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JW v NARA summary judgment 01740

JW v NARA summary judgment 01740

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Case 1:15-cv-01740-RBW Document Filed 02/02/16 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
_____
JUDICIAL WATCH, INC.
Plaintiff,
No. 1:15-cv-01740-RBW
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION,
Defendant.
_____
DEFENDANT MOTION FOR SUMMARY JUDGMENT
Defendant, the National Archives and Records Administration, hereby moves for
summary judgment pursuant Fed. Civ. 56(a). The grounds for this motion are set forth the memorandum submitted herewith.
Respectfully submitted,
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
CHANNING PHILIPS
United States Attorney
ELIZABETH SHAPIRO
Deputy Director
Dated: February 2016 David Glass
DAVID GLASS, Bar 544549
Senior Trial Counsel
Department Justice, Civil Division Massachusetts Ave., N.W., Room 7200
Washington, D.C. 20530-0001
Tel: (202) 514-4469/Fax: (202) 616-8470
E-mail: david.glass@usdoj.gov
Attorneys for Defendant
Case 1:15-cv-01740-RBW Document Filed 02/02/16 Page
CERTIFICATE SERVICE hereby certify that February 2016, served the within motion, the memorandum
support the motion, the proposed order, the exhibit the motion, and the statement pursuant LCvR 7(h)(1) all counsel record filing them with the Court means its ECF
system. David Glass
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
_____
JUDICIAL WATCH, INC.
Plaintiff,
No. 1:15-cv-01740-RBW
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION,
Defendant.
_____
MEMORANDUM SUPPORT DEFENDANT MOTION
FOR SUMMARY JUDGMENT
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
TABLE CONTENTS
PRELIMINARY STATEMENT .....................................................................................................1
FACTUAL BACKGROUND ..........................................................................................................2
ARGUMENT: NARA ENTITLED SUMMARY JUDGMENT ..........................................4
NARA HAS CONDUCTED REASONABLE SEARCH FOR DRAFTS THE
PROPOSED INDICTMENT ...............................................................................................5
II.
THE DRAFTS THE PROPOSED INDICTMENT ARE PROTECTED FROM
DISCLOSURE FOIA EXEMPTION AND FED. CRIM. 6(e) BECAUSE
DISCLOSURE THE DRAFTS WOULD TEND REVEAL THE SECRET
WORKINGS THE GRAND JURY ...............................................................................6
III.
THE DRAFTS THE PROPOSED INDICTMENT ARE PROTECTED FROM
DISCLOSURE FOIA EXEMPTIONS 7(C) AND BECAUSE THE DRAFTS
INVOLVE SIGNIFICANT PRIVACY INTEREST THAT NOT OUTWEIGHED ANY PUBLIC INTEREST DISCLOSURE THAT PLAINTIFF HAS
ARTICULATED..................................................................................................................9
THE DRAFTS THE PROPOSED INDICTMENT ARE PROTECTED FROM DISCLOSURE
EXEMPTION 7(C) ......................................................................................................9
THE DRAFTS THE PROPOSED INDICTMENT WERE COMPILED FOR LAW
ENFORCEMENT PURPOSES..............................................................................9
DISCLOSURE THE DRAFTS THE PROPOSED INDICTMENT CAN
REASONABLY EXPECTED CONSTITUTE UNWARRANTED INVASION
PERSONAL PRIVACY......................................................................................10
Mrs. Clinton Has Significant Personal Privacy Interest
Avoiding Disclosure the Drafts the Proposed Indictment .....10
The Interest Mrs. Clinton Avoiding Disclosure the
Drafts Not Overcome Any Public Interest Disclosure that
Plaintiff Has Articulated ................................................................12
THE DRAFTS THE PROPOSED INDICTMENT ARE PROTECTED FROM DISCLOSURE
EXEMPTION .........................................................................................................14
CONCLUSION ..............................................................................................................................15
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
TABLE CASES
Abdeljabbar Bur. Alcohol, Tobacco Firearms, F.3d 158 (D.D.C. 2014) .......................4
ACLU Dep Justice (DOJ), 655 F.3d (D.C. Cir. 2011) .....................................................11
ACLU DOJ, 750 F.3d 927 (D.C. Cir. 2014) ..............................................................................14
Beck DOJ, 997 F.2d 1489 (D.C. Cir. 1993) ...............................................................................15
Blackwell FBI, 646 F.3d (D.C. Cir. 2011) ..............................................................................9
Boehm FBI, 948 Supp. (D.D.C. 2013) .............................................................................8
Citizens for Resp. Ethics Wash. DOJ, 746 F.3d 1082 (D.C. Cir. 2014) ............................11
Computer Professionals for Soc. Resp. Secret Serv., F.3d 897 (D.C. Cir. 1996) .................13
Dep Def. Fed. Labor Rel. Auth., 510 U.S. 487 (1994) ........................................................13
Dep the Interior Klamath Water Users Prot. Ass 532 U.S. (2001)................................4
DOJ Reporters Comm. for Freedom the Press, 489 U.S. 749 (1989) .....................................2
Freedom Watch NSA, 783 F.3d 1340 (D.C. Cir. 2015) ...............................................................5
Fund for Const. Gov Nat Archives Records Serv., 656 F.2d 856 (D.C. Cir. 1981) ......7,
Kowalczyk DOJ, F.3d 386 (D.C. Cir. 1996) .......................................................................5,
Lopez DOJ, 393 F.3d 1345 (D.C. Cir. 2005) ...............................................................................7
Morley CIA, 508 F.3d 1108 (D.C. Cir. 2007) ..........................................................................5,
Morrison Olson, 487 U.S. 654 (1988) .........................................................................................1
Murphy Exec. Office for U.S. Att ys, 789 F.3d 204 (D.C. Cir. 2015) ......................................6,
Nat Archives Records Admin. Favish, 541 U.S. 147 (2004) ...............................9, 10, 12,
Prison Legal News Samuels, 787 F.3d 1142, 1146 (D.C. Cir. 2015) ..............................5, 14,
Stern FBI, 737 F.2d (D.C. Cir. 1984)..............................................................................10,
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
Valencia-Lucena Coast Guard, 180 F.3d 321 (D.C. Cir. 1999) ..............................................5,
iii
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
PRELIMINARY STATEMENT
[T]he appointment independent counsel investigate and, appropriate,
prosecute certain high-ranking Government officials for violation federal criminal laws was
allow[ed] for Title the Ethics Government Act 1978, Pub. No. 95-521,
Stat. 1867. Morrison Olson, 487 U.S. 654, 660 (1988). Title expired its terms June
30, 1999. See U.S.C. 599.1
Defendant, the National Archives and Records Administration (NARA), maintains
custody the records the independent counsels who served under Title VI. Decl. Martha
Wagner Murphy (Murphy Decl.), Ex. hereto, 15. The records maintained NARA include
the records Kenneth Starr and his successors. Id. 18. Mr. Starr served independent
counsel under Title from 1994 until 1999; his successors served until 2004. Id. Included
among the records Mr. Starr and his successors are drafts proposed indictment Hillary
Rodham Clinton. Id. 23.
