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Case 1:15-cv-02117-RDM Document 22 Filed 08/08/16 Page 1 of 8

UNITED STATES DISTRICT COURT


FOR THE DISTRICT OF COLUMBIA
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) Civil Action No. 1:15-cv-2117 (RDM)
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JASON LEOPOLD,
PLAINTIFF
vs.
DEPARTMENT OF JUSTICE,
DEFENDANT

PLAINTIFFS STATUS REPORT


Plaintiff Jason Leopold by undersigned counsel, respectfully submits this status
report pursuant to the Courts July 25, 2016 Minute Order in which the Court ordered the
parties to submit a joint status report proposing appropriate further proceedings in this
case on or before August 8, 2016. Courts Minute Order of July 25, 2016. The parties
were unable to reach agreement on the appropriate further proceedings in this case. As
such, Plaintiff is submitting a separate status report in response to the Courts Minute
Order of July 25, 2016.
BACKGROUND
On July 13, 2016, Defendant informed the Court, in relevant part, that, As
announced by the Department of Justice and the Federal Bureau of Investigation (FBI)
last week, the FBI is concluding the investigation at issue in Plaintiffs FOIA request. See
July 12, 2016 letter from James A. Baker to Brian J. Egan (attached as Exhibit 1).
Therefore, Defendant no longer seeks summary judgment on the basis that the FBI
properly withheld responsive information pursuant to FOIA Exemption 7(A) or on the

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basis that the FBI released all reasonably segregable, non-exempt records. Def.s Status
Report of July 13, 2016 (ECF No. 18 at 1).
On July 14, 2016, the Court entered a Minute Order providing that the parties
shall meet and confer and file a joint status report on or before July 22, 2016, setting
forth a proposal for further proceedings in this case.
On July 22, 2016, the parties asked for additional time, until August 8, 2016, to
determine how to proceed in this case, and setting forth three outstanding items. The first
outstanding item for which a determination for how to proceed is the thousands of
Clinton emails responsive to Request No. 1340452. The second outstanding item is the
two records of correspondence between the FBI and the State Department regarding the
investigation responsive to Request No. 1340457. The final outstanding item is whether
any portion of the Third Overall and First In Camera, Ex Parte Declaration of David M.
Hardy could be filed on the public record.
a. Thousands of Clinton Emails Responsive to Request No. 1340452
In the parties joint status report of July 22, 2016, the parties reported that 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 (Request No. 1340452). See Def.s Mem. of
Points and Authorities in Supp. of Mot. for Summ. J. (Def.s Mem.), ECF No. 7, at
12. ECF No. 19 at 1.
The status report further stated that, Yesterday [July 21, 2016], the FBI began
transferring the retrieved materials to the State Department, and will continue to transfer

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the retrieved materials to the State Department on a rolling basis. See 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 will 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). Id.
Further the parties informed the Court, The retrieved materials consist of
thousands of documents. At this time, Defendant is unable to provide the Court with a
date by which the FBI will transfer all of the retrieved materials to the State Department,
or information regarding the precise volume of retrieved materials that will be
transferred. Defendant expects to be able to provide the Court with more information
regarding the time line for the completion of the transfer of the retrieved materials, and
the approximate volume of materials, in the coming weeks. Id.
b. Two Correspondence Responsive to Request No. 1340457
Regarding the second category of records, the July 22, 2016 status informed, The
second category consists of two records of correspondence between the FBI and the State
Department regarding the investigation (Request No. 1340457). See Def.s Mem. at 12.
The FBI is currently processing these two records to determine whether any other
exemptions apply to information contained in them and expects to release the records, or
any non-exempt portions of them, on or before August 5, 2016. Id. at 2.
c. Third Overall and First In Camera, Ex Parte Declaration of David M. Hardy
The recent status report also indicated that, The FBI is currently evaluating
whether the portions of the Third Overall and First In Camera, Ex Parte Declaration of
David M. Hardy (Third Hardy Declaration) submitted in support of Defendants reply
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brief, see June 13, 2016 Minute Entry granting Defendants Motion for Leave to Submit
In Camera, Ex Parte Declaration (ECF No. 17), can be filed on the public record, or
whether portions of the Third Hardy Declaration need to be redacted. Defendant expects
to file a public version of the Third Hardy Declaration (with redactions, if appropriate) on
or before August 5, 2016. Id. at 2.
PLAINTIFFS POSITION
Plaintiff respectfully requests that the Court set a status hearing to resolve the
outstanding issues and establish a production schedule as set forth below.
a. Thousands of Clinton Emails Responsive to Request No. 1340452
With respect to the first outstanding item, the Clinton emails responsive to
Request No. 1340452, Defendant informed Plaintiff on August 8, 2016 that it is the
FBIs position is that the processing and production of the retrieved materials should be
completed in a case where the State Department is a party. Defendant further stated it
cannot confirm the number of retrieved materials.
Plaintiffs position is that Defendant is legally obligated under the FOIA to
respond to Plaintiffs request directly notwithstanding any desire to defer to another
agency. See McGehee v. CIA, 697 F.2d 1095, 1105-12 (D.C. Cir. 1983), vacated in part
and affd in part 711 F.2d 1076 (D.C. Cir. 1983) (when an agency receives a FOIA
request for agency records in its possession it must take responsibility for processing
the request. It cannot simply refuse to act on the ground that the documents originated
elsewhere.1

