Judicial Watch, Inc. v. U.S. Dep't of State

344 F.Supp.3d 77

JUDICIAL WATCH, INC., Plaintiff,

v.U.S. DEPARTMENT OF STATE, Defendant.

Civil Case No. 14-1242

United States District Court, District of Columbia.

Signed December 6, 2018

Michael Bekesha, Ramona Raula Cotca, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Robert J. Prince, U.S. Department of Justice, Civil Division, Federal Programs Branch, Washington, DC, for Defendant.

MEMORANDUM OPINION

Royce C. Lamberth, United States District Judge

On his first full day in office, President Obama set a worthy standard for his administration's compliance with the Freedom of Information Act:

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

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

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

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

But in this case, faced with one of the gravest modern offenses to government transparency, his State and Justice Departments fell far short. So far short that the Court questions, even now, whether they are acting in good faith. Did Hillary Clinton use her private email as Secretary of State to thwart this lofty goal? Was the State Department's attempt to settle this FOIA case in 2014 an effort to avoid searching—and disclosing the existence of—Clinton's missing emails? And has State ever adequately searched for records in this case?

In July 2014, six months after Clinton resigned as Secretary of State, Judicial Watch filed this FOIA suit seeking emails from Clinton and her aides concerning the talking points former U.N. Ambassador Susan Rice used to defend the Obama Administration's response to the attack on the U.S. Embassy in Benghazi, Libya. Compl. ¶ 5, ECF No. 1. And although it would take more than six months for the public to learn Clinton exclusively used a private email account as Secretary, see Michael S. Schmidt, Hillary Clinton Used Personal Email Account at State Dept., Possibly Breaking Rules , N.Y. Times (Mar. 2, 2015), https://www.nytimes.com/2015/03/03/us/politics/hillary-clintons-use-of-private-email-at-state-department-raises-flags.html, department officials already knew Clinton's emails were missing from its records. See Rachel Bade, State Made Earlier Request for Clinton to Hand Over Emails , Politico (Feb. 16, 2016, 5:32 PM), https://www.politico.com/story/2016/02/hillary-clinton-emails-state-219341.

State played this card close to its chest. In November 2014, State told Judicial Watch it performed a legally adequate search and concluded settlement was appropriate, despite knowing Clinton's emails were missing and unsearched. 10/12/18 Tr. 14:2-7, ECF No. 53. In December 2014—the same day Clinton quietly turned over 55,000 pages of her missing emails—State gave Judicial Watch a draft Vaughn index making no mention of the unsearched records. See 5/1/15 Status Report ¶ 3, ECF No. 16. Judicial Watch declined to take State's word for it, requesting a search declaration. See 5/1/15 Status Report ¶ 3. A few weeks later, State filed a status report with this Court that failed to acknowledge the unsearched emails but suggested it was "possible to ... settle this case." 12/31/14 Status Report ¶ 3, ECF No. 10. After another month of radio silence—by then, at least three months after State realized it never searched Clinton's emails, and two months after Clinton gave the Department 30,490 of the 62,320 emails recovered from her private server (she deleted the rest)—State filed another status report admitting "additional searches for documents potentially responsive to the FOIA must be conducted" and asking for two months to conduct these searches. 2/2/15 Status Report ¶ 3, ECF No. 11. A month later, Judicial Watch read the New York Times and realized what State was talking about. See Pl.'s Mot.' Status Conf. ¶ 3, ECF No. 13. That story, along with reporting that Clinton's former Chief of Staff Cheryl Mills and former Deputy Chiefs of Staff Huma Abedin and Jake Sullivan also used personal email to conduct government business, see Pl's Mot. Status Conf. ¶ 3; Michael S. Schmidt, In Clinton Emails on Benghazi, Rare Glimpse at Her Concerns, N.Y. Times (Mar. 23, 2015), https://www.nytimes.com/2015/03/23/us/politics/in-clinton-emails-on-benghazi-a-rare-glirnpse-at-her-concerns.html, exposed State's deceit in this case.

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

The current Justice Department made things worse. When the government last appeared before the Court, counsel claimed "it's [not] true to say we misled either Judicial Watch or the Court." 10/12/18 Tr. 15:6-8. When accused of "doublespeak," counsel denied vehemently, feigned offense, and averred complete candor. 10/12/18 Tr. 16-17. When asked why State masked the inadequacy of its initial search, counsel claimed that the officials who initially responded to Judicial Watch's request didn't realize Clinton's emails were missing, and that it took them two months to "figure[ ] out what was going on" after the former-Secretary-turned-presumptive-presidential-candidate delivered twelve bankers boxes of emails. 10/12/18 Tr. 14:7-11. When asked why it took so long for State to own-up to the missing emails and to its initial search's deficiency, counsel cited "normal FOIA practice." 10/12/18 Tr. 41:21-22; see also 5/1/15 Status Report at 6, ECF No. 16 (calling this "a run-of-the-mill FOIA dispute").

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

I. DISCUSSION

With the government investigations concluded and discovery before Judge Sullivan winding down, Judicial Watch sought to verify the adequacy and good-faith of State's search in this case with requests for production and depositions bearing on State's responses to other inquiries. See Pl's Notice, ECF No. 50. For its part, State argued discovery is unnecessary because of the discovery before Judge Sullivan and the additional information made public since March 2016. See Def.'s Notice, ECF No. 51. Today the Court orders the parties to develop a discovery plan limited to three issues: whether Clinton used a private email to evade FOIA, whether State's attempts to settle the case despite knowing the inadequacy of its initial search constituted bad faith, and whether State's subsequent searches for responsive records have been adequate.

Although "[d]iscovery in FOIA is rare," Baker & Hostetler LLP v. Dep't of Commerce , 473 F.3d 312, 318 (D.C. Cir. 2006), "[t]he major exception ... is when the plaintiff raises a sufficient question as to the agency's good faith in processing documents." Landmark Legal Found., v. E.P.A. , 959 F.Supp.2d 175, 184 (D.D.C. 2013) (quoting U.S. Dep't of Justice, Guide to the Freedom of Information Act 812 (2009) ). In these cases, discovery verifies the government adequately searched for responsive records. See Weisberg v. Webster , 749 F.2d 864, 868 (D.C. Cir. 1984).

But in an even rarer subset of these cases, the government's response to a FOIA request smacks of outrageous misconduct. And these cases merit additional discovery into the government's motives. E.g. , Judicial Watch, Inc. v. Dep't of Commerce , 34 F.Supp.2d 28, 41 (D.D.C. 1998) ; see DiBacco v. U.S. Army , 795 F.3d 178, 192-93 (D.C. Cir. 2015) ; cf. Flowers v. I.R.S. , 307 F.Supp.2d 60, 71 (D.D.C. 2004).

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