Plaintiff, Judicial Watch, seeks order under the Freedom Information Act (FOIA),
U.S.C. 552, directing NARA produce the drafts the proposed indictment. See Compl.,
ECF No. Prayer. Instead issuing such order, the Court should award NARA
summary judgment. NARA entitled summary judgment because has searched
appropriately for drafts the proposed indictment. NARA also entitled summary judgment
because the drafts the proposed indictment are protected from disclosure FOIA Exemption and Fed. Crim. 6(e) and, separately, FOIA Exemptions 7(C) and (6). The drafts are
protected from disclosure Exemption and Rule 6(e) because their disclosure would tend
Section 599 provides with certain exceptions that [t]his chapter shall cease effective five years after the date the enactment the Independent Counsel Restoration Act 1994. The Independent Counsel Restoration Act 1994, Pub. No. 103-270, 108 Stat. 732, was enacted June 30, 1994.
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
reveal the secret workings the grand jury. The drafts are also protected from disclosure
Exemptions 7(C) and because the drafts involve significant privacy interest that not
outweighed any public interest disclosure that plaintiff has articulated.2
FACTUAL BACKGROUND
THE UNIVERSE RECORDS AND THE INDEX
The records Mr. Starr and his successors fill approximately 3149 cubic feet space
NARA. Murphy Decl. 19. index those records was prepared the second and last
Mr. Starr successors and her staff connection with the transfer the records NARA.3 Id. copy that index was provided plaintiff NARA May 2015. Id. n.7.
THE FOIA REQUEST AND THE SEARCH letter dated March 2015, plaintiff submitted FOIA request NARA for the
following records:
All versions indictments against Hillary Rodham Clinton, including, but not
limited to, Versions and box 2250 the Hickman Ewing Attorney Files,
the HRC/__Draft Indictment box 2256 the Hickman Ewing Attorney Files, well any all versions written Deputy Independent Counsel Hickman
Ewing, Jr. prior September 1996.
Murphy Decl. Hickman Ewing was lawyer who worked Kenneth Starr deputy
Little Rock. Id. n.2. Plaintiff said its request that [t]he records question are located
the material submitted [NARA] the Office Independent Counsel Re: Madison
Guaranty Savings Loan Association, also known the records Starr. Id.
FOIA directs the district courts determine the matter novo where, here, requester challenges
agency withholding records. Dep Justice Reporters Comm. for Freedom the Press, 489 U.S. 749, 755
(1989) (quoting U.S.C. 552(a)(4)(B)). For that reason, NARA not limited this action its reliance the
administrative stage exclusively Exemption 7(C). independent counsel was required Title transfer the Archivist the United States all records
which ha[d] been created received the counsel office upon termination that office. U.S.C.
594(k)(1). NARA administered under the supervision and direction the Archivist. U.S.C. 2102.
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
NARA responded plaintiff request locating the two boxes the records Mr.
Starr and his successors which the request referred, Boxes 2250 and 2256. Murphy Decl.
20-21. Both boxes bear the name, Hickman Ewing Attorney Work Product both boxes
bear the heading HRC, the initials Hillary Rodham Clinton; and both boxes state their
face that their contents include material subject Rule 6(e) the Federal Rules Criminal
Procedure. Id. 20. Box 2250 contains folder labeled Draft Indictment. Id. Box 2256
contains folder labelled Hillary Rodham Clinton/Webster Hubbell Draft Indictment. Id.
Multiple drafts the proposed indictment Mrs. Clinton were located NARA within these
folders. See id. Ex.
NARA also responded plaintiff FOIA request search[ing] the Box Contents and
Subject fields [of the index the records Mr. Starr and his successors] identify any other
folders that could contain Indictment and Hillary Rodham Clinton Hillary Clinton
HRC. Murphy Decl. 21. This search did not locate any other responsive folders. Id.
Each the drafts the proposed indictment that NARA located marked its face draft; denominated draft accompanying cover memos; shows through its
incompleteness that draft. Murphy Decl. 23. Some the drafts contain marginalia
annotations; some are identical duplicates each other; some are non-identical duplicates; some
are accompanied cover memos; some are accompanied handwritten notes separate
pieces paper; and some are accompanied fax cover sheets. Id. One the drafts consists
merely scraps draft indictment. Id. NARA withholding each the drafts full
pursuant FOIA Exemption and Rule 6(e), id. 25, and, separately, pursuant FOIA
Before transferring records the Archivist the United States, independent counsel was required Title clearly identify which the records was subject Rule 6(e) the Federal Rules Criminal Procedure
grand jury materials. U.S.C. 594(k)(1).
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
Exemptions 7(C) and Id. 35. indictment Mrs. Clinton was ever issued, id. 34, and charges against her were ever brought. Id. 35.
THE ADMINISTRATIVE APPEAL AND THIS ACTION letter dated March 19, 2015, NARA advised plaintiff that had examined the folders
from Hickman Ewing attorney files that you requested and was withholding the following
records full pursuant FOIA Exemption 7(C): From box 2250 the folder Draft
Indictment (38 pages) From box 2256 the folder Hillary Rodham Clinton/Webster
Hubbell Draft [Indictment] (approximately 200 pages). Murphy Decl. The records
which NARA referred its letter included records other than drafts the proposed indictment.
See id. 22. letter dated May 14, 2015, plaintiff appealed administratively the withholding the
above records. Murphy Decl. letter dated October 16, 2015, NARA advised plaintiff
that its administrative appeal had been placed into the processing queue. Id. 10. October
20, 2015, plaintiff commenced this action. Id. 11. NARA FOIA regulations provide that
NARA will cease processing appeal requester files FOIA lawsuit. C.F.R.
1250.74(a)(2). accordance with 1250.74(a)(2), plaintiff commencement this action
caused NARA close plaintiff administrative appeal. Murphy Decl. 12.
ARGUMENT
NARA ENTITLED SUMMARY JUDGMENT.
Upon request, FOIA mandates disclosure records held federal agency, see
U.S.C. 552, unless the documents fall within enumerated exemptions, see 552(b). Dep
the Interior Klamath Water Users Prot. Ass 532 U.S. (2001). FOIA cases typically
and appropriately are decided motions for summary judgment. Abdeljabbar Bur.
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
Alcohol, Tobacco Firearms, Supp. 158, 167 (D.D.C. 2014) (Walton, J.) (quoting
ViroPharma Inc. Dep HHS, 839 Supp. 184, 189 (D.D.C. 2012)). prevail
summary judgment, the defending agency must show beyond material doubt that has
conducted search reasonably calculated uncover all relevant documents. Morley CIA,
508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg Dep Justice (DOJ), 705 F.2d
1344, 1351 (D.C. Cir. 1983)). addition, the agency must show that the withheld redacted
documents are not required disclosed under 552(a) are exempt from disclosure under
552(b). Prison Legal News Samuels, 787 F.3d 1142, 1146 (D.C. Cir. 2015). this case,
NARA meets both those requirements because has conducted reasonable search for drafts the proposed indictment and because the drafts has located are protected from disclosure
FOIA Exemption and Fed. Crim. 6(e) and, separately, FOIA Exemptions 7(C) and
NARA therefore entitled summary judgment.
NARA HAS CONDUCTED REASONABLE SEARCH FOR DRAFTS THE
PROPOSED INDICTMENT.
The duty agency under FOIA limited conduct[ing] search reasonably
calculated uncover all relevant documents. Kowalczyk DOJ, F.3d 386, 389 (D.C. Cir.
