Case 1:16-cv-00486-JEB Document 15 Filed 07/07/16 Page 1 of 2 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) REPUBLICAN NATIONAL COMMITTEE ) ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-00486-JEB ) UNITED STATES DEPARTMENT ) OF STATE ) ) Defendant. ) ___________________________________ ) MOTION FOR PARTIAL SUMMARY JUDGMENT Pursuant to Federal Rule of Civil Procedure 56 and Local Rule 7, Plaintiff Republican National Committee (“Plaintiff”) hereby moves for summary judgment in this case ordering production in full and without redaction certain records that include daily electronic calendars reflecting the “Schedule For President William J. Clinton.” As more fully set forth in the accompanying Memorandum in Support of the Republican National Committee’s Motion for Partial Summary Judgment, summary judgment ordering Defendant produce documents it claimed as exempt under 5 U.S.C. § 552(b)(6) is appropriate. Plaintiff is entitled to summary judgment because: first, the movant shows that there is no genuine dispute as to any material fact as pertains to the calendars claimed as exempt under 5 U.S.C. § 552(b)(6) and second, the movant is entitled to judgment as a matter of law. Defendant declined to produce the requested documents under the Freedom of Information Act and therefore bears the burden before the Court of proving the applicability of the claimed statutory Case 1:16-cv-00486-JEB Document 15 Filed 07/07/16 Page 2 of 2 exemption. Defendant cannot make a showing sufficient to establish the applicability of the exemption. Thus, Plaintiff is entitled to summary judgment as a matter of law. In accordance with Local Rule 7(f), Plaintiff respectfully requests an oral hearing. Dated: July 7, 2016 Respectfully submitted, __/s/ Jason Torchinsky_______ JASON TORCHINSKY (DC Bar No. 976033) Holtzman Vogel Josefiak Torchinsky PLLC 45 North Hill Drive, Suite 100 Warrenton, VA 20186 Phone: (540) 341-8808 Fax: (540) 341-8809 Email: [email protected] Attorney for Plaintiff Case 1:16-cv-00486-JEB Document 15-1 Filed 07/07/16 Page 1 of 8 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) REPUBLICAN NATIONAL COMMITTEE ) ) ) Plaintiff, ) ) v. ) Civil Action No. 1:16-cv-00486-JEB ) UNITED STATES DEPARTMENT ) OF STATE ) ) Defendant. ) ___________________________________ ) MEMORANDUM IN SUPPORT OF THE REPUBLICAN NATIONAL COMMITTEE’S MOTION FOR PARTIAL SUMMARY JUDGMENT INTRODUCTION On June 16, 2016, the Department of State (“State Department” or “Defendant”) produced to Plaintiff 162 pages of records that included daily electronic calendars reflecting the “Schedule For President William J. Clinton.” This should have been a meaningful production, but instead, Defendant completely redacted entire portions of the schedules (save for the accompanying local weather reports), asserting that the concealed information is subject to the “personal privacy” exemption under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552(b)(6). (See Exhibit A at 109-116, 155-162). But that exemption does not apply here, because former President Clinton’s calendar was disseminated to at least 50 other persons, including individuals within the State Department – among them at least four senior officials – apparently to facilitate day-to-day operations of the agency while Hillary Clinton was Secretary of State. For the reasons briefed below, Plaintiff respectfully moves this Court for partial 1 Case 1:16-cv-00486-JEB Document 15-1 Filed 07/07/16 Page 2 of 8 summary judgment that these electronic calendar items of former President William J. Clinton are agency records that must be promptly produced to Plaintiff without redaction. STANDARD OF REVIEW “FOIA cases are typically and appropriately decided on motions for summary judgment.” Inst. for Policy Studies v. C.I.A., 885 F. Supp. 2d 120, 132 (D.D.C. 2012) (internal citations omitted). Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Summary judgment thus will be granted “against a party who . fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Inst. for Policy Studies, 88 F. Supp. 2d at 132 (internal quotations and citations omitted). It is well understood that FOIA “was conceived in an effort to permit access by the citizenry to most forms of government records.” Vaughan v. Rosen, 484 F.2d 820, 823 (D.C. Cir. 1973). Accordingly, it “provides that all documents are available to the public unless specifically exempted by the Act itself.” Id.; accord Charles v. Office of Armed Forces Med. Exam’r, 730 F. Supp. 2d 205, 211 (D.D.C. 2010) (“FOIA affords the public access to virtually any federal government