Defendants contention that these same records will be available to the public through another suit against
the Department of State is misplaced. See Defendants Status Report of August 8, 2016 (ECF No. 21).
First, Defendants suggests that these records are responsive to Judicial Watch v. Dept of State, Civil
Action No. 15-cv-687 (JEB) because Plaintiff in that case is seeking all emails sent or received by former

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Additionally, the intent and purpose of FOIA will only be served if Defendant
releases information about the number of responsive records, and the responsive records
themselves, in a reasonable timeframe that accounts for the important role the FOIA
serves in educating the voting public. See, e.g., NLRB v. Robbins Tire & Rubber Co., 437
U.S. 214, 242 (1978) ([t]he basic purpose of FOIA is to ensure an informed citizenry,
vital to the functioning of a democratic society, needed to check against corruption and to
hold the governor accountable to the governed.)
In consideration of this bedrock principal of democracy, and accommodate for
processing time, Plaintiffs position is that Defendant should inform Plaintiff of the
volume of records response to Plaintiffs request no later than August 15, 2016.
Additionally, given Defendant position, it is likely that a Court order will be necessary to
achieve the disclosure of the records responsive to Request No. 1340452 (the Clinton
emails) at all, let alone in a timely manner that will serve to inform the voting public
before the deadline for casting their votes on November 4. Plaintiff proposes that the
production of these records be completed on or before October 31, 2016, divided into two
monthly productions. A schedule requiring a production constituting no fewer than 33

Secretary Clinton in her official capacity during her tenure as Secretary of State. See ECF No. 21. The
request in that case is unlikely to capture emails and other records created, sent, or received by other
persons who may have had an account on or access to Hillarys Clintons private email server. At least one
such person, Huma Abedin, is known to have had such an account. It is unreasonable to assume that every
email and attachment Ms. Abedin sent from her Clinton server email account also involved Ms. Clinton.
Any record that was not sent to or from Ms. Clinton would therefore not be captured by the request
Defendant cites as a more appropriate vehicle for making these records available to the public.
Defendants argument is also flawed in that Mr. Leopold is not a party to that case and therefore
has no control over or input into decisions about what records should be produced and when. Similarly,
each agency has its own FOIA processing wait time. The State Department has repeatedly argued to this
Court that its FOIA office resources are strained. While Mr. Leopold does have a suit pending against the
State Department seeking these same records, the State Department has articulated its position in that case
that none of the records received from the FBI are responsive to Plaintiffs FOIA request. Should the State
Department prevail in that argument or otherwise obtain delays beyond election day in Plaintiffs and in
other similar cases, it would leave Plaintiff and the public without information guaranteed to them under
the FOIA.

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percent of the responsive pages be made no later than September 30, 2016 and, a second
production completing the production of responsive records be made no later than
October 31, 2016, would adequately balance the interests of public disclosure and
government needs.
This production schedule balances the tremendous public interest in Hillary
Clintons official emails, with the need to provide information to the public before the
election, while providing Defendant ample time to process what appears to be only a few
thousand records.2
b. Two Correspondence Responsive to Request No. 1340457
With respect to the second outstanding item, two correspondence responsive to
Request No. 1340457, Defendant represented in the July 22 status report that, The FBI
is currently processing these two records to determine whether any other exemptions
apply to information contained in them and expects to release the records, or any nonexempt portions of them, on or before August 5, 2016. ECF No. 19 at 2.
Defendant did not release either of these records to Plaintiff, or otherwise update
Plaintiff with respect to the status of the review subject to the August 5, 2016 deadline.
Plaintiffs position is that Defendant should be ordered to release any portions of these
records which are subject to the FOIA no later than August 15, 2016.
c. Third Overall and First In Camera, Ex Parte Declaration of David M. Hardy

While the government has not confirmed the number of records or pages at issue, Politico.com reported
on July 22, 2016 that the number of responsive records is likely several thousand, though the number of
records related to Ms. Abedin are unknown, In addition to the approximately 2,000 to 3,000 Clinton
emails that the FBI found that were not among the roughly 30,000 she turned over to the State Department
in late 2014, government lawyers have said the FBI has also recovered emails from Clinton aide Huma
Abedin that were stored on the Clintonemail.com system.
See http://www.politico.com/story/2016/07/hillary-clinton-emails-fbi-state-226044#ixzz4GmObSRFX (last
visited Aug. 8, 2016).

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With respect to the final outstanding item, the Third Hardy Declaration,
Defendant filed a redacted version on the public record on August 5, 2016. ECF Nos. 20,
20-1. Plaintiff is in the process of reviewing that filing and determining whether to
challenge any withholdings.
d. Conclusion
For the reasons set forth above, Plaintiff respectfully requests that the Court set a
status hearing to determine how to proceed in this case, and specifically for the purpose
of establishing a production scheduling order with respect to Plaintiffs outstanding FOIA
requests. Plaintiff further respectfully requests that the Court adopt the production
schedule articulated herein.

Dated this 8th day of August, 2016.


Respectfully Submitted,
/s/ Ryan S. James_______________
Ryan S. James
D.C. Bar #496272
5208 Capricorn Loop
Killeen, TX 76542
(254) 289-7459
RSJameslaw@gmail.com
/s/ Jeffrey Light_______________
Jeffrey L. Light
D.C. Bar #485360
1712 Eye St., NW
Suite 915
Washington, DC 20006
(202)277-6213
Jeffrey@lawofficeofjeffreylight.com
Counsel for Plaintiff

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