documents.’” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d
321, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)).
The State Department has done that. Its declarations lay out the search process with sufficient
detail for the Court to conclude that they were “reasonably calculated to uncover all relevant
documents,” id. at 325, and they explain which search terms were used, which record systems
were queried, and why the combination of systems and terms would produce all the relevant
documents. See Dkt. 17-2 at 5–24 (First Stein Decl. ¶¶ 18–61); Dkt. 22-2 at 6–25 (Second Stein
Decl. ¶¶ 20–65). The Court, accordingly, concludes that each search was “reasonably calculated
to uncover all relevant documents.” Truitt, 897 F.3d at 542.
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