record that FOIA itself does not specifically exempt from disclosure.”). Therefore, “[w]hen an agency declines to produce a requested document, the agency bears the burden before the trial court of proving the applicability of claimed statutory exemptions.” Summers v. Dep’t of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998) (citing 5 U.S.C. § 552(a)(4)(B)); accord Beck v. Dep't of Justice, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (“Consistent with the purpose of the Act, the burden is on the agency to justify withholding requested documents.”) (internal citations omitted). Furthermore, the agency must detail what proportion of the information 2 Case 1:16-cv-00486-JEB Document 15-1 Filed 07/07/16 Page 3 of 8 within a document is non-exempt “and how that material is dispersed throughout the document,” and “[a]ny non-exempt information that is reasonably segregable from the requested records must be disclosed.” Barnard v. Dep’t Homeland Security, 531 F. Supp. 2d 131, 136 (D.D.C. 2008) (internal citations omitted). ARGUMENT The records at issue here, “Schedule[s] For President William J. Clinton,” plainly are not exempt from production by FOIA § 552(b)(6). (See Exhibit A at 109-116, 155-162). Section 552(b)(6) exempts only “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” Critical to the Court’s inquiry into whether the exemption applies is a determination of whether the redacted communications qualify as “agency records” subject to disclosure under FOIA. Clearly they do. Former President Clinton is a federal official; his staff is federally funded; he was receiving State Department briefs; and his calendar was distributed quite widely within, and without, the agency – as evidenced by the more than 50 different recipients listed on the email chain, at least four of whom were senior State Department officials at the time.1 (See Exhibit A at 109, 113, 115, 155). The seminal case concerning whether certain calendars or schedules qualify as “agency records” subject to FOIA is Bureau of National Affairs v. U.S. Department of Justice. Bureau of Nat’l Affairs v. U.S. Dep’t of Justice, 742 F.2d 1484 (D.C. Cir. 1984). In that case, the D.C. Circuit set forth four factors that must be weighed as part of a “totality of the circumstances” test to determine whether a document is an “agency record”: whether the documents were (1) within the agency’s control, (2) generated by the agency, (3) placed into the agency’s files, and (4) used 1 Those State Department personnel include: Andrew Shapiro, Assistant Secretary of the Bureau of Political-Military Affairs; Cheryl Mills, Chief of Staff and Counselor to the Secretary of State; Lona Valmoro, Scheduling, Office of the Secretary; and Philippe Reines, Deputy Assistant Secretary, Bureau of Public Affairs. (Exhibit A at 109, 113, 115, 155). 3 Case 1:16-cv-00486-JEB Document 15-1 Filed 07/07/16 Page 4 of 8 by the agency “for any purpose.” Id. at 1489-94; accord Consumer Fed’n of Am v. Dep’t of Agric., 455 F.3d 283, 288-89 (D.C. Cir. 2006). Considerations of “control” and “use” must be assessed holistically. Cases, in other words, “cannot be compartmentalized rigidly into either a ‘control’ or a ‘use’ analysis. [T]he inquiry necessarily must focus on a variety of factors surrounding the creation, possession, control, and use of the document by an agency.” Bureau of Nat’l Affairs at 1490 (citing Crooker v. U.S. Parole Comm’n, 730 F.2d 1, 5 (1st Cir. 1984)). The Bureau of National Affairs court distinguished and placed particular weight on whether the calendars and agendas at issue were used for official business or meant solely for personal use, concluding that if individuals within the agency relied on a document to perform their duties, then that document is an “agency record” subject to FOIA. See 742 F.2d at 1493. On the one hand, the court found that certain desk calendars maintained solely for the personal convenience of an individual official, and to which only his top assistants had occasional access, were personal in nature and thus not agency records. Id. at 1496-97. On the other hand, it deemed certain daily agendas to be agency records because they were distributed to top staff so that they would know the assistant attorney general’s whereabouts on any given day and maintained to help facilitate day-to-day operations of the division. Id. at 1495-96. The court in Consumer Federation of America, moreover, found that the uses to which five senior USDA officials’ calendars were put were indistinguishable from the daily agendas in Bureau of National Affairs and thus subject to FOIA.