Court: Court of Appeals for the D.C. Circuit; March 29, 2018; Federal Appellate Court
Judicial Watch has engaged in litigation against the U.S. Department of State over the disclosure of emails from Hillary Clinton's time as Secretary of State, focusing on potential conflicts of interest related to her connections with The William J. Clinton Foundation. The current case involves renewed cross-motions for summary judgment, where Judicial Watch seeks specific documents related to these conflicts, particularly six records tied to the preparation for Senate confirmation hearings for Clinton and a prospective State Department Legal Adviser. The State Department has withheld these documents under the deliberative process privilege, which the Court upheld, ruling that all six documents are exempt from disclosure under FOIA Exemption 5.
Judicial Watch's FOIA request, dated March 2015, sought records detailing policies to prevent conflicts of interest from Clinton's personal and charitable financial relationships during her tenure, specifically for records created between January 1, 2009, and January 31, 2013. State responded to the request with sixteen documents, releasing six but withholding ten, including those generated by non-State employees for Senate confirmation preparations. Key documents include a draft letter from Clinton outlining her ethics commitments, and two email exchanges involving Clinton's Deputy Chief of Staff discussing ethical talking points for the confirmation hearings. The Court ultimately granted the State Department's motion for summary judgment and denied Judicial Watch's request for the documents.
Document C05892234 is an undated four-page revision of talking points addressing ethical considerations in documents C05892232 and C05892233. Document C05892235, dated January 12, 2009, contains nine questions posed by former Senator Russ Feingold to Clinton regarding her Secretary of State confirmation hearing, along with her proposed responses. Document C05892237 is an undated sixty-five page document featuring forty pre-hearing questions from Senator Richard Lugar for Legal Advisor-Designate Koh and Koh's responses.
In mid-2016, both parties sought summary judgment, raising issues about the adequacy of the State Department's search, the withholding of records under FOIA Exemption 5 related to confirmation preparation, the segregability of factual information, and the withholding of private email addresses under FOIA Exemption 6. The Court found the State Department's search generally adequate but ordered an additional search of records from Huma Abedin, a key official involved with both the Clinton Foundation and the State Department.
Regarding the withholding of documents under Exemption 5, the Court determined that the State Department did not sufficiently demonstrate how the withheld records related to agency policies and questioned whether deliberations about a nominee's public office pursuits fell under this exemption. Consequently, the Court denied both parties' summary judgment motions but allowed for renewed motions with more detailed briefing on the relevant policy interests.
The Court agreed with Judicial Watch that certain factual information in the disputed documents was subject to release. On the matter of email address redactions, the Court recognized significant privacy interests for full addresses but indicated that email domain extensions did not carry the same privacy concerns. The Court ordered the release of these domain extensions, which could not infer full email addresses. Since the prior opinion, the State Department conducted a further search of Abedin's records and produced satisfactory documents. However, a dispute remains regarding six specific documents related to the Clinton and Koh confirmation hearings, with the State Department asserting they are properly withheld under Exemption 5, a claim Judicial Watch disputes. Additionally, the State Department determined that no redacted email domain extensions can be released due to potential inference of full addresses, a challenge Judicial Watch has since dropped. The Court has reviewed the disputed documents in camera and will address the renewed cross-motions from both parties.
FOIA promotes broad disclosure of government documents to foster an informed citizenry essential for democracy, mandating the release of federal agency records unless they fall under one of nine exemptions. Cases under FOIA are often resolved through summary judgment, which is granted if there are no genuine disputes of material fact, the agency proves its search for records was adequate, and the claimed exemptions are applicable. The agency must justify its claims in detail, linking specific exemptions to parts of withheld documents. Courts may review disputed documents in camera to assess the validity of withholding. Exemptions must be narrowly construed, and vague claims are not permissible.
In the current summary judgment proceedings, two main issues arise: whether the State Department appropriately invoked FOIA Exemption 5 to withhold six records related to the confirmations of Secretary of State nominee Clinton and Legal Adviser-Designate Koh, and whether Exemption 6 protects the private email address domain extensions in responsive records. The Court finds that the State Department has met its FOIA obligations, leading to a summary judgment in its favor.
Regarding Exemption 5, the Court agrees that the State Department rightly withheld the six records based on the deliberative process privilege, which protects internal communications not available in litigation. For a document to qualify under this exemption, it must originate from a government agency and fit within a privilege recognized in judicial standards. The Court clarifies that records need not strictly be exchanged among agency employees to qualify as intra-agency or inter-agency communications, as a functional approach allows for certain interactions between agency personnel and non-agency individuals to be protected under Exemption 5.
