The Clinton email scandal continues to rear its head in political news circles, but also in the much more exciting circles of FOIA and the deliberative-process privilege.
In a FOIA case seeking documents showing that Secretary Clinton sought approval to use private email for government business, a federal court upheld the State Dept.’s deliberative-process privilege. And without deciding whether Clinton’s email use was improper, the court held that the privilege’s government-misconduct exception did not apply. Judicial Watch, Inc. v. U.S. Dep’t of State, 2018 WL 387854 (D.D.C. Jan. 11, 2018). You may read the decision here.
Judicial Watch made a FOIA request to the State Dept. for (1) any “records of request” by Secretary Clinton seeking approval to use an iPad or iPhone for official government business, and (2) intra-agency documents related to “the use of unauthorized electronic devices.”
The State Dept. withheld certain documents under the deliberative-process privilege. This privilege generally permits a gov’t agency to withhold documents reflecting deliberations held prior to its decision, i.e., deliberative and pre-decisional. For more information on this privilege, see my post, Privilege Protects OLC Legal Memo Authorizing FBI’s Phone Records Collection.
Is there a Government-Misconduct Exception?
Judicial Watch did not challenge that the privilege protected the State Dept.’s withheld documents, but instead relied upon the putative government-misconduct exception to the privilege. This exception generally vitiates the privilege “when there is reason to believe the documents sought may shed light on government misconduct.” The exception’s basis is that shielding documents evidencing officials’ misconduct “does not serve the public’s interest in honest, effective government.”
The court, however, found it unclear whether the D.C. Circuit recognizes the government-misconduct exception in FOIA cases. And the law in other circuits is no clearer. Should the district court adopt the government-misconduct exception in Clinton’s case?
The court decided not to decide. It held that, even if a government-misconduct exception exists, it did not apply to the State Dept.’s withheld documents.
Courts apply the exception in “rare cases,” and require the requesting party to meet a “high bar” to invoke it The relevant consideration is “the egregiousness of the contents of the discussion” about the underlying conduct, and not the “egregiousness of the underlying conduct that the discussion concerns.”
Reviewing in camera the documents the State Dept. withheld, the court found that “agency leadership” (who could that be?) requested to use a Blackberry “in ways that were not customary within the agency.” And while State Dept. staff had to “resolve disagreements,” the court held that the documents did not reveal “nefarious motives” warranting a finding of government misconduct.
In sum, Judicial Watch focused on Secretary Clinton’s alleged misconduct in using personal emails rather than whether the intra-agency discussions falling within the deliberative-process privilege evidenced misconduct. The court found it “unnecessary” to address Clinton’s underlying conduct, and ruled that the privilege applied.