1996) (quoting Truitt Dep State, 897 F.2d 540, 542 (D.C. Cir. 1990)). [A]utomated
searches consisting electronic key-word searches are permissible. Freedom Watch NSA,
783 F.3d 1340, 1343, 1345 (D.C. Cir. 2015). The agency not required speculate about
potential leads [or] look beyond the four corners the request for leads the location
responsive documents. Kowalczyk, F.3d 389. Neither the agency required subject
itself undue burden searching for responsive records. Valencia-Lucena Coast Guard,
180 F.3d 321, 327 (D.C. Cir. 1999). The adequacy search does not depend whether
there might any further documents. Kowalczyk, F.3d 388.
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page this case, plaintiff submitted FOIA request NARA for [a]ll versions
indictments Hillary Rodham Clinton, including those contained box 2250 and box
2256 the Hickman Ewing Attorney Files the records Starr. Murphy Decl.
NARA responded plaintiff request examin[ing] the folders from Hickman Ewing
attorney files which the request referred and drawing from those folders the drafts the
proposed indictment that the folders contained. Id. 20-21. try find other drafts the
proposed indictment, NARA searched the index the records Mr. Starr and his successors for
any other folders that might contain Indictment and Hillary Rodham Clinton Hillary
Clinton HRC but did not locate any other responsive folders. Id. 21. Plaintiff has
been given copy the above index, id. n.7, but does not allege its complaint that
NARA ought have searched any additional folders. NARA had obligation search the
records Mr. Starr and his successors document-by-document basis because the above
records fill approximately 3149 cubic feet space NARA, id. 19, and because documentby-document search the above records would have subjected NARA undue burden. See
Valencia-Lucena, 180 F.3d 327. NARA therefore conducted search reasonably calculated uncover all [drafts the proposed indictment], see Kowalczyk, F.3d 389 (quoting
Truitt, 897 F.2d 542), and therefore conducted search for the drafts that meets the
requirements FOIA.
II.
THE DRAFTS THE PROPOSED INDICTMENT ARE PROTECTED FROM
DISCLOSURE FOIA EXEMPTION AND FED. CRIM. 6(e) BECAUSE
DISCLOSURE THE DRAFTS WOULD TEND REVEAL THE SECRET
WORKINGS THE GRAND JURY.
FOIA Exemption permits agency withhold records that are specifically
exempted from disclosure statute. Murphy Exec. Office for U.S. Att ys, 789 F.3d 204,
206 (D.C. Cir. 2015) (quoting U.S.C. 552(b)(3)). Exemption differs from other FOIA
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
exemptions that its applicability depends less the detailed factual contents specific
documents and depends instead the existence relevant statute and the inclusion
withheld material within the statute coverage. Morley, 508 F.3d 1126 (quoting Ass
Retired R.R. Workers R.R. Retirement Bd., 830 F.2d 331, 336 (D.C. Cir. 1987)).
[R]equests for documents related grand jury investigations implicate [Exemption 3],
because Rule 6(e) the Federal Rules Criminal Procedure prohibits government attorneys
and others from disclos[ing] matter occurring before the grand jury. Lopez DOJ, 393 F.3d
1345, 1349 (D.C. Cir. 2005) (quoting Rule 6(e)(2)(B)). Though part the federal criminal
rules, Rule 6(e) treated statute for purposes Exemption because the Congress has
enacted into positive law. Murphy, 789 F.3d 206. The grand jury secrecy that Rule 6(e)
protects encompasses not only the direct revelation grand jury transcripts but also the
disclosure information which would reveal the identities witnesses jurors, the substance testimony, the strategy direction the investigation, the deliberations questions the
jurors, and the like. Fund for Const. Gov Nat Archives Records Serv., 656 F.2d 856,
869 (D.C. Cir. 1981) (quoting SEC Dresser Indus., 628 F.2d 1368, 1382 (D.C. Cir. 1980) (en
banc)). For that reason, the relevant inquiry cases where records are withheld pursuant
Exemption and Rule 6(e) whether the disclosure the records would tend reveal some
secret aspect the grand jury investigation. Lopez, 393 F.3d 1349 (quoting Senate P.R. DOJ, 823 F.2d 574, 582 (D.C. Cir. 1987)). [T]he basis for invoking [E]xemption need only logical plausible. Murphy, 789 F.3d 211 (quoting Larson Dep State, 565 F.3d
857, 862 (D.C. Cir. 2009)). For that reason, Rule 6(e) properly invoked justification for
withholding under Exemption the disclosed material would tend reveal some secret
aspect the grand jury investigation, including the identities witnesses. Id. 209-10
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
(quoting Hodge FBI, 703 F.3d 575, 580 (D.C. Cir. 2013)). tendency need only make
result more likely. Id. this case, the drafts the proposed indictment Mrs. Clinton are housed NARA
boxes stating their face that their contents include material subject Rule 6(e) the Federal
Rules Criminal Procedure. Murphy Decl. 20. The material the boxes which Rule 6(e)
applies includes the drafts the proposed indictment because the drafts are directly related
the Independent Counsel consideration presenting indictment grand jury. Id. 25.
Collectively, the drafts reflect[] names and identifying information individuals subpoenaed intended subpoenaed testify before the grand jury, well information identifying
specific records subpoenaed during the grand jury process. Id. addition, the drafts reflect
and quote grand jury testimony, and reveal the inner workings and direction the grand jury.
Id. The disclosure the drafts would therefore violate the secrecy the grand jury
proceedings contravention Rule 6(e) disclosing the inner workings the federal grand
jury tasked with considering these matters. Id. Boehm FBI, 948 Supp. (D.D.C. 2013), the withholding draft grand
jury indictment was held permissible under Exemption and Rule 6(e) because the disclosure the draft would tend reveal the secret workings the grand jury. 948 Supp. 27.
The same rationale applies with equal force the drafts the proposed indictment issue here.
The drafts are therefore protected from disclosure Exemption and Rule 6(e).
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
III.
THE DRAFTS THE PROPOSED INDICTMENT ARE PROTECTED FROM
DISCLOSURE FOIA EXEMPTIONS 7(C) AND BECAUSE THE DRAFTS
INVOLVE SIGNIFICANT PRIVACY INTEREST THAT NOT
OUTWEIGHED ANY PUBLIC INTEREST DISCLOSURE THAT
PLAINTIFF HAS ARTICULATED.
THE DRAFTS THE PROPOSED INDICTMENT ARE PROTECTED FROM
DISCLOSURE EXEMPTION 7(C).
Exemption 7(C) authorizes the Government withhold law enforcement records that
could reasonably expected constitute unwarranted invasion personal privacy.
Blackwell FBI, 646 F.3d 37, (D.C. Cir. 2011) (quoting U.S.C. 552(b)(7)(C)). Two
questions must answered cases where Exemption 7(C) invoked basis for
withholding. See NARA Favish, 541 U.S. 147, 164 (2004). The first whether the withheld
records information were compiled for law enforcement purposes that phrase used
Exemption 7(C). Id. The second whether disclosure the withheld records information
could reasonably expected constitute unwarranted invasion personal privacy. Id. this case, the drafts the proposed indictment Mrs. Clinton are protected from disclosure Exemption 7(C) because the drafts were compiled for law enforcement purposes and because
their disclosure can reasonably expected constitute unwarranted invasion personal
privacy.
