United States District Court, District of Columbia
B. WALTON United States District Judge
plaintiff, Judicial Watch, Inc., filed this civil case,
alleging that the defendant, the National Archives and
Records Administration ("Archives"), violated the
Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552 (2012), by improperly withholding records subject
to disclosure under the FOIA. Complaint ("Compl.")
¶¶ 10-12. Currently before the Court are the
Defendant's Motion for Summary Judgment ("Defi's
Mot."), ECF No. 10, and the Plaintiffs Cross-Motion for
Summary Judgment ("Pl's Mot."), ECF No. 13.
After carefully considering all of the relevant submissions
by the parties, the Court concludes for the following reasons
that it must grant the defendant's motion for summary
judgment and deny the plaintiffs cross-motion for summary
January 1994, Robert B. Fiske, Jr. was appointed as
independent counsel by United States Attorney General Janet
Reno, "to investigate allegations of criminal activity
in connection with a defunct Arkansas thrift institution, the
Madison Guaranty Savings & Loan Association
("Madison Guaranty")." Pl's Facts ¶
1. Among other matters, the independent counsel was tasked
with investigating Hillary Clinton's involvement with
Madison Guaranty, as well as an Arkansas real estate venture
named "Whitewater Development Company, Inc., " and
an investment company named "Capital Management
Services." Id. ¶4. In August of 1994,
Kenneth Starr replaced Mr. Fiske as independent counsel.
Id. ¶ 6. Five reports detailing the
investigation were ultimately prepared by the independent
counsel, id. ¶ 7, and are currently publicly
available on the United States Government Publishing
Office's website, id. ¶ 9. Included in the
reports is information gathered from numerous sources,
including but not limited to, interviews, deposition
testimony, grand jury testimony from twenty-one witnesses,
and interrogatory responses. Id. ¶¶ 23-25.
one of the reports describes Mrs. Clinton's legal
representation of Madison Guaranty regarding "numerous
criminal and other fraudulent acts" between April 1985
and July 1986. Id. ¶¶ 10-13. During the
course of the independent counsel's investigation, Mrs.
Clinton "made numerous statements and gave sworn
testimony regarding her representation of Madison Guaranty,
" id. ¶ 20, and the independent counsel
investigated whether Mrs. Clinton "had committed
perjury, made false statements, or obstructed justice during
those investigations, " id. ¶ 21,
ultimately concluding that "there was insufficient
evidence to prove beyond a reasonable doubt that Mrs. Clinton
had committed any federal criminal offense, "
id. ¶ 22. Upon termination of the investigation
by the independent counsel, federal law mandates that custody
of the records compiled by the independent counsel be
transferred to the Archives, see 28 U.S.C. § 594(k)(1)
(2000), which now maintains custody of the records of the
"independent counsels who served under Title VI of the
Ethics in Government Act of 1978, " Def.'s Facts
¶ 1, ECF No. 10-4. Included in the records are
"drafts of a proposed indictment of Hillary Rodham
Clinton." Id. ¶ 4.
letter dated March 9, 2015, the plaintiff submitted a request
to the Archives under the FOIA for the following records:
All versions of indictments against Hillary Rodham Clinton,
including, but not limited to, Versions 1, 2, and 3 in box
2250 of the Hickman Ewingt Attorney Files, the "HRC/Draft
Indictment" in box 2256 of the Hickman Ewing Attorney
Files, as well as any [and] all versions written by Deputy
Independent Counsel Hickman Ewing, Jr. prior to September of
Id. ¶ 8. The Archives "responded to [the]
plaintiffs request by locating the two boxes of records of
Mr. Starr and his successors, " both which contain
drafts of proposed indictments of Mrs.
but no other responsive documents. Def.'s Mem. at 3. By
letter dated March 19, 2015, the Archives advised the
plaintiff that it "ha[d] examined the folders from
Hickman Ewing's attorney files that [the plaintiff]
requested" and was withholding the folders entitled
"Draft Indictment" from box 2250 and "Hillary
Rodham Clinton/Webster L. Hubbell Draft Indictment" from
box 2256 in full pursuant to Exemption (7)(C). Def.'s
Mot., Exhibit ("Ex.") C at 1.
letter dated May 14, 2015, the plaintiff appealed
administratively the withholding of the above referenced
records, see Compl. ¶ 7, and on October 20, 2015, the
plaintiff commenced this action, requesting that the Court
compel the Archives to comply with the FOIA and refrain from
unlawfully withholding documents responsive to its FOIA
request, see id. ¶ 11. The defendant now moves
for summary judgment, asserting that it is entitled to
judgment as a matter of law because the drafts of the
proposed indictments are protected from disclosure under
several FOIA exemptions and Rule (6)(e) of the Federal Rules
of Criminal Procedure ("Rule 6(e)"). Def's Mem.
at 1. In addition to opposing the defendant's motion for
summary judgment, the plaintiff also cross moves for summary
judgment, arguing that the defendant has not satisfied its
burden of proving that FOIA exemptions are applicable to the
withheld responsive documents and that Rule 6(e) does not
apply to the Archives. Pl's Opp'n at 1, 9.
