United States District Court, District of Columbia
E. BOASBERG, UNITED STATES DISTRICT JUDGE.
2016 presidential election may have come and gone, but
Plaintiffs Judicial Watch and Cause of Action Institute's
quest for Hillary Clinton's emails lives on. As most
readers will remember, Clinton used private email accounts
during her tenure as Secretary of State, embroiling the
government in myriad Freedom of Information Act suits. In
this case, however, Plaintiffs have taken a different tack,
alleging a violation of the Federal Records Act. That is,
they claim Defendants State Department and the National
Archives and Records Administration failed to maintain
records of Clinton's emails and must now seek the
Department of Justice's assistance in their recovery.
Most broadly characterized, Plaintiffs' suit pertains to
tens of thousands of communications. At this stage, however,
the parties have largely zeroed in on a sliver of that trove
- to wit, emails sent by Clinton on two Blackberry accounts
during her first weeks in office.
present controversy is narrower still. To establish its
good-faith recovery efforts, the Government has submitted a
declaration describing grand-jury subpoenas issued to
Clinton's service providers. The catch? It offers the
full version for in camera and ex parte
review only. Plaintiffs have responded with a Motion to
Produce, arguing that to the extent this Court might rely on
the declaration, they must have unfiltered access. After
reviewing the document in camera, the Court
concludes that it largely rehashes information already made
public, thus obviating any need for secrecy. The Court will
therefore grant Plaintiffs' Motion in large part and,
subject to a very limited exception, order that Defendants
resubmit an unredacted version of the declaration.
are two non-profit organizations, which describe themselves
as dedicated to promoting “transparency,
accountability, and integrity in government.” JW
Compl., ¶ 3; COA Compl., ¶ 21. In the wake of
reporting that former Secretary Clinton had used a personal
email account and server to “conduct official
government business, ” both organizations became
concerned that federal records had been unlawfully removed
from the State Department. See JW Compl., ¶ 5.
Judicial Watch therefore filed suit on May 2015, and Cause of
Action joined the mix two months later. Both alleged
violations of the Federal Records Act, 44 U.S.C. §§
2101 et seq., 2901 et seq., 3101 et
seq., 3301 et seq., “a collection of
statutes governing the creation, management, and disposal of
records by federal agencies.” Public Citizen v.
Carlin, 184 F.3d 900, 902 (D.C. Cir. 1999). Plaintiffs
claimed principally that the State Department had failed to
retain and search agency records, such that the current
Secretary of State must “initiate action through the
attorney general to recover the Clinton emails.” JW
Compl., ¶¶ 7, 29; COA Compl., ¶¶ 16-17,
Court dismissed the suit as moot. See Judicial Watch,
Inc. v. Kerry, 156 F.Supp.3d 69, 73 (D.D.C. 2016). To
proceed, it reasoned, Plaintiffs must allege an ongoing
injury under the FRA, but both NARA and State had already
taken substantial steps to recover more than 55, 000 pages of
Clinton's emails. Id. 76-78. The Court of
Appeals reversed. See Judicial Watch, Inc. v. Kerry,
844 F.3d 952, 953 (D.C. Cir. 2016). It allowed that
“actions taken by the Department and the FBI might have
mooted appellants' claims by securing custody of
all emails that the Attorney General could have
recovered in an enforcement action.” Id. at
955 (emphasis added). But although the tag-team efforts
“bore some fruit, ” the Court of Appeals believed
that “shaking the tree harder . . . might  bear more
still.” Id. Specifically, it highlighted that
Clinton had used a Blackberry account during her first weeks
in office - from January 21, 2009, to March 18, 2009 - and
the record showed no effort by State or the FBI to recover
those emails. Id. at 955-56. The Court of
Appeals then held that the case was not moot “[a]bsent
a showing that the requested enforcement action could not
shake loose a few more emails.” Id. at 955. It
noted, however, that Defendants might once again raise
mootness on remand. Id. at 956-57.
back for round two, Defendants have accepted the invitation
and renew their Motion to Dismiss on mootness grounds.
See ECF No. 33. To that end, they have explained
their efforts to track down the remaining Clinton emails,
including those recovered by the FBI during its
investigations. See, e.g., id., Exhs. 1-4.
Before the parties finish briefing, however, the Court must
pause to resolve a narrower controversy: whether Defendants
can submit one document - the Second Declaration of FBI
Special Agent E.W. Priestap - in camera and ex
parte in support of their Motion. Priestap previously
submitted an unredacted declaration (his “First
Declaration”) and there tipped off Plaintiffs that the
FBI had issued grand-jury subpoenas to third-party providers.
See Def. MTD, Exh. 1 (Declaration of E.W. Priestap),
¶ 4. Defendants then followed up with Preiestap's
Second Declaration, but this time redacted large portions of
the public version. See Def. Opp. to Mot. to Produce
at 4 n.1; see also ECF 43-3, Exh. 3. The Court
discusses the disputed Second Declaration in more detail
below, but for now, suffice it to say that it offers (a few)
more specifics about the grand-jury subpoenas.