THE DRAFTS THE PROPOSED INDICTMENT WERE COMPILED FOR LAW
ENFORCEMENT PURPOSES. show that [records] were compiled for law enforcement purposes, [an agency] need
only establish rational nexus between [an] investigation and one the agency law
enforcement duties and connection between individual incident and possible security
risk violation federal law. Blackwell, 646 F.3d (quoting Campbell DOJ, 164 F.3d
20, (D.C. Cir. 1998)). Records generated the course investigating and prosecuting [an
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
individual] [criminal] charges are records that meet this standard. Id. this case, the drafts the proposed indictment Mrs. Clinton were compiled for criminal law enforcement
purposes during the course the Independent Counsel performance [his] statutorilyimposed law enforcement mission: investigate and, appropriate, prosecute certain highranking Government officials for violation federal criminal laws. Murphy Decl. 27. For
that reason, the drafts meet the threshold requirement Exemption 7(C).
DISCLOSURE THE DRAFTS THE PROPOSED INDICTMENT CAN
REASONABLY EXPECTED CONSTITUTE UNWARRANTED INVASION PERSONAL PRIVACY. claim that records information may withheld under Exemption 7(C) requires the
court determine threshold matter whether any person has personal privacy interest
avoiding disclosure the records information which the claim applies. See Favish, 541
U.S. 165. such interest found exist, the court must then determine whether the
disclosure the records information could reasonably expected constitute
unwarranted invasion the [person personal privacy. Id. 171. making that
determination, [t]he term unwarranted requires [the court] balance the [person privacy
interest against the public interest disclosure. Id. this case, Mrs. Clinton has significant personal privacy interest avoiding
disclosure the drafts the proposed indictment. Because that interest not overcome any
public interest disclosure that plaintiff has articulated, the drafts are protected from disclosure Exemption 7(C).
Mrs. Clinton Has Significant Personal Privacy Interest
Avoiding Disclosure the Drafts the Proposed Indictment.
[I]ndividuals have strong interest not being associated unwarrantedly with alleged
criminal activity, Stern FBI, 737 F.2d 84, 91-92 (D.C. Cir. 1984), and thus have obvious
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
privacy interest cognizable under Exemption 7(C) keeping secret the fact that they were
subjects law enforcement investigation. Citizens for Resp. Ethics Wash. (CREW)
DOJ, 746 F.3d 1082, 1091 (D.C. Cir. 2014) (quoting Nation Mag. Customs Serv., F.3d 885,
894 (D.C. Cir. 1995)). The above interest particularly great the case individuals who
have been investigated but never publicly charged all. ACLU DOJ, 655 F.3d (D.C.
Cir. 2011). That interest not vitiated cases where the individuals are public figures [or]
high level government corporate officials, Fund for Const. Gov 656 F.2d 864, cases
where the investigations attracted national attention. Id. 865. the contrary, [t]he degree intrusion caused revelation the fact that individual has been investigated for
suspected criminal activity potentially augmented the fact that the individual well[-]
known figure and the investigation one which attracts much national attention because
[t]he disclosure that information would produce the unwarranted result placing the
[individual] the position having defend [his her] conduct the public forum outside the procedural protections normally afforded the accused criminal proceedings. Id. this case, the drafts the proposed indictment Mrs. Clinton are drafts
indictment that was never issued. Murphy Decl. 34. less than anyone else, Mrs. Clinton
has strong interest not being associated unwarrantedly with alleged criminal activity. See
Stern, 737 F.2d 91-92. That interest persists even though the existence the drafts publicly
known because the content the drafts has not been disclosed. Mrs. Clinton thus has
significant personal privacy interest avoiding disclosure the drafts.
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
The Interest Mrs. Clinton Avoiding Disclosure the
Drafts Not Overcome Any Public Interest Disclosure
that Plaintiff Has Articulated.
Where the privacy concerns addressed Exemption 7(C) are present, the exemption
requires the person requesting the information establish sufficient reason for the disclosure.
Favish, 541 U.S. 172. First, the citizen must show that the public interest sought
advanced significant one, interest more specific than having the information for its own
sake. Id. Second, the citizen must show the information likely advance that interest. Id. this case, plaintiff has given two reasons why the drafts the proposed indictment
should disclosed. Neither those reasons articulates public interest disclosure the
drafts that overcomes the personal privacy interest Mrs. Clinton avoiding their disclosure.
First, plaintiff contends that the justification most likely satisfy Exemption 7(C)
public interest requirement that the information necessary show that the investigative
agency other responsible officials acted negligently otherwise improperly the
performance their duties. Murphy Decl. Allegations government misconduct are
easy allege, however, and hard disprove. Favish, 541 U.S. 175 (quoting
Crawford-El Britton, 523 U.S. 574, 585 (1998)). [A] presumption legitimacy thus
accorded the Government official conduct. Id. 174. For that reason, FOIA requester
must establish more than bare suspicion order obtain disclosure any case which
privacy interest [is] protected Exemption 7(C) and the public interest being asserted
show that the responsible officials acted negligently otherwise improperly the performance their duties. Id. Because this standard requires the requester produce evidence that would
warrant belief reasonable person that the alleged Government impropriety might have
occurred, id., the public interest [in disclosure] insubstantial any case which
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
governmental misconduct alleged the justification for disclosure unless the requester
puts forward compelling evidence that the agency engaged illegal activity and shows that
the information necessary order confirm refute that evidence. Computer
Professionals for Soc. Resp. Secret Serv., F.3d 897, 905 (D.C. Cir. 1996) (quoting Davis
DOJ, 968 F.2d 1276, 1282 (D.C. Cir. 1992)). this case, plaintiff does not allege that Mr. Starr any member his staff acted
negligently otherwise improperly the performance [his her] duties. See Favish, 541
U.S. 174. Those duties, noted above, were completed more than decade ago. Much less
does plaintiff produce evidence that would warrant belief reasonable person that any
such allegation would have any merit. See id. Still less does plaintiff produce any evidence that
disclosure the drafts the proposed indictment would likely provide any information
substantiating any such allegation. For those reasons, plaintiff cannot rely any allegation
official impropriety overcome the personal privacy interest avoiding disclosure the drafts
that Mrs. Clinton possesses.
Second, plaintiff alleges that Mrs. Clinton highly public figure who has exercised
vast political power throughout her career and that, accordingly, [t]he public interest records
concerning possible unlawful activity her part far outweighs the privacy interest
[Exemption 7(C)]. Murphy Decl. This allegation unpersuasive because the only
relevant interest the FOIA balancing analysis [is] the extent which disclosure the
information sought would she[d] light agency performance its statutory duties
otherwise let citizens know what their government to. Dep Def. Fed. Labor Rel.
Auth., 510 U.S. 487, 497 (1994) (quoting Reporters Comm., 489 U.S. 773). this case, any
information contained the drafts the proposed indictment information about Mrs. Clinton
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page other individuals, not information that would she[d] light agency performance its
statutory duties otherwise let citizens know what their government to. See id. addition, [t]he presumption innocence stands one the most fundamental
principles our system criminal justice: defendants are considered innocent unless and until
the prosecution proves their guilt beyond reasonable doubt. ACLU DOJ, 750 F.3d 927, 933
(D.C. Cir. 2014). view that presumption, individuals who have been charged with but
never convicted crime have fundamental interest preventing the repeated
disclosure the fact their involvement the criminal process. Id. 935. Information
about individual involvement the criminal process thus protected from disclosure
Exemption 7(C) because disclosure that involvement could reasonably expected
constitute unwarranted invasion personal privacy. Id. this case, Mrs. Clinton was never indicted, Murphy Decl. 34, otherwise charged
with crime. Id. 35. She thus has even stronger interest avoiding disclosure the drafts the proposed indictment than person who has been indicted but acquitted person against
whom charges were brought but later dropped. Her interest avoiding disclosure the drafts
not diminished the fact that she former public official who running for President. The
drafts the proposed indictment are therefore protected from disclosure Exemption 7(C).
