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

557 F.Supp.3d 52

JUDICIAL WATCH, INC., Plaintiff,

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

Case No. 20-cv-124 (CRC)

United States District Court, District of Columbia.

Signed August 17, 2021

Jason Blaine Aldrich, Paul J. Orfanedes, Judicial Watch, Inc., Washington, DC, for Plaintiff.

Derek S. Hammond, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

CHRISTOPHER R. COOPER, United States District Judge

In this Freedom of Information Act ("FOIA") case, Plaintiff Judicial Watch, Inc. seeks records pertaining to the U.S. Department of State's use of CrowdTangle, a social media analytics program capable of tracking users’ activity across multiple platforms. Judicial Watch believes that the State Department may have misused CrowdTangle to track the social media activity of U.S.-based journalists in 2019. The State Department has released some documents to Judicial Watch but partially withheld others, relying primarily on the deliberative process privilege. Both sides now seek summary judgment regarding the propriety of those withholdings.

After reviewing the record, the Court is persuaded that all of the disputed withholdings were proper. The State Department has demonstrated that the information in question falls within the deliberative process privilege and that releasing it would cause foreseeable harm. The agency is therefore entitled to summary judgment.

I. Background

Judicial Watch is a non-profit organization that "regularly requests records from federal agencies pursuant to FOIA" and disseminates information from those records. Compl. ¶ 3. In 2019, Judicial Watch began investigating an allegation that employees of the U.S. Embassy in Kyiv, Ukraine were using CrowdTangle to monitor social media activity by several American journalists and by Donald Trump, Jr. Pl. Mem. Opp'n to Def. Mot. Summ. J. ("Pl. Opp'n") at 1, ECF No. 16. According to Judicial Watch, this "surveillance began in the Spring of 2019 in response to an investigation by U.S. journalists into President Joe Biden's son, Hunter Biden, who was employed by the Ukrainian based company Burisma Holdings from April 2014 until April 2019." Id.

To learn more about this matter, Judicial Watch submitted a FOIA request to the State Department in October 2019, seeking the following records for the period between January 2019 and the date of the request:

1. Any and all records regarding, concerning, or related to the Department of State's use of the CrowdTangle social media monitoring program to monitor, compile, and/or analyze the social media activity of any U.S.-based journalist, reporter, or media commentator. This request includes, but is not limited to, the following:

• Any and all records identifying the social media accounts subject to any such monitoring or analysis.

• Any and all reports or analyses generated via the CrowdTangle program.

• Any and all related records of communication between any official, employee, or representative of the Department of State and any other individual or entity.

2. Any and all contracts, purchase agreements, or similar records documenting any payments made by the Department of State for access to or the use of the CrowdTangle program.

Compl. ¶ 5. Judicial Watch requested that the scope of the State Department's search include "all unclassified and classified e-mail and record management systems utilized by" several individuals and entities, including former U.S. Ambassador to Ukraine Marie Yovanovitch, Deputy Assistant Secretary of State ("DAS") George Kent, the U.S. Embassy in Kyiv, the Bureau of European and Eurasian Affairs ("EUR"), the Bureau of Global Public Affairs ("GPA"),¹ and the Office of the Legal Advisor ("L"). Id.

Judicial Watch filed this lawsuit in January 2020, alleging that the State Department had failed to make a final determination on the FOIA request within the statutory deadline. Id. at ¶ 8. The State Department then processed 100 responsive records, releasing five documents in full and 95 in part. First Decl. of Eric F. Stein ("First Stein Decl.") ¶¶ 7–9, ECF No. 14-3.

In February 2021, the State Department moved for summary judgment. Judicial Watch filed a cross-motion for summary judgment the following month. In their motion papers, the parties confine their dispute to withholdings in eight documents. See Pl. Opp'n at 3. Pursuant to an order of the Court, the State Department submitted unredacted versions of two of those documents for in camera inspection in July 2021. Both sides’ summary judgment motions are now ripe for decision.

