United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 22, 2017 Decided December 1, 2017
No. 16-5366
JUDICIAL WATCH, INC.,
APPELLANT
v.
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION,
APPELLEE
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 for the Court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Judicial Watch filed a Freedom of
Information Act (“FOIA”) request seeking disclosure of “[a]ll
2
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
3
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
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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
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“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
“generic” privacy interests minimal. Applt’s Br. 24-25. This
position overlooks the fact that Mrs. Clinton’s privacy interest
is heightened in the context of a draft indictment.
“[W]here individuals have been investigated but not
charged with a crime,” disclosure of material properly exempt
under Exemption 7(C) “represents a severe intrusion on the
privacy interests of the individual[] in question.” Fund for
Constitutional Gov’t, 656 F.2d at 866. The requested records
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concern a staff-proposed formal government accusation of
criminal conduct. An unissued draft indictment by definition
contains unproven allegations that were never adopted by the
Independent Counsel much less by a grand jury. Cf.
Bloomgarden v. U.S. Dep’t of Justice, 874 F.3d 757, 761 (D.C.
Cir. 2017). No indictment charging Mrs. Clinton with a crime
was ever issued by a grand jury, nor was any criminal
conviction of her obtained by the Independent Counsel. See
Final Report at 411.
“The disclosure of th[e] [requested] information would
produce the unwarranted result of placing [Mrs. Clinton] in the
position of having to defend [her] conduct in the public forum
outside of the procedural protections normally afforded the
accused in criminal proceedings.” Fund for Constitutional
Gov’t, 656 F.2d at 865. Although she may not be entitled as a
public figure to any more protection under Exemption 7(C)
than the average person, the potential immediate harm to her
would appear to be augmented simply because the Independent
Counsel’s investigation of President and Mrs. Clinton attracted
great public attention. Indeed, at the time Judicial Watch filed
its request she was contemplating running for President of the
United States and declared her candidacy shortly thereafter.
Not only would she be without the procedural protections
accorded to a person accused of a crime, but the release after
so many years also means the defunct Office of Independent
Counsel would be unavailable to explain its decision not to
seek an indictment against her. These circumstances threaten
the presumption of innocence at the heart of the justice system.
ACLU v. U.S. Dep’t of Justice, 750 F.3d 927, 933 (D.C. Cir.
2014) (citing Coffin v. United States, 156 U.S. 432, 453
(1895)). As indicated during oral argument, it is difficult to
imagine circumstances where a draft indictment could ever be
disclosed without seriously infringing an individual’s privacy
interest. See, e.g., Oral Argument at 22:47-23:50. Having
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never been formally “accused of criminal conduct” by the
Independent Counsel, Mrs. Clinton, no less than an individual
who has been charged but not convicted, is “entitled to move
on with [her] li[fe] without having the public reminded of [her]
alleged but never proven transgressions.” ACLU, 750 F.3d at
933.
Consequently, Mrs. Clinton’s significant privacy interest
in the contents of the Independent Counsel’s investigative files
“should yield only where exceptional interests militate in favor
of disclosure.” Fund for Constitutional Gov’t, 656 F.2d at 866.
Judicial Watch has identified no such interests. First, Judicial
Watch maintains that disclosure would help the public learn
more about the operations of the Office of Independent
Counsel. There is doubtless a “weighty public interest” in
evaluating government investigations of public officials.
CREW, 746 F.3d at 1092. That interest is greatly reduced,
however, precisely because of the voluminous information
already in the public domain about the Independent Counsel’s
investigation of President and Mrs. Clinton. The political
branches of the federal government have assessed the evidence
and documented their proceedings and findings in publicly
available reports. See Fund for Constitutional Gov’t, 656 F.2d
at 865. As noted, the Independent Counsel released a final
report and a staff summary of the evidence has been released
as well, and Committees of both Houses of Congress have
released information about their investigations. In these
circumstances, the incremental public interest in learning how
the Independent Counsel carried out his investigation of Mrs.
Clinton by disclosure of a draft indictment appears slight.
Mere “general public curiosity” is not enough. Fund for
Constitutional Gov’t, 656 F.2d at 866.
Second, Judicial Watch maintains there is renewed interest
in independent counsel investigations. Even assuming this is
8
true, a party seeking disclosure of investigative materials must
still “adequately support[] its ‘public interest’ claim with
respect to the specific information being withheld.” Senate of
the Commonwealth of P.R. v. U.S. Dep’t of Justice, 823 F.2d
574, 588 (D.C. Cir. 1987). Judicial Watch has not identified
what additional insights the public would glean from disclosure
of staff drafts of an indictment of Mrs. Clinton. The nature of
possible criminal activity by Mrs. Clinton that the Independent
Counsel investigated is identified in the Final Report and a staff
memorandum summarizes the evidence before that Office. It
is true that the court concluded in CREW, 746 F.3d at 1093,
that disclosure of witness statements, prosecution reports, and
memoranda related to the investigation of a former Majority
Leader of the United States House of Representatives could
shine a light on “the diligence of the [Federal Bureau of
Investigation]’s investigation and the [Department of Justice]’s
exercise of its prosecutorial discretion[,]” specifically “whether
the government had the evidence but nevertheless pulled its
punches.” Unlike CREW, the instant case concerns a draft
indictment where voluminous information about the
Independent Counsel’s investigation has been released.
Judicial Watch and the public at large can more readily assess
whether the Independent Counsel “pulled its punches.” Nor
has Judicial Watch explained how disclosure of a draft
indictment would improve public understanding of the wisdom
of appointing special prosecutors in general. The asserted
interest fails to rise above “general public curiosity.” See Fund
for Constitutional Gov’t, 656 F.2d at 866.
Further, by providing a detailed description of the
requested documents, identifying applicable exemptions, and
explaining why they could not be released in redacted form, the
National Archives properly withheld the documents in full. See
Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776
(D.C. Cir. 2002); 5 U.S.C. § 552(b). Judicial Watch’s assertion
9
that no segregability analysis was undertaken ignores that its
request was for “[a]ll versions of indictments,” not more
informal statements by prosecutors. The National Archives’
response to its request was appropriate. See Juarez v. U.S.
Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir. 2008).