THE DRAFTS THE PROPOSED INDICTMENT ARE PROTECTED FROM
DISCLOSURE EXEMPTION
Exemption shields from disclosure personnel and medical files and similar files the
disclosure which would constitute clearly unwarranted invasion personal privacy.
Prison Legal News, 787 F.3d 1146 (quoting U.S.C. 552(b)(6)). Exemption applies
detailed Government records individual which can identified applying that
individual. Id. 1147 (quoting Judicial Watch DOJ, 365 F.3d 1108, 1124 (D.C. Cir. 2004).
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
Exemption thus covers not just files, but also bits personal information, such names and
addresses, the release which would create palpable threat privacy. Id. (quoting Judicial
Watch FDA, 449 F.3d 141, 152 (D.C. Cir. 2006)). the case when records are withheld pursuant Exemption 7(C), the withholding
records pursuant Exemption requires the court balance the privacy interests that would compromised disclosure against the public interest release the requested
information. Beck DOJ, 997 F.2d 1489, 1491 (D.C. Cir. 1993) (quoting Davis, 968 F.2d
1281). The protection available under the two exemptions not the same, however. Id.
Noting the use the adverb clearly Exemption and its requirement that
disclosure constitute actual rather than likely invasion privacy, the
Supreme Court has held that the standard for evaluating threatened invasion
privacy interests somewhat broader under Exemption 7(C) than under
Exemption
Id. (quoting Reporters Comm., 489 U.S. 756).
For the reasons set forth Point III(A)(1), supra, the drafts the proposed indictment
Mrs. Clinton were compiled for law enforcement purposes and are therefore protected from
disclosure Exemption 7(C). Even assuming, arguendo, that the drafts were compiled for
different purpose, they are detailed Government records [Mrs. Clinton] which can
identified applying [Mrs. Clinton]. See Prison Legal News, 787 F.3d 1147 (quoting
Judicial Watch, 365 F.3d 1124). For the reasons set forth Point III(A)(2)(b), supra, the
interest Mrs. Clinton avoiding disclosure the drafts not overcome any public
interest disclosure that plaintiff has articulated. For that reason, the drafts are protected from
disclosure much Exemption they are Exemption 7(C).
CONCLUSION
For the foregoing reasons, NARA motion for summary judgment should granted.
Case 1:15-cv-01740-RBW Document 10-1 Filed 02/02/16 Page
Respectfully submitted,
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
CHANNING PHILIPS
United States Attorney
ELIZABETH SHAPIRO
Deputy Director
Dated: February 2016 David Glass
DAVID GLASS, Bar 544549
Senior Trial Counsel
Department Justice, Civil Division Massachusetts Ave., N.W., Room 7200
Washington, D.C. 20530-0001
Tel: (202) 514-4469/Fax: (202) 616-847
E-mail: david.glass@usdoj.gov
Case 1:15-cv-01740-RBW Document 10-4 Filed 02/02/16 Page
UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
_____
JUDICIAL WATCH, INC.
Plaintiff,
No. 1:15-cv-01740-RBW
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION,
Defendant.
_____
DEFENDFANT STATEMENT UNDER LCvR 7(h)(1)
Defendant, the National Archives and Records Administration (NARA), hereby states
pursuant LCvR 7(h)(1) that genuine issue exists the following material facts: NARA maintains custody the records the independent counsels who served
under Title the Ethics Government Act 1978. Decl. Martha Wagner Murphy 15. The records maintained NARA include the records Kenneth Starr and his
successors. Id. 18. Mr. Starr served independent counsel under Title from 1994 until 1999; his
successors served until 2004. Id. Included among the records Mr. Starr and his successors are drafts proposed
indictment Hillary Rodham Clinton. Id. 23. The records Mr. Starr and his successors fill approximately 3149 cubic feet space NARA. Id.. 19. index those records was prepared the second and last Mr. Starr
successors and her staff connection with the transfer the records NARA. Id.
Case 1:15-cv-01740-RBW Document 10-4 Filed 02/02/16 Page copy that index was provided plaintiff, Judicial Watch, NARA May
2015. Id. n.7. letter dated March 2015, plaintiff submitted request NARA under the
Freedom Information Act (FOIA), U.S.C. 552, for the following records:
All versions indictments against Hillary Rodham Clinton, including, but not
limited to, Versions and box 2250 the Hickman Ewing Attorney Files,
the HRC/__Draft Indictment box 2256 the Hickman Ewing Attorney Files, well any all versions written Deputy Independent Counsel Hickman
Ewing, Jr. prior September 1996.
Id. Hickman Ewing was lawyer who worked Kenneth Starr deputy Little Rock.
Id. n.2.
10. Plaintiff said its request that [t]he records question are located the material
submitted [NARA] the Office Independent Counsel Re: Madison Guaranty Savings
Loan Association, also known the records Starr. Id.
11. NARA responded plaintiff request locating the two boxes the records
Mr. Starr and his successors which the request referred, Boxes 2250 and 2256. Id. 20-21.
12. Both boxes bear the name, Hickman Ewing Attorney Work Product both boxes
bear the heading HRC, the initials Hillary Rodham Clinton; and both boxes state their
face that their contents include material subject Rule 6(e) the Federal Rules Criminal
Procedure. Id. 20.
13. Box 2250 contains folder labeled Draft Indictment. Id.
14. Box 2256 contains folder labelled Hillary Rodham Clinton/Webster Hubbell
Draft Indictment. Id.
Case 1:15-cv-01740-RBW Document 10-4 Filed 02/02/16 Page
15. Multiple drafts the proposed indictment Mrs. Clinton were located NARA
within these folders. See id. Ex.
16. NARA also responded plaintiff FOIA request search[ing] the Box
Contents and Subject fields [of the index the records Mr. Starr and his successors]
identify any other folders that could contain Indictment and Hillary Rodham Clinton
Hillary Clinton HRC. Id. 21.
17. This search did not locate any other responsive folders. Id.
18. Each the drafts the proposed indictment that NARA located marked its
face draft; denominated draft accompanying cover memos; shows through its
incompleteness that draft. Id. 23.
19. Some the drafts contain marginalia annotations; some are identical duplicates
each other; some are non-identical duplicates; some are accompanied cover memos; some are
accompanied handwritten notes separate pieces paper; and some are accompanied
fax cover sheets. Id.
20. One the drafts consists merely scraps draft indictment. Id.
21. NARA withholding each the drafts full pursuant FOIA Exemption and
Rule 6(e), id. 25, and, separately, pursuant FOIA Exemptions 7(C) and Id. 35.
22. indictment Mrs. Clinton was ever issued, id. 34, and charges against her
were ever brought. Id. 35.
23. letter dated March 19, 2015, NARA advised plaintiff that had examined the
folders from Hickman Ewing attorney files that you requested and was withholding the
following records full pursuant FOIA Exemption 7(C): From box 2250 the folder Draft
Case 1:15-cv-01740-RBW Document 10-4 Filed 02/02/16 Page
Indictment (38 pages) From box 2256 the folder Hillary Rodham Clinton/Webster
Hubbell Draft [Indictment] (approximately 200 pages). Id.
24. The records which NARA referred its letter included records other than drafts the proposed indictment. See id. 22.
25. letter dated May 14, 2015, plaintiff appealed administratively the withholding
the above records. Id.
