IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Transcription

1 [NOT YET SCHEDULED FOR ORAL ARGUMENT] IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT FREEDOM WATCH, INC., Plaintiff-Appellant, v. Nos U.S. Department of State, et al., Defendants-Appellees. OPPOSITION TO PLAINTIFF S MOTION FOR DISCOVERY AND ORDER TO SHOW CAUSE WHY DEFENDANT U.S. DEPARTMENT OF STATE AND FORMER SECRETARY OF STATE CLINTON SHOULD NOT BE HELD IN CONTEMPT Plaintiff moves for discovery and an order to show cause why defendant U.S. Department of State and former Secretary of State Clinton should not be held in contempt in this action brought under the Freedom of Information Act ( FOIA based on accounts regarding use of personal for official business by the former Secretary. A panel of this Court denied a virtually identical motion filed by plaintiff in another, unrelated FOIA action. See Freedom Watch v. NSA, et al., No This Court likewise should deny the pending motion. As explained more fully below, the State Department plans to review the s provided by former Secretary Clinton for possible public release, and to make the documents available to the public by posting them on a Department website. The Department of State will then search those records to determine whether any are

2 responsive to plaintiff s FOIA action. Plaintiff s motion to remand therefore should be denied. If the Court believes it appropriate to hold this appeal in abeyance pending completion of the State Department s review process, the government does not object to that course of action. In any event, plaintiff s motion for discovery and an order to show cause are wholly without merit and should be denied. STATEMENT 1. This appeal arises out of a Freedom of Information Act ( FOIA request to the U.S. State and Treasury Departments for: Any and all documents that refer or relate in any way to the final decisions to grant waivers to all countries and other interests doing business with the Islamic Republic of Iran pursuant to the Comprehensive Iran Sanctions, Accountability, and Divestment Act, 22 U.S.C et. [sic] seq. or Executive Order The State Department searched eleven offices or records systems for responsive documents, including the Offices of the Secretary of State, but no responsive documents were found. Plaintiff brought suit against both State and Treasury. The district court dismissed Treasury from the case and State moved for summary judgment. The district court granted State s motion for summary judgment. The district court noted that the State Department had submitted two declarations to establish the adequacy of its search. The first declaration detailed the steps that each of the eleven components within the State Department took to locate responsive records. The second declaration described how the State Department sought and obtained advice from subject matter experts to ensure that it used the 2

3 appropriate search terms in its search of State s Central File. The district court concluded that these declarations established an adequate search. The district court rejected plaintiff s assorted allegations that State s search was inadequate. First, plaintiff argued that State s search must have been inadequate because plaintiff was able to find four responsive documents on State s website. The district court concluded, however, that the documents plaintiff uncovered were not responsive to his FOIA request because those documents concerned waivers under the National Defense Authorization Act of 2012 (NDAA, not under the Comprehensive Iran Sanctions, Accountability, and Divestment Act or Executive Order 13533, which were at issue in his FOIA request. The district court rejected as not [] serious plaintiff s argument that a waiver under the National Defense Authorization Act of 2012 is substantively the same as a waiver under the Comprehensive Iran Sanctions, Accountability, and Divestment Act, so that the State Department should have construed the FOIA request more broadly to include waivers pursuant to the National Defense Authorization Act of The district court dismissed plaintiff s contention that State did not talk to individuals knowledgeable about the subject matter of the FOIA request in conducting its search. The district court found that that argument is belied by State s declarations. Finally, the district court rejected plaintiff s request for discovery. Plaintiff appealed the district court s grant of summary judgment in favor of the State Department. 3