STANDARD OF REVIEW
Court must grant a motion for summary judgment "if the
movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a
matter of law." Fed.R.Civ.P. 56(a). When ruling on
amotion for summary judgment, the Court must view the
evidence in the light most favorable to the non-moving party.
Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir.
2006) (citing Reeves v. Sanderson Plumbing Prods.,
530 U.S. 133, 150 (2000)). The Court must therefore draw
"all justifiable inferences" in the non-moving
party's favor and accept the non-moving party's
evidence as true. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 255 (1986). The non-moving party, however,
cannot rely on "mere allegations or denials."
Burke v. Gould, 286 F.3d 513, 517 (D.C. Cir. 2002)
(quoting Anderson, 477 U.S. at 248). Thus,
"[c]onclusory allegations unsupported by factual data
will not create a triable issue of fact." Pub.
Citizen Health Research Grp. v. Food & Drug Admin.,
185 F.3d 898, 908 (D.C. Cir. 1999) (alteration in original)
(quoting Exxon Corp. v. Fed. Trade Comm'n, 663
F.2d 120, 126-27 (D.C. Cir. 1980)). If the Court concludes
that "the nonmoving party has failed to make a
sufficient showing on an essential element of [its] case with
respect to which [it] has the burden of proof, " then
the moving party is entitled to summary judgment. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). However, at
bottom, "in ruling on cross-motions for summary
judgment, the [C]ourt shall grant summary judgment only if
one of the moving parties is entitled to judgment as a matter
of law upon material facts that are not genuinely
disputed." Shays v. Fed. Election Comm'n,
424 F.Supp.2d 100, 109 (D.D.C. 2006) (citation omitted).
cases are typically resolved on motions for summary judgment.
Ortiz v. U.S. Dep't of Justice, 67 F.Supp.3d
109, 116 (D.D.C. 2014); Defenders of Wildlife v. U.S.
Border Patrol 623 F.Supp.2d 83, 87 (D.D.C. 2009).
"[The] FOIA requires federal agencies to disclose, upon
request, broad classes of agency records unless the records
are covered by the statute's exemptions."
Students Against Genocide v. Dep't of State, 257
F.3d 828, 833 (D.C. Cir. 2001) (citation omitted). In a FOIA
action, the defendant agency has "[the] burden of
demonstrating that the withheld documents [requested by the
FOIA requester] are exempt from disclosure." Boydv.
Dep't of Justice, 475 F.3d 381, 385 (D.C. Cir. 2007)
(citation omitted). The Court will grant summary judgment to
the government in a FOIA case only if the agency can prove
"that it has fully discharged its obligations under the
FOIA, after the underlying facts and the inferences to be
drawn from them are construed in the light most favorable to
the FOIA requester." Friends of Blackwater v.
Dep't of Interior, 391 F.Supp.2d 115, 119 (D.D.C.
2005) (quoting Greenberg v. U.S. Dep't of
Treasury, 10 F.Supp.2d 3, 11 (D.D.C. 1998)). Thus, in a
lawsuit brought to compel the production of documents under
the FOIA, "an agency is entitled to summary judgment if
no material facts are in dispute and if it demonstrates
'that each document that falls within the class requested
either has been produced ... or is wholly[, or partially, ]
exempt [from disclosure].'" Students Against
Genocide, 257 F.3d at 833 (quoting Goland v. Cent.
Intelligence Agency, 607 F.2d 339, 352 (D.C. Cir.
issue before the Court in this case is whether the defendant
properly withheld the draft indictments pursuant to
Exemptions 3, 6 and 7(C) of the FOIA and Rule 6(e). Congress
amended the FOIA resulting in its current content in 1966,
with the objective of promoting "full agency
disclosure." See U.S. Dep't of Justice v.
Reporters Comm. for Freedom of Press, 489 U.S. 749, 754
(1989). When an agency receives a request for records that
reasonably describe such records, the agency must make those
records available to the requester. See Id.
at 754-55. While there are nine expressly delineated
exemptions from compelled disclosure, the dominant objective
of the act is disclosure, not secrecy. See Dep't of
Air Force v. Rose, 425 U.S. 352, 360-61 (1976). The
Supreme Court has explained this basic purpose as providing a
way for citizens to "know what their government is up
to." See Reporters Comm., 489 U.S. at 773.
Thus, courts should narrowly construe the statutory
exemptions when determining if records requested under the
FOIA should be disclosed. See Rose, 425 U.S. at
3 of the FOIA excludes from compelled disclosure matters that
are "specifically exempted from disclosure by
statute." 5 U.S.C. § 552(b)(3). A statute satisfies
Exemption 3 only if it "requires that the matters be
withheld from the public in such a manner as to leave no
discretion on the issue, " or "establishes
particular criteria for withholding or refers to particular
types of matters to be withheld." Id. The
plaintiff does not dispute that Rule 6(e), which prohibits
disclosure of "matter[s] occurring before the grand
jury, " Fed. R. Crim. P. 6(e), is considered a
"statute" for purposes of Exemption 3. Pl's
Opp'n at 9; see also Fund for Const. Gov't v.