Records exchanged between an agency and outside consultants can qualify as intra-agency under Exemption 5 if the agency solicited the records or if there is evidence of a consultant relationship, with the records intended to aid the agency's deliberative process. This means that if an agency solicits a record from a consultant, it can be considered an intra-agency memorandum for Exemption 5 purposes. The D.C. Circuit has upheld this interpretation, protecting various documents, including Senate questionnaire responses and letters from former Presidents regarding access to presidential papers. The Supreme Court's ruling in Department of Interior v. Klamath Water Users Protective Association clarified that an outside party must act with the intent to advise the agency, rather than representing its own interests, to qualify as a consultant.
Subsequent D.C. Circuit rulings have affirmed prior interpretations, indicating that a formal consulting relationship is not necessary, and the essence of the relationship matters more than adherence to formalities. Importantly, even if documents qualify as intra-agency, they must also fall under a privilege against discovery for Exemption 5 to apply. State’s reliance on the deliberative process privilege asserts that it protects advisory opinions and discussions that inform policy formulation, aiming to ensure candid internal communication. For a document to be protected, it must be both predecisional (created before policy adoption) and deliberative (reflecting collaborative discussion). The primary consideration is whether disclosure would hinder open dialogue within the agency.
An agency must demonstrate the deliberative process involved and the role of the withheld documents within that process to meet its burden under the deliberative process privilege. The State Department has withheld six documents related to the Senate confirmation hearings of Secretary of State nominee Hillary Clinton and Legal Adviser-Designate Harold Hongju Koh, arguing they qualify for protection due to their role in preparing these nominees for leadership and ensuring they understood relevant issues and ethical considerations. State asserts that these documents relate to developing arrangements to prevent potential ethics conflicts and align nominee responses with established Department policies. Judicial Watch contests this claim, arguing that discussions about confirmation hearings do not fall under FOIA exemptions, and that communications between Clinton and State do not demonstrate that State was involved in decision-making processes. The court highlights that D.C. Circuit precedent allows for the protection of records exchanged between an agency and non-agency entities under certain conditions. Specifically, under the consultant corollary of Exemption 5, records are protected if they were solicited by the agency and created to aid in its deliberative process. The court finds both conditions satisfied in this case, determining that a consulting relationship exists between the agency and the nominees due to their high-level positions, thus justifying the withholding of the documents.
All disputed records have been determined to be solicited, leading the Court to evaluate whether they were created to support the agency's deliberative processes. The Court acknowledges the difficulty in distinguishing records created for agency decision-making from those made for other reasons. The D.C. Circuit has noted that a consultant's interests may align with an agency's goals, allowing for records to be seen as beneficial to the agency despite potential self-interest.
The Court concludes that the records in question, generated during the preparation of two State Department nominees for Senate confirmation hearings, were indeed created to assist the agency's deliberative process. The Court emphasizes several key points:
1. The State Department has a vested interest in preparing nominees to mitigate potential conflicts of interest and ensure readiness for leadership upon confirmation.
2. The D.C. Circuit, in Association for Women in Science v. Califano, recognized the agency's compelling need for accurate conflict of interest information, highlighting that confidentiality is crucial for encouraging individuals to disclose such information when applying for government positions.
3. The importance of preventing public confidence erosion in government institutions is accentuated, particularly for high-level nominees who are carefully selected by the president and scrutinized for potential conflicts more than average applicants.
The Court underscores that an agency must proactively prevent the upheaval that could arise from discovering conflicts of interest post-confirmation, rather than relying on nominees to voluntarily disclose sensitive information or adequately prepare for Senate inquiries.
Concerns surrounding the deliberative process privilege are central to the Court's analysis, emphasizing that officials require candid communication, which could be stifled if all remarks are subject to discovery. Communications between an agency and a nominee are not solely for the nominee's benefit but are essential for aligning the nominee's responses with established agency policies. Nominees prepare to articulate their vision for the agency, which necessitates an understanding of feasible policies and ongoing programs. Premature disclosure of discussions could lead to public confusion regarding policy decisions. Judicial Watch acknowledges that some communications about nominees' plans might be deliberative, but their proposed guidelines are too rigid. The Court contends that it is logical for communications advising nominees on conflicts of interest to be protected while requiring disclosure of the nominee's information is inconsistent. All communications are part of a dynamic process supporting the nominee’s transition to a high-level position. The application of the consultant corollary to these communications does not contravene the principles established in Klamath, which did not fully endorse or clarify the extent of the corollary but noted that it excludes communications from those seeking government benefits at the expense of others.
