Judicial Watch, Inc. v. NARA, No. 15-1740, 2016 WL 5794633 (D.D.C. Oct. 4, 2016) (Walton, J.)

Judicial Watch, Inc. v. NARA, No. 15-1740, 2016 WL 5794633 (D.D.C. Oct. 4, 2016) (Walton, J.)

Re: Request for "[a]ll versions of indictments against Hillary Rodham Clinton"

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemption 3: The court holds that defendant correctly invoked Exemption 3. The court first finds that, "[b]ecause Rule 6(e) applies to the independent counsel . . . and the restrictive statutory provisions that apply to the independent counsel also apply to the Archivist under the express language of 44 U.S.C. § 2108, the Court finds that Rule 6(e) also applies to the Archives." "Prior to the transfer of the draft indictments to the Archives, Rule 6(e) shielded the documents from potential disclosure because the rule extended to the independent counsel as an attorney for the government." The court finds that "the fact that the draft indictments were transferred to the Archives does not alter the Archives' aptitude to protect the draft indictments from potential disclosure under Rule 6(e)." Second, the court finds that "the drafts contain precisely the information that Rule 6(e) is intended to protect – information that 'would tend to reveal some secret aspect of the grand jury's investigation.'" "[T]he Court finds that the drafts of the proposed indictment would disclose the identity of individuals who actually testified before the grand jury and who the independent counsel considered calling as witnesses, as well as the inner workings of the federal grand jury process that would necessarily show the potential direction of the grand jury proceedings, given that the independent counsel likely drafted the documents based on testimony and other information presented to that body." Additionally, the court finds that "the plaintiff's argument simply seeks to heighten the Archives' burden to a degree of particularized specificity as to the meaning of each word used by the declarant to describe the type of information contained within the withheld documents." "However, as the Court noted above, the Archives only bears the burden of showing some 'nexus between disclosure and revelation of a protected aspect of the grand jury's investigation.'" "[B]ecause [defendant's] declarations sufficiently establish a 'nexus' between disclosing the draft indictments and revealing the inner workings of the grand jury process, the Court finds that the Archives has satisfied its burden of showing that the draft indictments are protected from disclosure under Rule 6(e)."
   
• Waiver: The court holds that "the plaintiff's attempt to demonstrate that the information contained in the draft indictments is already in the public domain and widely available because of the independent counsel's final reports and a 206-page memorandum . . . which are available to the public and contain grand jury information . . . does not rise to the level of specificity required by the District of Columbia Circuit." The court finds that "the plaintiff has not pointed to specific items of information in the public domain that sufficiently demonstrate that the information contained in the drafts of the proposed indictment are publicly available to warrant disclosure." "Instead, the plaintiff contends that because paraphrased and quoted grand jury testimony was generally released to the public . . . the grand jury information in the draft indictments that reveal the inner workings of the grand jury process must have also been released, and as such, there is no secrecy left to protect." "The Court is not convinced that such a presumption demonstrates the level of specificity needed to show that the contents of drafts of the proposed indictments are sufficiently within the public domain and have lost their exempt status."
   
• Exemption 7, Threshold: The court holds that "it is undisputed that the draft indictments were compiled in the course of the independent counsel's investigation of possible violations of federal law, and thus were compiled for law enforcement purposes."
   
• Exemptions 6 & 7(C): The court holds that "the drafts of the proposed indictment are protected from disclosure under Exemption 7(c)." First, "the Court finds that Mrs. Clinton has a substantial privacy interest in the contents of the drafts of the proposed indictment." The court notes that "[t]he parties do not dispute that any person other than Mrs. Clinton has any privacy interest in the drafts of the proposed indictments." Also, "the Court agrees with the plaintiff's assertion that Mrs. Clinton no longer has an interest in 'avoiding the stigma' of having her name associated with the criminal investigation at issue, because it is widely known that this investigation was conducted." "However, . . . Mrs. Clinton has a significant privacy interest in not re-visiting past criminal investigations, particularly when the investigation resulted in an indictment never being filed against her." Additionally, "Mrs. Clinton still maintains an interest in the contents of the drafts of the proposed indictment, despite the fact that it is widely known that she was one of the subjects of an independent counsel investigation." "Moreover, the fact that information about the independent counsel's investigation and potential indictment of Mrs. Clinton is readily available to the public does not extinguish Mrs. Clinton's privacy interest, as the plaintiff asserts." "Here, the plaintiff has not shown that the information contained in the drafts of the proposed indictment are widely available to the public, let alone to the extent that the privacy interest Mrs. Clinton has in the drafts is extinguished." Second, "because the public interests offered by the plaintiff would not advance the purpose of the FOIA, the Court finds that the proffered public interests do not sufficiently outweigh Mrs. Clinton's privacy interests in the drafts of the proposed indictment to justify an unwarranted invasion of Mrs. Clinton's privacy." The court explains that "[t]he plaintiff, in this case, has not established that the information contained in the drafts of the proposed indictment would yield information about what the government 'is up to.'" The court explains that "disclosure of the drafts of the proposed indictment would likely 'not shed any light on the conduct of [the Office of the Independent Counsel],' but would rather disclose only information about Mrs. Clinton that is 'accumulated in various governmental files.'" The court also notes that the plaintiff's alleged public interest concerns "the activities of a discrete and now defunct government agency that has not been in existence for nearly two decades." The court also notes that "[w]hile Mrs. Clinton was first lady of the United States at the time of the investigation, she was neither part of a government agency nor a government official when the events that were the subject of the independent counsel's investigation occurred, which led to the drafting of the proposed indictments."
   
• Litigation Considerations, "Reasonably Segregable" Obligation: "[T]he Court is satisfied that the Archives has conducted a proper segregability analysis and may withhold the drafts of the proposed indictment in their entirety." In particular, "the Court is satisfied that the Archives has properly applied Rule 6(e) to protect grand jury material, and because the Archives has provided a detailed justification for withholding the drafts of the proposed indictment pursuant to Rule 6(e), the records can be withheld in their entirety."