Brown v. Department of State, No. 15-01459, 2018 WL 3404147 (D.D.C. July 12, 2018) (Kollar-Kotelly, J.).

Brown v. Department of State, No. 15-01459, 2018 WL 3404147 (D.D.C. July 12, 2018) (Kollar-Kotelly, J.).

Re:  Request for records about the decision to allow Hillary Clinton's private attorney "to maintain potentially classified State Department records at his law firm."

Disposition:  Granting summary judgment for defendant; denying summary judgment for plaintiff

• Waiver:  In response to plaintiff's argument that withheld emails are in the public domain because they were "'sent to . . . a private law firm unaffiliated with the government[,]'" the court holds that, "Plaintiff has not shown that the information sought in these emails has become 'truly public' or that it is preserved is any 'permanent public record' in the public domain."  Additionally, the court explains that "nothing in the record [suggests] that this [disclosure to the private attorney for the former Secretary of State at a single outside law firm] resulted in the information becoming known to anyone else, let alone the general public."
   

• Exemption 5, Deliberative Process Privilege:  The court holds that withholding a draft letter between two officials regarding the FBI inquiry into former Secretary Clinton's email server and thumb drives was proper.  The court explains that the "draft letter appears to have been developed as part of a pre-decisional and deliberative process leading up to the drafting and transmission of a final letter, and as such is precisely the type of document that would come within this privilege."  Furthermore, "the fact that this document constitutes a communication between members of two agencies does not preclude the application of the [privilege, particularly where] the two agencies were apparently communicating for the purpose of sharing their relative expertise in an attempt to reach a quality decision." 
   

• Exemption 5, Attorney Work-Product:  Regarding application of the attorney work-product privilege to "'an inter-agency email exchange from the [National Archives and Records Administration] General Counsel to the Department of Justice, which was then forwarded to [Department of State attorneys] . . .'" that "discuss[ed] what information to include in an upcoming court filing[,]" the court holds that the records "are clearly privileged."  The court explains that "[b]oth documents contained communications of legal advice sent from government attorneys to their clients" and that "[l]egal advice does not lose its protected status simply because it incorporates statements from outside sources."