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

United States District Court, District of Columbia

October 4, 2016

JUDICIAL WATCH, INC., Plaintiff,
v.
NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON United States District Judge

         The 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 judgment.[1]

         I. BACKGROUND

         In 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.

         Specifically, 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.

         By 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[2] 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 1996.

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.

         Clinton, 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.

         By 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.

         II. STANDARD OF REVIEW

         The 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).

         FOIA 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. 1978)).

         III. ANALYSIS

         The 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 361.[3]

         A. FOIA Exemptions

         1. Exemption 3

         Exemption 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.

         a. The Applicability of Rule 6(e)

         Rule 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.

         The 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 Administration, respectively.").

         Because 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.

         b. The Protections Provided by Rule 6(e)

         The 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.

         Although 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 ...


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