26. letter dated October 16, 2015, NARA advised plaintiff that its administrative
appeal had been placed into the processing queue. Id. 10.
27. October 20, 2015, plaintiff commenced this action. Id. 11.
28. Plaintiff commencement this action caused NARA close plaintiff
administrative appeal. Id. 12.
Respectfully submitted,
BENJAMIN MIZER
Principal Deputy Assistant Attorney General
CHANNING PHILIPS
United States Attorney
ELIZABETH SHAPIRO
Deputy Director
Dated: February 2016 David Glass
DAVID GLASS, Bar 544549
Senior Trial Counsel
Department Justice, Civil Division Massachusetts Ave., N.W., Room 7200
Washington, D.C. 20530-0001
Tel: (202) 514-4469/Fax: (202) 616-847
E-mail: david.glass@usdoj.gov
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
Judicial Watch Nat Archives Records
Admin.
No. 1:15-cv-01740-RBW
Def. Mot. Summ.
Ex.
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION,
Defendant.
Civ. No. 15-CV-1740 (RBW)
DECLARATION MARTHA WAGNER MURPHY Martha Wagner Murphy, hereby declare follows: currently serve Chief the Special Access and Freedom Information Act
(FOIA) Branch, Research Services, National Archives and Records Administration (NARA)
located College Park, Maryland. have held this position since 2009. Prior this position,
was Archivist the Special Access and FOIA Staff from 1995 2009, and have worked Archivist NARA since 1991. hold Masters U.S. History from Loyola University
Chicago, and Bachelor Arts History from Loyola College Baltimore. current position the Chief the Special Access and FOIA Staff,
supervise total of20 Archivists and one Government Information Specialist whose
responsibilities are focused providing access either through special access requests
through FOIA thousands pages archival records. Each Archivist staff holds
least Bachelors degree either History related subject matter, and over the course time
has become very familiar with the subject matters the collections which access sought.
-1-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
Due the nature official duties, familiar with the procedures followed NARA responding requests for material from its archival collection pursuant the
provisions the FOIA, U.S.c. 552. also specifically aware the handling plaintiff
Judicial Watchs March 2015 FOIA request NARA for [a]1I versions indictments
against Hillary Rodham Clinton, including, but not limited to, Versions 1,2, and box 2250 the Hickman Ewing Attorney Files, the HRCI_Draft Indictment box 2256 the
Hickman Ewing Attorney Files, well any all versions written Deputy Independent
Counsel Hickman Ewing, Jr. prior September 1996. accordance with Vaughn Rosen, 484 F.2d 820 (D.C. Cir. 1973), provide
this declaration support ofNARAs motion for summary judgment and provide
justifications for the withholding information full from the total 451 pages documents
identified-as responsive plaintiffs request and further described detailin Exhibit
attached hereto, pursuant FOIA Exemptions and 7(C), U.S.c. 552 (b)(3), (b)(6) and
(b)(7)(C).
The statements contained this declaration are based upon personal
knowledge, upon infoTIIlation provided offici1ticapacity, and upon conclusions and
determinations reached and made accordance therewith.
Procedural History Judicial Watchs FOIA Request letter dated March 2015, Judicial Watch submitted FOIA request
NARAfor:
All versions indictments against Hillary Rodham Clinton, including, but
not limited to, Versions 1,2, and box 2250 the Hickman Ewing
Attorney Files, the HRCI_Draft Indictment box 2256 the
The discrepancy the total number pages attributable the fact that the administrative stage
did not include identical duplicates our page count. Hickman Ewing was lawyer who worked Kenneth Starrs deputy Little Rock.
-2-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
Hickman Ewing Attorney Files, well any and all versions written
Deputy Independent Counsel Hickman Ewing, Jr. prior September
1996.
The records question are located the material submitted the
National Archives and Records Administration the Office
Independent Counsel Re: Madison Guaranty Savings Loan
Association, also known the records ofIC Starr.3
See Exhibit staff assigned the request ForA No. 46068. letter dated March 19,2015, informed Judicial Watch that [w]e have
examined the folders from Hickman Ewings attorney files that you requested. From box 2250
the folder Draft Indictment (38 pages) denied full under Exemption (b)(7)(C). From box
2256 the folder Hillary Rodham ClintonIWebster Hubbell Draft Indicment (sic)
(approximately 200 pages) denied full under Exemption (b)(7)(C). (See Exhibit C). Our
March 19, 2015 letter also provided Judicial Watch with administrative appeal rights. letter dated May 14, 2015, Judicial Watch appealed NARAs denial under
Exemption (b)(7)(C). relevant part, Judicial Watch asserted that:
[NARA response amounts more than barren assertion that the
responsive records are being withheld pursuant FOIA Exemption
(b)(7)(C) .it clearly has not met its burden under FOIA [to] ... provide
sufficient identifying information with respect each the records that
withheld enable Judicial Watch assess the propriety the claimed
exemption ... [and] has failed demonstrate that all non-exempt
information has been segregated ... [t] Supreme Court has suggested that
the justification most likely satisfy Exemption 7(C)s public interest
requirement that the information necessary show that the
investigative agency other responsible officials acted negligently
otherwise improperly the performance their duties ... Hillary Clinton highly public figure who has exercised political power throughout her
career. The public interest records concerning possible unlawful
activity her part far outweighs the privacy interest (b)(7)(C).
Plaintiff included fee waiver request its March 2015 letter, but NARA did not address the request
since withheld all documents full. Plaintiff does not raise the fee waiver issue its Complaint.
-3-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
10. letter dated October 16, 2015, NARA acknowledged receipt the appeal,
apologized for the delay the acknowledgment, advised Judicial Watch that the request had
been assigned FOIA Appeal No. NGCI5-071A, and provided information how Judicial
Watch might obtain update the status the appeal. See Exhibit
11. October 22,2015, plaintiff filed the instant lawsuit.
12. accordance with C.F.R 1250.74(a)(2), letter dated December 4,2015,
NARA advised Judicial Watch had administratively closed the appeal due the filing the
lawsuit. See Exhibit
National Archives and Records Administration and its Holdings
13.
The National Archives was established 1934 President Franklin Roosevelt preserve and care for the records the U.S. Govermnent, but its major holdings date back
1775. They capture the sweep the past: slave ship manifests and the Emancipation
Proclamation; captured German records and the Japanese surrender documents from World War
II; journals polar expeditions and photographs Dust Bowl farmers; Indian treaties making
transitory promises; and richly bound document bearing the bold signature Bonaparte the
Louisiana Purchase Treaty that doubled the territory the young republic.
14. 1985, the National Archives became independent executive agency, and
now has over facilities nationwide including field archives, Federal Records Centers,
Presidential Libraries, the Federal Register, and the National Historical Publications and Records
Commission. NARA keeps only those Federal records that are judged have continuing value about two five percent those generated any given year. now, they add
formidable number, diverse form well content. There are approximately billion
pages textual records; million maps, charts, and architectural and engineering drawings;
-4-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
million still photographs and graphics; million aerial photographs; 300,000 reels motion
picture film; 400,000 video and sound recordings; and 133 terabytes electronic data. All
these materials are preserved because they are important the workings Government, have
long-term research worth, provide information value citizens.
15.
Among its many holdings, NARA maintains custody the records
independent counsels who have completed their investigations. Title the Ethics
Govermnent Act of1978, Pub. No. 97-521, Stat. 1867, allow[ed] for the appointment independent counsel investigate and, appropriate, prosecute certain high-ranking
Government officials for violation federal criminal laws. Enacted originally for period
five years, the statutory authority was renewed several times thereafter, ultimately terminating
1999.
