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Judicial Watch, Inc. v. National Archives and Records Administration

United States Court of Appeals, District of Columbia Circuit

December 1, 2017

Judicial Watch, Inc., Appellant
v.
National Archives and Records Administration, Appellee

          Argued September 22, 2017

         Appeal 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.

          OPINION

          Rogers, Circuit Judge

         Judicial 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.

         I.

         In 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).

         There 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.

         On 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.

         The 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).

         II.

         The 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).

         The 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 her ...


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