4 ARGUMENT Plaintiff s motion seeks several forms of relief. First, plaintiff seeks a remand to the district court for discovery as to whether the s former Secretary of State Hillary Clinton has recently produced to the State Department include any documents that are responsive to plaintiff s FOIA request. Second, plaintiff asks this Court to issue a subpoena to the former Secretary for the seizure and production of the computer file server that was used to store and process her messages at her home. Third, plaintiff moves this Court to enter an order to show cause why former Secretary of State Clinton and her former Chief of Staff, Cheryl Mills, should not be held in criminal contempt. Finally, plaintiff requests an emergency status conference. The Court should deny each of these requests. 1. First, remand is unnecessary. Given the considerable public interest in the s provided by former Secretary Clinton to the Department of State, the Department of State has stated that it plans to review the collection for public release, and to make the documents available to the public by posting them on a Department website. This will make the maximum number of records available in the shortest amount of time, and will be considerably more efficient than reviewing the documents piecemeal in response to subject-specific FOIA requests. Once the collection has been posted, the Department of State will search those records to determine whether any of the records are responsive to plaintiff s FOIA request. 4

5 Accordingly, if this Court deems it appropriate, defendants-appellees do not oppose holding this appeal in abeyance pending the State Department s processing of former Secretary Clinton s s. Once the State Department has processed the collection of s and determined whether any are responsive to plaintiff s FOIA request, the State Department will notify the Court and plaintiff, and the parties can file motions to govern future proceedings. If responsive records are found, the Court can remand to afford plaintiff an opportunity to challenge any redactions in those records. 2. Plaintiff s remaining requests for relief are devoid of merit and should be denied. Plaintiff asks this Court to issue a subpoena to former Secretary Clinton for the seizure and production for inspection and electronic copying the computer file server used to store and process her private electronic messages located at her home, to preserve and make available all documents relating to this matter. Mot. at 2. Such action is unnecessary and inappropriate under FOIA. The Department of State has indicated that it has received 55,000 pages of documents from former Secretary Clinton and that it will review the collection for public release. Once that process is completed, the State Department will search those documents to determine whether any are responsive to plaintiff s FOIA request here. Plaintiff provides no basis, beyond sheer speculation, to believe that former Secretary Clinton withheld any work-related s from those provided to the Department of State. Moreover, 5

6 FOIA creates no obligation for an agency to search for and produce records that it does not possess and control. See Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152, (1980; Nat l Sec. Archive v. Archivist of the U.S., 909 F.2d 541, 545 (D.C. Cir. 1990; Competitive Enterprise Institute v. Office of Science and Technology Policy, F. Supp. 2d, 2015 WL , at *4-5 (D.D.C. Mar. 3, It certainly provides no basis for a court to issue a subpoena for such documents. Plaintiff s additional request to hold former Secretary Clinton and her former Chief of Staff, Cheryl Mills, in contempt also is without merit. This Court has recognized that a contempt order in a FOIA action is appropriate only where it is directed against an agency, not an individual, and where the agency has already refused to produce documents that a court has concluded must be released under FOIA. Citizens for Responsibility and Ethics in Washington v. U.S. Dep t of Homeland Sec., 532 F.3d 860, 866 (D.C. Cir Neither former Secretary Clinton nor her Chief of Staff is a party to this case. Nor has this Court ordered any documents in this action to be produced. Finally, plaintiff s request for an emergency status conference should be denied. Plaintiff has identified no emergency that requires this Court to resolve his motion on any expedited timeline. 6

7 CONCLUSION For the forgoing reasons, this Court should deny plaintiff s motion. To the extent this Court deems it appropriate to hold this appeal in abeyance pending the Department of State s processing of former Secretary Clinton s s, defendantsappellees do not object. Respectfully submitted, March 19, 2015 /s/ Matthew M. Collette MATTHEW M. COLLETTE ( /s/ Catherine H. Dorsey CATHERINE H. DORSEY ( Attorneys, Appellate Staff, Civil Division, Room 7236, Department of Justice 950 Pennsylvania Avenue, N.W., Washington, D.C

8 CERTIFICATE OF SERVICE I certify that on March 19, 2015, I filed and served the foregoing Opposition to Plaintiff s Motion for Discovery and Order to Show Cause Why Defendant U.S. Department of State and Former Secretary of State Clinton Should Not Be Held In Contempt by causing an electronic copy to be served on this Court via the ECF system and four paper copies by hand delivery, and by causing one copy to be served on the following counsel via the ECF system: Larry Klayman, Esq NW 49 th Ave., Suite Ocala, FL ( s/ Catherine H. Dorsey CATHERINE H. DORSEY