16. independent counsel was required Title transfer the Archivist
the United States all records which hard] been created received the independent counsels
office upon termination that office. U.S.C. 594(k)(l). Access records transferred
the Archivist under Title was governed [FOIA], except the case certain
records provided independent counsel committee Congress. [d. 594(k)(3)(A).
17.
Before transferring its records the Archivist, independent counsel was
required Title clearly identify which the records was subject Rule 6(e) the
Federal Rules Criminal Procedure grand jury materials. S.C. 594(k)(1). Rule
6(e) provides, pertinent part, that the parties and witnesses grand jury proceeding may not
disclose matter occurring before the grand jury. See Rule 6(e)(2)(B
See http://www.archives.gov/publications/general-info-Ieafletsll-about-archives.html. See
http://www.archives.gov/research/investigations/special-prosecutors-illdept-counsels.html.
-5-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
Records Independent Counsel Kenneth Starr
18. August 1994, Kenneth Starr was named the independent counsel lead the
investigation into the so-called Whitewater Affair. 1999, Independent Counsel (IC) Starr
resigned. was replaced Robert Ray who resigned March 2002. The Whitewater
investigation was then left for Rays deputy wrap up. The office officially ended operations
2004, and the records were transferred NARA under Title connection with the cessation operations.
19. result, the records FonnerIC Starr and his successors are now part
NARAs holdings (IC Starr records). The Starr records, which consist approximately
3149 cubic feet records, have been NARAs custody since March 2004. finding aid
reference the Starr records has been available the public, redacted fonn, since
approximately June 2015 (Index,,).7 The Index consists two manifests Little Rock Office
File Manifest and District Columbia Office File Manifest that together list over 3300
boxes material, with specific box numbers, well many thousands folder titles noted
the Box Contents field.
Search Conducted Response Judicial Watchs FOIA Request
20.
Both boxes identified plaintiff its request, Boxes 2250 and 2256, have the
same name, Hickman Ewing Attorney Work Product. The boxes also have the same subject
heading, HRC [Hillary Rodham Clinton]. Each box, its face, has note indicating that the
contents include material subject Rule 6(e) the Federal Rules Criminal Procedure. CNN.comlInside Politics, Whitewater Independent Counsel Robert Ray Resigns (Mar. 12,2002),
http://edition.cnn.com/2002/ALLPOLlTICS/03/12/indy.counseLresigns/index.html (accessed Nov. 16,
2015); UPI News Track, Whitewater Counsel Closes Doors (Mar. 23, 2004). letter dated June 11,2014, plaintiff Judicial Watch filed FOIA request with NARA seeking access the Index. NARA released the Index Judicial Watch May 2015.
-6-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
Within Box 2250 folder labeled Draft Indictment, and within Box 2256 folder labeled
Hillary Rodham ClintonlWebster Hubbell Draft Indictment.
21. staff also searched the Box Contents and Subject fields the Index
identify any other folders that might contain Indictment and Hillary Rodham Clinton
Hillary Clinton HRC. Other than the folder box 2256, did not locate any other
responsive folders.
22. the time NARA responded the FOIA request, all the material the Draft
Indictment folder Box 2250, and the material the Hillary Rodham Clinton/Webster
Hubell Draft Indictment folder Box 2256, were considered responsive. For the purposes
the instant lawsuit, and accordance with the specific wording the FOIA request for [a]l1
versions indictments against Hillary Rodham Clinton, only draft indictments are considered
responsIve.
23.
Each the responsive documents draft and either clearly marked such the draft accompanying cover memo, obviously incomplete draft. Some
these drafts contain marginalia amlOtations, Doc. Nos. 6,10,15,17,19; some are identical
duplicates each other, Doc. Nos. 4,7 13; some are non-identical duplicates, Doc.
Nos. some are accompanied cover memos, Doc. Nos. 4,5,6, 10, 16; some are
accompanied handwritten notes separate pieces paper, Doc. No. 14; and some are
accompanied cover fax sheets, Doc. Nos. One draft consists merely of[ s]craps
draft indictment, Doc. No. 11. The responsive documentsaie described further detail the
attached index. See Exhibit
-7-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
FOIAExemptions Applicable the Responsive Documents
Exemption
24.
FOIA Exemption U.S.C. 552(b)(3), exempts from disclosure information
which is:
specifically exempted from disclosure statute ... provided that such
statute (A) requires that the matters withheld from the public such
manner leave discretion the issue, (B) establishes particular
criteria for withholding refers particular types matters
withheld.
One commonly recognized (b)(3) statute Rule 6(e) the Federal Rules Criminal Procedure,
which prohibits the disclosure matters occurring before Grand Jury. office routinely
screens all responsive records for (b)(3) matters, including records that would reveal the
workings grand jury
25.
All the responsive documents are directly related the Independent Counsels
consideration presenting indictment grand jury. The material collectively reflects
names and identifying information individuals subpoenaed intended subpoenaed testify before the grand jury, well information identifying specific records subpoenaed
during the grand jury process. They reflect and quote grand jury testimony, and reveal the inner
workings and direction the grand jury. Disclosure would violate the secrecy the grand jury
proceedings disclosing the inner workings the federal grand jury that was tasked with
considering these matters. Similarly, the consideration possible witnesses before the Grand
Jury, and internal memoranda and notes about the strategy and considerations regarding possible
indictments reveal the direction the grand jury investigation. Accordingly, all the documents
have been properly withheld full pursuant Exemption (b)(3). See Exhibit
-8-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
Exemption Threshold
26.
Exemption the FOIA protects from mandatory disclosure records
information compiled for law enforcement purposes, but only the extent that disclosure could
reasonably expected cause one the harms enumerated the subparts the exemption.
See U.S.C. 552(b)(7). this case, the harm that could reasonably expected result from
disclosure concerns invasion personal privacy.
27.
Before agency can invoke any the harms enumerated Exemption
must first demonstrate that the records information issue were compiled for law
enforcement purposes. The records issue this case were compiled for criminal law
enforcement purposes during the course the Independent Counsels performance its
statutorily-imposed law enforcement mission: investigate and, appropriate, prosecute certain
high-ranking Government officials for violation offederal criminal laws. Given the function Independent Counsel and the nature the particular documents issue, there little doubt
that these materials were compiled for law enforcement purPose. Since the records clearly
meet the Exemption threshold, the remaining inquiry for Exemption purposes whether
their disclosure would invade personal privacy.
Exemptions (b)(6) and (b)(7)(q
Clearlv Unwarranted and Unwarranted Invasion ofPersonal Privacy
28. U.S.C. 552 (b)(6) exempts from disclosure:
personnel and medical files and similar files when the disclosure
such information would constitute clearly unwarranted invasion personal privacy.
29. U.S.C. 552 (b)(7)(C) exempts from disclosure:
records information compiled for law enforcement purposes, but
only the extent that the production such law enforcement
records information ... could reasonably expected
constitute unwarranted invasion personal privacy.
-9-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
30.
Exemption the FOIA protects from mandatory disclosure personnel and
medical files records when disclosure would constitute clearly unwarranted invasion
personal privacy. For purposes this case, NARA asserting Exemption conjunction with
Exemption 7(C) protect the responsive documents issue here. Because the analysis and
balancing required exemptions and sufficiently similar warrant consolidated
discussion, both exemptions are discussed directly below.