Rule of Criminal Procedure 6(e) bars the disclosure of
matters occurring before a grand jury. See Fed. R.
Crim. P. 6(e)(2)(B). This is not to say, however, that Rule
6(e) draws “a veil of secrecy . . . over all matters
occurring in the world that happen to be investigated by a
grand jury.” SEC v. Dresser Indus., Inc., 628
F.2d 1368, 1382 (D.C. Cir. 1980) (en banc). On the
contrary, “[t]here is no per se rule against
disclosure of any and all information which has reached the
grand jury chambers.” Senate of Puerto Rico v.
DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987). Indeed, Rule
6(e) includes a carve-out, which allows a court to authorize
disclosure of “a grand jury matter . . . in connection
with a judicial proceeding” “at a time, in a
manner, and subject to any conditions that it directs.”
Fed. R. Crim. P. 6(e)(3)(E)(i).
trigger that provision, a party must show that the
sought-after information “ is needed to avoid a
possible injustice in another judicial proceeding,  that
the need for disclosure is greater than the need for
continued secrecy, and  that their request is structured
to cover only material so needed.” Douglas Oil Co.
of Cal. v. Petrol Stops Nw., 441 U.S. 211, 222 (1979).
This standard is “a highly flexible one . . . and
sensitive to the fact that the requirements of secrecy are
greater in some situations than in others.” United
States v. Sells Eng'g, 463 U.S. 418, 445 (1983).
Although the party seeking disclosure must show “with
particularity” why it needs the information, see
United States v. Procter & Gamble Co., 356 U.S. 677,
682 (1958), it will face a “lesser burden” as
“the considerations justifying secrecy become less
relevant.” Douglas Oil, 441 U.S. at 223.
case largely comes down to a simple balancing act between
“the need for disclosure” and “the need for
continued secrecy.” Douglas Oil, 441 U.S. at
222. On the one hand, Plaintiffs argue that disclosure is
crucial, as they must access any facts that Defendants use to
support their Motion to Dismiss. See Mot. to Produce
at 7. To refresh, that Motion turns on whether Defendants
have already exhausted all avenues for email recovery, such
that any action under the FRA would be - to adopt the D.C.
Circuit's metaphor - fruitless. As a result, they
submitted the Second Declaration, averring that the FBI
“undertook all reasonable and comprehensive
efforts” to recover relevant emails and providing
supporting evidence. See Second Decl., ¶ 11.
Not surprisingly, Plaintiffs are loath to take the
Government's word for it. Ordinarily, they argue, in
camera and ex parte review is appropriate only
“when a party seeks to prevent use of the
materials in the litigation, ” such as by asserting an
evidentiary privilege. Abourezk v. Reagan, 785 F.2d
1043, 1061 (D.C. Cir. 1986). In that instance, a court may
properly inspect the evidence “alone for the limited
purpose of determining whether the asserted privilege is
genuinely applicable.” Id. This case assumes a
different posture: The Government hopes it can rely
on its grand-jury subpoenas while still shielding their
contents from Plaintiffs and the public. “Only in the
most extraordinary circumstances, ” however,
“does  precedent countenance court reliance upon
ex parte evidence to decide the merits of a
other hand, the Government seeks to preserve the secrecy of
grand-jury proceedings, an interest that would typically
weigh heavily in its favor. As an initial matter, though, the
Second Declaration largely steers clear of Rule 6(e)'s
bread and butter: “the identities of witnesses or
jurors, the substance of testimony as well as actual
transcripts, the strategy or direction of the investigation,
the deliberations or questions of jurors, and the
like.” In re Motions of Dow Jones & Co.,
Inc., 142 F.3d 496, 500 (D.C. Cir. 1998) (internal
quotation marks omitted). Rather, it recounts one agent's
description of grand-jury subpoenas. The D.C. Circuit
“has recognized that the term ‘grand jury
subpoena' is in some respects a misnomer, because the
grand jury itself does not decide whether to issue the
subpoena; the prosecuting attorney does.” Lopez v.
DOJ, 393 F.3d 1345, 1349 (D.C. Cir. 2005) (quoting
Doe v. DiGenova, 779 F.2d 74, 80 & n.11 (D.C.
Cir. 1985)). Although such a subpoena likely falls under Rule
6(e)'s purview - for instance, when it betrays “the
direction of the relevant investigation, ” id.
at 1350 - the Government's broad summary of its generic
subpoenas starts with a somewhat more tenuous claim to
importantly, the D.C. Circuit's case law “reflects
the common-sense proposition that secrecy is no longer
‘necessary' when the contents of grand jury matters
have become public.” In re Grand Jury Subpoena,
Judith Miller, 438 F.3d 1138, 1140 (D.C. Cir. 2006). In
this case, the Government has already revealed that it issued
grand-jury subpoenas to Clinton's service providers.
See First Decl., ¶ 4. That information, then,
“is sufficiently widely known [such] that it has lost
its character as Rule 6(e) material.” In re
North, 16 F.3d 1234, 1245 ...