Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Judicial Watch, Inc. v. Tiillerson

United States District Court, District of Columbia

August 31, 2017

JUDICIAL WATCH, INC., Plaintiff,
v.
REX W. TIILLERSON, in his official capacity as U.S. Secretary of State, Defendant. CAUSE OF ACTION INSTITUTE, Plaintiff,
v.
REX W. TILLERSON, in his official capacity as U.S. Secretary of State, and DAVID S. FERRIERO, in his official capacity as U.S. Archivist, Defendants.

          MEMORANDUM OPINION

          JAMES E. BOASBERG, UNITED STATES DISTRICT JUDGE.

         The 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.

         The 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.

         I. Background

         Plaintiffs 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, 68.

         This 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.

         Now 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.

         II. Legal Standard

         Federal 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).

         To trigger that provision, a party must show that the sought-after information “[1] is needed to avoid a possible injustice in another judicial proceeding, [2] that the need for disclosure is greater than the need for continued secrecy, and [3] 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.

         III. Analysis

         This 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 dispute.” Id.

         On the 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 secrecy.

         More 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 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.