31.
The balancing test for Exemption whether disclosure would constitute
clearly unwarranted invasion personal privacy, whereas the test for Exemption 7(C) the
lower standard whether disclosure could reasonably expected constitute unwarranted
invasion personal privacy. Nevertheless, under the analysis both exemptions, the privacy
interests are balanced against the publics interest disclosure under the analysis both
exemptions.
32.
When withholding information pursuant these privacy exemptions, agency required balance the privacy interests the individuals mentioned these records against
any public interest disClosure. asserting these exemptidtls, iriformation examined
determine the nature and strength the privacy interest every individual whose names and/or
identifYing information appears the documents issue. making this analysis, the public
interest disclosure this information determined assessing whether the information
question would shed light the Independent Counsels statutorily-imposed law enforcement
mission investigate and, appropriate, prosecute individuals for violation federal criminal
laws. each instance where information was withheld, was determined that individual
privacy rights outweighed the public interest. The only recognized public interest that which
sheds light the operations and activities the Independent Counsel. asserting Exemptions
-10-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page and 7(C), have determined that the individuals privacy interests, and particular, the
interests Hillary Rodham Clinton, are not outweighed any public interest disclosure.
33.
With respect the potential invasion personal privacy, all individuals are
entitled presumption innocence. When, the context criminal investigation,
Independent Counsel determines not bring indictment, the subject the investigation has
significant privacy interest not being associated with any underlying criminal activity.
NARAs policy not release records from investigations ifthe records clearly identify people
who, although they may have been investigated, never faced criminal charges.
34. this case, all the responsive documents relate the Independent Counsels
consideration whether proceed with indictment Hillary Rodham Clinton well
other individuals. The documents reflect numerous drafts and internal discussions how
they might proceed; ultimately, however, indictment against Mrs. Clinton was never issued.
Despite the role that Mrs. Clinton occupied the First Lady during President Clintons
administration, Mrs. Clinton maintains strong privacy interest not having information about
her from the files the Independent Counsel disclosed. uncharged person Hillary
Rodham Clinton retains significant interest her personal privacy despite any status
public figure.
35. its administrative appeal, plaintiff argued that these privacy concerns are
overwhelmed the public interest such records, and that the public interest records
considering possible unlawful activity [Hillary Rodham Clintons] part far outweighs the
privacy interest (b)(7)(C). While there may scintilla public interest these
documents since Mrs. Clinton presently Democratic presidential candidate, that fact alone
not cognizable public interest under FOIA, disclosure the draft indictments would not
-11-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
shed light what the government to. Moreover, the fact remains that the responsive
records were compiled for law enforcement purposes and charges were brought. The release the responsive records could reasonably expected constitute clearly unwarranted and unwarranted invasion personal privacy, while revealing little nothing about the workings the government. result, FOIA Exemptions and 7(C) are fully applicable the
documents issue here.
Pursuant U.S.C. 1746, declare under penalty perjury that the foregoing true
and correct, and that Exhibits through are true and correct copies.
Executed this day February, 2016.
~({IJ{L~~ L~
MARTHA WAGNtR MURPHY
Chief, Special Access and FOIA Branch
Research Services Division
National Archives and Records Administration
College Park, Maryland
-12-
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION,
Defendant.
Civ. No. 15-CV-1740 (RBW)
EXHIBIT 449, Records ofIndependent Counsel Kenneth StarrIRobert Ray/Julie Thomas
Description Document
1-4
One-pagememorandum with attached draft
indictment; (Four identical copies)
One-page memorandum and one-page cover fax
sheet with attached draft indictment)
One-page memorandum and one-page cover fax
sheet with attached draft indictment (with
marginalia)
Draft indictment; (Three identical copies)
Total
Applicable FOIA
Exemptions
Withheld Full/
Released Part!
Released Full (23 pages
each) pages
(b)(3), (b)(6), (b)(7)(C)
Withheld Full
(b)(3), (b)(6), (b)(7)(C)
Withheld Full pages
(b)(3), (b)(6), (b)(7)(C)
Withheld Full pages (IS
pages each) pages
(b)(3), (b)(6), (b)(7)(C)
Withheld Full
(b)(3), (b)(6), (b)(7)(C)
Withheld Full pages
(b)(3), (b)(6), (b)(7)(C)
Withheld Full pages
pages each) pages
(b)(3), (b)(6), (b)(7)(C)
Withheld Full
(b)(3), (b)(6), (b)(7)(C)
Withheld Full pages
(b)(3), (b)(6), (b)(7)(C)
Withheld Full pages
(b)(3), (b)(6), (b)(7)(C)
Withheld Full
One-page memorandum with attached draft
indictment
Draft indictment; contains some annotations pages
(b)(3), (b)(6), (b)(7)(C)
Withheld Full
Draft indictment
Draft indictment; contains some annotations pages pages
(b)(3), (b)(6), (b)(7)(C)
(b)(3), (b)(6), (b)(7)(C)
Withheld Full
Withheld Full
Draft indictment pages
(b)(3), (b)(6), (b)(7)(C)
Withheld Full
7-9
12-13
One-page memorandum with attached draft
indictment; contains some annotations
indictment and handwritten notes the
back last page draft indictment
Scraps draft indictment with caption
Draft indictment without caption, listing
overt acts. (Two identical copies)
Draft indictment with two pages
handwritten notes
Draft indictment; contains some annotations
---
TOTAL 451 pages
Exhibit Declaration Martha Wagner MurPhy,
Judicial Watch, Inc. NARA, Civ. No. IS-CV-1740 (RBW)
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
Document
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT COLUMBIA
JUDICIAL WATCH, INC.,
Plaintiff,
NATIONAL ARCHIVES AND
RECORDS ADMINISTRATION,
Defendant.
Civ. No. 15-CV-1740 (RBW)
EXHIBITB
Case 1:15-cv-01740-RBW Document 10-3 Filed 02/02/16 Page
Judicial
Watcli
Becaus.e one above the law!
March 2015
VIA CERTIFIED MAIL. EM4Ilt.
National Archives and Records AdmU:listr;ition
Special Access and FOIAStaff (NWCTF)
8601 Adelphi Road, Room 63:;0
College Park, 20740
Re:. Freedom ofInforniatioJl Act Request
Dear Freedom oflnfoniliii:ion(}ffice~
Pursuant the F:reedomoffufOriilatioll Act(FOIA), U.S.C. 552, Judicial
Watch, Inc. hereby reql. $1:S tlmt the National Archives and Records Administration
produce the followingWithh~twemy (20)l:.msi).wss days:.
All versions indictments againstJiillaiYRodham Clinton, including, but
not limited io, VeJ;!!ions 1,2;and3 box 2250 oftheBickman Ewing
Attorney FileS; the ~HRC/_ ln~i t!n~nt box 2256 the Hickman
Ewing Attorney Files, w~n any and Ji:llversions written Deputy
Independent Couusel Hickmall Ewing, Jr. prior September 1996.
Tbe records inquestion are located the material submitted the National
Archives and Records Administration the Office Independent Counsel Re:
Madison Guaranty Savings Loan Association, also known the records onc Starr. call your attention President dbamas January 21,2009 Memorandum
concerning the Freedom 1IlforrnationAct, which states:
All agencies should adopt presumption favor
disclosure, order renew their commitrnent the
principles embodied FOlA ... The presumption
disclosure should applied all decisiQ);!S involving
425 Third St., SW, Suite 800, Washington, 20024