United States Court of Appeals, District of Columbia Circuit
September 22, 2017
from the United States District Court for the District of
Columbia (No. 1:15-cv-01740) Paul J. Orfanedes
argued the cause for appellant. With him on the briefs was
Lauren M. Burke.
Nicolas Y. Riley, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was
Douglas N. Letter, Attorney.
Before: Rogers and Tatel, Circuit Judges, and Silberman,
Senior Circuit Judge.
Rogers, Circuit Judge
Watch filed a Freedom of Information Act ("FOIA")
request seeking disclosure of "[a]ll versions of
indictments against Hillary Rodham Clinton" arising out
of the Independent Counsel's investigation begun in 1994.
Although a great deal of information has been released to the
public in connection with the Independent Counsel's
investigation, a draft indictment mentioned in a 1999 New
York Times article and a book published in 2010 has not.
Because a draft indictment implicates serious privacy
concerns, Judicial Watch was required to demonstrate
"exceptional interests" warranting disclosure.
Fund for Constitutional Gov't v. Nat'l Archives
& Recs. Serv., 656 F.2d 856, 866 (D.C. Cir. 1981).
Judicial Watch has not made that showing, nor shown a proper
segregability analysis was not conducted. Accordingly, we
affirm the grant of summary judgment to the National Archives
and Records Administration.
January 1994, the Attorney General appointed an Independent
Counsel "to investigate . . . whether any individuals or
entities have committed a violation of any federal criminal
or civil law relating in any way to President William
Jefferson Clinton's or Mrs. Hillary Rodham Clinton's
relationships with: (1) Madison Guaranty Savings & Loan
Association; (2) Whitewater Development Corporation; or (3)
Capital Management Services." 28 C.F.R. § 603.1(a).
An investigation was conducted from 1994 to 2002. The
Independent Counsel's final report was published in five
parts between 2000 and 2002. See, e.g., Final Report
of the Independent Counsel, In re Madison Guaranty Savs.
& Loan Ass'n (Jan. 5, 2001) ("Final
Report"). A partially redacted memorandum prepared by
staff summarizing the evidence before the Independent
Counsel's Office was released in 2014 as a result of a
FOIA request by Judicial Watch. In addition, committees of
both Houses of Congress conducted investigations, and the
testimony and committee reports are available to the public.
See Investigation of Whitewater Development
Corporation and Related Matters, S. Rep. No. 104-280 (1996);
Hearings on Collapse of the Madison Guaranty Savings and
Loan, H. Comm. on Banking & Fin. Servs., 104th Cong.
(Aug. 7, 1995).
also have been public references to a draft indictment of
Mrs. Clinton. Nearly two decades ago, the New York
Times published an article that referred to a draft
indictment prepared by Deputy Independent Counsel Hickman
Ewing. Steve Barnes, Court Told of Draft Indictment That
Included the First Lady, N.Y. Times, Mar. 19, 1999.
Seven years ago, a book about the Independent Counsel's
investigation also referred to a draft prepared by Deputy
Ewing. Ken Gormley, The Death of American Virtue: Clinton
v. Starr 478 (Broadway Books 2010). The draft indictment
has not been publicly released. It is publicly known,
however, that the Independent Counsel investigated whether
Mrs. Clinton committed perjury, made false statements, or
obstructed justice during the investigation and
"concluded that there was insufficient evidence to prove
beyond a reasonable doubt that Mrs. Clinton had committed any
federal criminal offense." Final Report at 411.
March 9, 2015, Judicial Watch submitted a FOIA request to the
National Archives as custodian for "[a]ll versions of
indictments against Hillary Rodham Clinton."
See 28 U.S.C. § 594(k). The FOIA officer denied
the request, invoking FOIA Exemption 7(C), which shields from
disclosure certain law-enforcement information that
"could reasonably be expected to constitute an
unwarranted invasion of personal privacy, " 5 U.S.C.
§ 552(b)(7)(C). Judicial Watch's appeal to the
Deputy Archivist was unsuccessful. On October 20, 2015,
Judicial Watch filed suit against the National Archives, and
the parties filed cross motions for summary judgment.
Attached to the National Archives' motion was the
declaration of its FOIA officer invoking Exemption 7(C)
because Mrs. Clinton's privacy interests outweighed the
public interest in disclosure, as well as Exemption 3,
regarding matters exempted from disclosure by statute, 5
U.S.C. § 552(b)(3), and Federal Rule of Criminal
Procedure 6(e) because disclosure would violate the secrecy
of grand jury proceedings. Decl. Martha Wagner Murphy, Chief,
Special Access and FOIA Staff, Feb. 1, 2015. In a
supplemental declaration the FOIA officer explained that a
draft indictment "is inextricably tied to the Grand Jury
process, " and that "individuals . . . never
indicted, charged and convicted of any criminal wrongdoing
retain a significant personal privacy interest with respect
to draft indictments that were contemplated by the
[Independent Counsel], discussed internally among IC staff,
but ultimately never issued." Supp. Decl. of Apr. 18,
2016, ¶¶ 7-8.
district court granted summary judgment to the National
Archives, ruling the requested records were properly withheld
pursuant to Exemptions 3, 6, and 7(C) and that the National
Archives had made a proper segregability analysis and the
documents could be withheld in their entirety. Judicial
Watch, Inc. v. Nat'l Archives & Recs. Admin.,
214 F.Supp.3d 43 (D.D.C. 2016). Judicial Watch appeals, and
our review is de novo. See Elec. Privacy Info.
Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d 518,
522 (D.C. Cir. 2015).
FOIA "requires federal agencies to make Government
records available to the public, subject to nine exemptions
for specific categories of material." Milner v.
Dep't of Navy, 562 U.S. 562, 564 (2011). The
exemptions "must be narrowly construed, "
id. at 565 (internal quotation marks and citation
omitted), and the burden is on the government to provide
"reasonably specific" justifications indicating
that documents "logically" or
"plausibl[y]" fall within the claimed exemption,
Larson v. Dep't of State, 565 F.3d 857, 862
(D.C. Cir. 2009) (internal quotation marks and citations
omitted). Exemption 7(C) covers "records or information
compiled for law enforcement purposes" that "could
reasonably be expected to constitute an unwarranted invasion
of personal privacy." 5 U.S.C. § 552(b)(7). In
applying this exemption, the court must "balance the 
privacy interest against the public interest in
disclosure." Nat'l Archives & Recs. Admin.
v. Favish, 541 U.S. 157, 171 (2004).
court has recognized that although public officials "may
have a somewhat diminished privacy interest, " they
"do not surrender all rights to personal privacy when
they accept a public appointment." Citizens for
Responsibility & Ethics in Wash. v. U.S. Dep't of
Justice ("CREW"), 746 F.3d 1082, 1092
(D.C. Cir. 2014) (internal citation and quotation omitted).
Although the existence of the Independent Counsel's
investigation of her is public knowledge, Mrs. Clinton, then,
"retain[s] a . . . distinct privacy interest in the
contents of the investigative files."
Id. Indeed, Judicial Watch acknowledges that Mrs.
Clinton has a privacy interest but maintains, in view of her
official positions as First Lady, United States Senator, and
the Secretary of State, that the release of the Independent
Counsel's Final Report and evidentiary summary renders