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.” More…