II. Legal Standard

In FOIA cases, an "agency is entitled to summary judgment if no material facts are genuinely in dispute and the agency demonstrates ‘that its search for responsive records was adequate, that any exemptions claimed actually apply, and that any reasonably segregable non-exempt parts of records have been disclosed after redaction of exempt information.’ " Prop. of the People, Inc. v. Office of Mgmt. & Budget, 330 F. Supp. 3d 373, 380 (D.D.C. 2018) (quoting Competitive Enter. Inst. v. EPA, 232 F. Supp. 3d 172, 181 (D.D.C. 2017) ).

In determining whether any withholdings were proper, the Court must construe FOIA's enumerated exemptions narrowly. Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002). The government may satisfy its burden through agency declarations that "describe[ ] the justifications for withholding the information with specific detail" and "demonstrate[ ] that the information withheld logically falls within the claimed exemption." ACLU v. DOD, 628 F.3d 612, 619 (D.C. Cir. 2011). "Such declarations are entitled to a presumption of good faith, and the court can award the agency summary judgment based solely on the information so provided." Judicial Watch, Inc. v. CIA, 310 F. Supp. 3d 34, 41 (D.D.C. 2018). But agency declarations will not support summary judgment if the plaintiff puts forth contrary evidence or demonstrates the agency's bad faith. ACLU, 628 F.3d at 619.

Similarly, an agency may demonstrate that it released all reasonably segregated parts of otherwise exempt records by submitting an affidavit indicating that an agency official conducted a review of each document and determined that the documents did not contain segregable information. Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002). While the agency may not rely on conclusory statements, Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F.2d 242, 260–61 (D.C. Cir. 1977), it is entitled to a presumption that it complied with its segregability obligation. Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007).

Finally, under the FOIA Improvement Act of 2016, an agency may withhold information only if "the agency reasonably foresees that disclosure would harm an interest protected by an exemption" to FOIA or "disclosure is prohibited by law." 5 U.S.C. § 552(a)(8)(A)(i). "The foreseeable harm requirement imposes an independent and meaningful burden on agencies." Reporters Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 369 (D.C. Cir. 2021) (cleaned up). To carry this burden, an agency withholding documents under the deliberative process privilege must provide "a focused and concrete demonstration of why disclosure of the particular type of material at issue will, in the specific context of the agency action at issue, actually impede those same agency deliberations going forward." Id. at 370.

III. Analysis

Judicial Watch challenges the State Department's decision to withhold parts of eight documents responsive to its FOIA request. Before analyzing each disputed withholding, the Court will address three global issues.

First and foremost, the Court disagrees with Judicial Watch's suggestion that records related to the State Department's use of CrowdTangle are ineligible for protection by the deliberative process privilege and cannot be withheld on that basis.

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). Exemption 5 incorporates all privileges that would apply during discovery in ordinary litigation, including the deliberative process privilege. Gellman v. DHS, No. 16-cv-635 (CRC), ––– F.Supp.3d ––––, ––––, 2020 WL 1323896, at *11 (D.D.C. Mar. 20, 2020).

To be protected by the deliberative process privilege, a document must be both predecisional and deliberative. Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980). A document is predecisional if it was "generated before the adoption of an agency policy," and it is deliberative if it "reflects the give-and-take of the consultative process." Id. The agency can establish deliberativeness by showing "that the withheld record ‘makes recommendations or expresses opinions on legal or policy matters.’ " Gellman, ––– F.Supp.3d at ––––, 2020 WL 1323896, at *11 (quoting Vaughn v. Rosen, 523 F.2d 1136, 1144 (D.C. Cir. 1975) ).

Judicial Watch challenges broadly that the government's assertions of the deliberative process privilege in this case on the ground that the documents at issue relate to "[a] nakedly political effort to monitor a group of U.S. citizens and journalists investigating a matter that could cause potential embarrassment to certain government officials," not "a legitimate agency policy. " Pl. Opp'n at 9. However, Judicial Watch cites no authority—and the Court is aware of none—for the proposition that predecisional and deliberative documents lose their privileged status if the conduct discussed in those documents is somehow illegitimate or unsavory. On the contrary, the confidentiality of internal agency deliberations may be most important when the agency is considering actions that would be susceptible to intense criticism. Knowing that their comments are privileged, agency personnel may be more willing to point out...