Nat'l Archives & Records Serv., 656 F.2d 856,
867-68 (1981). Instead, the plaintiff asserts that Rule 6(e)
does not in itself apply to the Archives, nor is it
applicable to the drafts of the proposed indictments because
they do not fall within the purview of matters occurring
before the grand jury and because the information in the
drafts is sufficiently public to warrant disclosure. The
Court will address each of the plaintiff s arguments in turn.
The Applicability of Rule 6(e)
6(e) specifies seven categories of persons that are bound by
the Rule's secrecy provision and expressly provides that
"[n]o obligation of secrecy may be imposed on any person
except in accordance with Rule 6(e)(2)(B)." Fed. R.
Crim. P. 6(e)(2)(A). The seven categories of persons who
"must not disclose a matter occurring before the grand
jury" are: (i) a grand juror, (ii) an interpreter, (iii)
a court reporter, (iv) an operator of a recording device, (v)
a person who transcribes recorded testimony, (vi) an attorney
for the government, or (vii) a person to whom disclosure is
made under Rule 6(e)(3)(A)(ii) or (iii). Fed. R. Crim. P.
6(e)(2)(B). The plaintiff contends that because the Archives
is not explicitly included in the delineated list, Rule 6(e)
secrecy "does not apply to the Archives." Pl's
Opp'n. at 9. The Court, however, is unpersuaded.
District of Columbia Circuit has held that an independent
counsel is an attorney for the government, which is one of
the seven categories, and thus, "is covered by Rule 6(e)
and its bonds of secrecy." In re North, 16 F.3d
1234, 1244 (DC. Cir. 1994). Upon termination of the Office of
Independent Counsel, the active independent counsel was
obligated to transfer all records which had been created
during its tenure to the Archivist of the United States
("Archivist"), 28 U.S.C. § 594(k)(1), and was
to "clearly identify which of [those] records [were]
subject to rule 6(e), " In re North, 16 F.3d at
1244 (quoting 28 U.S.C. § 594(k)(1)). Furthermore, the
Archivist is "responsible for the custody, use, and
withdrawal of records transferred to him." 44 U.S.C.
§ 2108 (2012). A FOIA analysis of whether to disclose
records that have been transferred to the Archives is
conducted as if the records remain in the possession of the
agency that created them. See Cause of Action v.
Nat'l Archives & Records Admin., 753 F.3d 210,
216 (D.C. Cir. 2014) (holding that transfer of possession to
the Archives did not affect the document's status under
the FOIA because the Court was "confident that Congress
did not intend to expose . . . material to FOIA simply
because the material ha[d] been deposited with the
Archives"); see also Fund for Const. Gov't,
656 F.2d at 870 (allowing the withholding of the documents at
issue even when custody of the documents had been transferred
to the Archives). By its own language, the statute governing
the Archives provides that the statutory restrictions
applicable to an agency also transfer with the records being
transferred to the Archives. See 44 U.S.C. §
2108 ("When records, the use of which is subject to
statutory limitations and restrictions, are so transferred,
permissive and restrictive statutory provisions with respect
to the examination and use of records applicable to the head
of the agency from which the records were transferred or to
employees of that agency are applicable to the Archivist and
to the employees of the National Archives and Records
Rule 6(e) applies to the independent counsel, see In re
North, 16 F.3d at 1244, 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. And,
just as in Cause of Action v. National Archives &
Records Administration, 753 F.3d at 216, where the
transfer of documents to the Archives did not affect their
FOIA status, 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). Therefore, the Court finds that
Rule 6(e) applies to the Archives.
The Protections Provided by Rule 6(e)
defendant contends that the drafts of the proposed
indictments are protected from disclosure under Exemption 3
and Rule 6(e) because they "would tend to reveal the
secret workings of the grand jury." Defi'sMem. at 8
(citing Boehm v. FBI, 948 F.Supp.2d 9, 27 (D.D.C.
2013)). The plaintiff responds that the Archives has failed
to meet its burden of showing that the draft indictments
constitute "matter[s] occurring before the grand jury,
" Pl's Opp'n at 18, because it relies upon a
declarant who "paints with far too broad of a brush,
" Id. at 14, and presents "opaque and
shifting, if not contradictory, testimony, " Pl's
Reply at 9.
Rule 6(e) prohibits disclosure of "matter[s] occurring
before [a] grand jury, " it should not be read in a
manner that creates "a veil of secrecy.. . over all
matters occurring in the world that happen to be investigated
by a grand jury." Senate of P.R. exrel. Judiciary
Comm. v. U.S. Dep't of Justice, 823 F.2d 574, 582
(D.C. Cir. 1987) (quoting SEC v. Dresser Indus.,
Inc.,628 F.2d 1368, 1382 (D.C. Cir. 1980) (en banc)).
"There is no per se rule against disclosure of
any and all information which has reached the grand jury
chambers . . . ." Senate of PR., 823 F.2d at
582. Rather, "the touchstone is whether disclosure would
'tend to reveal some secret aspect of the grand
jury's investigation, '" such as "the
identities of witnesses or jurors, the substance of
testimony, the strategy or direction of the investigation,
the deliberations or questions of jurors and the like."
Id. And, there must be a "nexus between