Case 1:15-cv-02117-RDM Document 21 Filed 08/08/16 Page 1 of 5

THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA
__________________________________________
)
JASON LEOPOLD,
)
)
Plaintiff,
)
)
v.
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)
U.S. DEPARTMENT OF JUSTICE
)
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Defendant.
)
__________________________________________)

Case No. 15-cv-02117 RDM

DEFENDANTS STATUS REPORT

Pursuant to this Courts Minute Order of July 25, 2016, Defendant respectfully
submits the following status report.1
As explained in Defendants July 13, 2016 Status Report, ECF No. 18, the
Federal Bureau of Investigation (FBI) has withheld two categories of documents that
are responsive to Plaintiffs FOIA request. The first category consists of materials
retrieved from any server equipment and related devices obtained from former Secretary
of State Hillary Clinton for the investigation at issue in Plaintiffs FOIA request (Request
No. 1340452) (retrieved materials). See Def.s Mem. of Points and Authorities in
Supp. of Mot. for Summ. J. (Def.s Mem.), ECF No. 7, at 12. On Friday, August 5,
2016, the FBI completed its transmission to the State Department of documents
recovered by the FBI for the investigation, including the retrieved materials responsive to
Plaintiffs request. See Def.s Status Report, Judicial Watch, Inc. v. U.S. Dept of State,
Civil Action No. 13-cv-1363 (EGS), ECF No. 116 (July 29, 2016) (stating that the FBI
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Plaintiff informed Defendant that he intended to file a separate status report. For this
reason, Defendant is filing a separate status report.
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planned to make a second and final transmission to the State Department of documents
recovered by the FBI in the course of its investigation by August 5, 2016); July 12, 2016
letter from James A. Baker to Brian J. Egan, ECF No. 18-1 (stating that, in accordance
with its policies and procedures, the FBI would be providing the retrieved materials to the
State Department for review and determination as to whether they constitute agency
records of the State Department under the Federal Records Act, and for subsequent FOIA
processing as appropriate).
The second category consists of two records of correspondence between the FBI
and the State Department regarding the investigation at issue in Plaintiffs FOIA request
(Request No. 1340457). See Def.s Mem. at 12. The FBI released the non-exempt
portions of the two pieces of correspondence to Plaintiff on August 5, 2016. The only
information that was withheld from the two pieces of correspondence was the name and
contact information of a FBI Special Agent. See 5 U.S.C. 552(b)(6), 7(C).
On August 5, 2016, the FBI filed a public version of the Third Overall and First In
Camera, Ex Parte Declaration of David M. Hardy (Third Hardy Declaration) submitted
in support of Defendants reply brief. See Notice of Filing of Third Declaration of David
M. Hardy, ECF No. 20. No information was redacted from the public version of the
Third Hardy Declaration.
Given the above, Defendants proposal for appropriate further proceedings in this
case is as follows. Defendants motion for summary judgment regarding the adequacy of
its search for responsive records subject to FOIA, ECF No. 7, is fully briefed and ready
for disposition by the Court. If Plaintiff does not intend to challenge the limited

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withholdings in the two pieces of correspondence the FBI released to Plaintiff on

August 5, 2016, no further proceedings are necessary regarding those two records.
Regarding the first category of responsive documents, the FBI has provided the
retrieved materials to the State Department for review and determination as to whether
they constitute agency records of the State Department under the Federal Records Act,
and for subsequent FOIA processing as appropriate. July 12, 2016 letter from James A.
Baker to Brian J. Egan, ECF No. 18-1; see also 28 C.F.R. 16.4(d)(2) (providing that,
when a component of the Department of Justice processing a FOIA request believes that
a different agency subject to FOIA is best able to determine whether to disclose a
record, the component typically should refer the responsibility for responding to the
request regarding that record). Therefore, the State Department is the appropriate
agency to process any such records responsive to Plaintiffs FOIA request.
In a typical referral case, the non-party agency receives the referral and responds
directly to the requester. The agency that is a named party then moves for summary
judgment (often with a supporting declaration provided by the referral agency). See, e.g.,
Waterkeeper Alliance v. U.S. Coast Guard, Civil Action No. 13-289 (RMC), 2014 WL
5351410, at *9-11 (Sept. 29, 2014) (the Coast Guard complied with its regulations by
referring documents to another agency that had the expertise to determine whether the
information sought should be disclosed, and the other agency would make a
determination and provide its reasoning for any withholdings). But the situation here is
unique because the State Department is making an initial determination as to whether the
retrieved materials are agency records subject to FOIA, and there is at least one case
pending against the State Department involving a broad FOIA request that encompasses

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many of the same documents Plaintiff seeks here. See Judicial Watch v. Dept of State,
Civil Action No. 15-cv-687 (JEB) (case regarding FOIA request seeking, inter alia, all
emails sent or received by former Secretary Clinton in her official capacity during her
tenure as Secretary of State). A status conference is set for August 22, 2016 in the
Judicial Watch case, at which the topic of the processing of documents recovered by the
FBI in the course of its investigation is expected to be discussed. Defendant respectfully
submits that it would be in the best interests of judicial economy for a processing
schedule to be entered in that case, given that any federal records in the retrieved
materials are likely to be State Department records, and given that the State Department
is a party to the Judicial Watch case. Therefore, Defendant proposes to file a status
report in the instant case by August 29, 2016 to report on developments in the Judicial
Watch case.
Dated: August 8, 2016

Respectfully submitted,

BENJAMIN C. MIZER
Principal Deputy Assistant Attorney General
MARCIA BERMAN
Assistant Branch Director
/s/ Jennie L. Kneedler
JENNIE L. KNEEDLER
Trial Attorney
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Ave., N.W.
Washington, D.C. 20001
Tel. (202) 305-8662
Fax (202) 616-8470
Email: Jennie.L.Kneedler@usdoj.gov
D.C. Bar # 500261
Attorneys for Defendant
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