A nominee for a high-level agency position is viewed as the president's selected decision-maker, pending Senate confirmation, rather than an interested party seeking benefits at others' expense. The Court evaluates specific deliberative processes related to disputed documents.
Document C05867882 is an undated draft letter from Hillary Clinton to Deputy Legal Adviser James Thessin regarding her ethics commitments if confirmed as Secretary of State. It contains proposed revisions from the State Department, making it predecisional and deliberative, as it was integral to evaluating how a nominee should manage potential conflicts of interest. The Court cites relevant case law indicating that the deliberative process privilege protects recommendations and subjective documents reflecting personal opinions rather than agency policy. Releasing such documents could hinder internal communications about managing nominees' conflicts of interest, thereby affecting public confidence. Consequently, the Court grants the State's motion for summary judgment on this document and denies Judicial Watch's motion.
Documents C05892232, C05892233, and C05892234 consist of email exchanges involving Jacob Sullivan and Richard Verma, discussing ethical considerations for Clinton's Senate confirmation hearing. The Court finds that these records were created to assist in agency policy deliberation and were also predecisional.
Courts in this jurisdiction consistently recognize that talking points intended for congressional testimony are classified as deliberative and predecisional documents, thereby falling under FOIA Exemption 5. Relevant case law illustrates this, such as *Competitive Enter. Inst. v. EPA*, which deemed records related to congressional communication strategies exempt due to the deliberative process privilege. Similarly, in *Judicial Watch v. U.S. Dep't of Homeland Sec.*, documents discussing responses to congressional inquiries were also deemed exempt. The deliberative nature of the documents is upheld even when prepared for nominees rather than current officials, as they are integral to the collaborative process between nominees and agencies regarding congressional questioning on agency policies.
Additionally, the declaration from Stein indicates that Sullivan shared documents C05892232 and C05892233 with the State Department to assist in preparing for a Senate confirmation, further emphasizing the deliberative process. The Court grants summary judgment for these documents, along with C05892235 and C05892237. Document C05892235 includes questions from former Senator Russ Feingold and responses from Clinton for her Secretary of State confirmation, while Document C05892237 contains pre-hearing questions from Senator Richard Lugar and proposed responses from Koh. Both documents are deemed deliberative as they involve agency deliberation on responses to congressional oversight inquiries. The Court concludes that all six disputed records are inter-agency or intra-agency documents that are deliberative and predecisional, without any reasonably segregable material present.
The Court ruled in favor of the State, concluding that the deliberative process privilege protects certain documents from disclosure, leading to a summary judgment for the State. Judicial Watch sought the release of non-state.gov email domain extensions from specific documents but later abandoned this request. The State argued that releasing the domain extensions would violate third-party privacy rights. The Court upheld that FOIA Exemption 6 protects such information, as it involves personnel-related data that could invade individual privacy. The law specifies that personal information is safeguarded if it can be tied to an individual. The Court emphasized the strong presumption for disclosure under FOIA but acknowledged that a substantial privacy interest exists in full email addresses. Previous rulings indicated that the public lacks significant interest in these email addresses. Nevertheless, the Court clarified that domain extensions alone do not pose significant privacy concerns and mandated the release of these specific extensions, as they do not enable the inference of full email addresses.
The State has renewed its motion for summary judgment, asserting personal privacy concerns regarding email domain extensions in responsive records that, if released, could reveal full email addresses. A declaration indicates that the email prefix for Jacob Sullivan has been publicly disclosed on the State Department website. Initially, Judicial Watch contested the State's claim, arguing it had not provided a specific document link for the published prefix but later retracted its challenge after the State supplied this information. The Court, having reviewed the disputed documents privately, confirmed that all email prefixes except Sullivan's had been released to Judicial Watch. The Court concluded that the domain extensions are not subject to release, as they could allow a determined observer to reconstruct the full email addresses. The Court granted the State's motion for summary judgment and denied Judicial Watch's cross-motion. Additionally, the State withheld certain private email domain extensions, citing potential invasion of personal privacy, a challenge Judicial Watch subsequently abandoned. The Court affirmed that FOIA Exemption 6 protects these withholdings. The Court noted that the information Judicial Watch seeks appears to pertain more to insights into the deliberative process rather than the actual content of the emails, as similar public records are available.
