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Judicial Watch • JW v. State DOJ statement of interest 01363

JW v. State DOJ statement of interest 01363

JW v. State DOJ statement of interest 01363

Page 1: JW v. State DOJ statement of interest 01363


Number of Pages:5

Date Created:June 10, 2016

Date Uploaded to the Library:June 10, 2016

Tags:Hubbard, Hardy, agreements, Pagliano, access, statement, 01363, investigation, justice, Hillary Clinton, filed, plaintiff, document, FBI, records, DOJ, department, FOIA, states, united

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Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
Civil Action No. 13-CV-1363 (EGS)
The United States files this Statement Interest pursuant U.S.C. 517, regarding
nonparty deponent Bryan Pagliano Motion File Exhibits Parte and Under Seal. See ECF
No. 88.1
The United States respectfully submits there dispute before the Court that requires review the documents constituting Mr. Pagliano agreements with the United States.
party this case has requested that the Court take any action with respect Mr. Pagliano
professed intention assert the Fifth Amendment privilege against self-incrimination his
deposition. Rather, the motion that preceded the Court order requiring the filing Mr.
Pagliano agreements with the United States concerned only whether Plaintiff may create U.S.C. 517 authorizes [t]he Solicitor General, any officer the Department Justice attend the interests the United States suit pending court the United States.
The Department Justice already representing the Department State this case.
However, the Government has determined that because the interests that underlie this filing
relate FBI investigation, Statement Interest filed behalf the United States the
more appropriate procedural vehicle address the Court regarding this issue.
Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
audiovisual recording Mr. Pagliano deposition. See Nonparty Deponent Bryan Pagliano
Motion for Entry Protective Order filed June 2016 (ECF No. 85). the Court nonetheless determines that necessary for review the agreements,
the Court should review them parte and under seal. The Freedom Information Act FOIA authorizes courts examine documents camera and parte. See U.S.C.
552(a)(4)(B); Arieff U.S. Dep Navy, 712 F.2d 1462, 1469 (D.C. Cir. 1983) (citing U.S.C.
552(a)(4)(B)). Moreover, this statutory authorization for camera examination records
was merely confirmation (and perhaps encouragement the use of) power that the courts
already possessed. Arieff, 712 F.2d 1469; see also United States Hubbard, 650 F.2d 293,
316-17 (D.C. Cir. 1980) (the decision whether allow access judicial records left the
sound discretion the trial court, discretion exercised light the relevant facts and
circumstances the particular case While there presumption favor public access
judicial proceedings, the D.C. Circuit has set forth six factors that can act overcome the
(1) the need for public access the documents issue; (2) the extent previous public access the documents; (3) the fact that someone
has objected disclosure, and the identity that person; (4) the strength any property and privacy interests asserted; (5) the possibility
prejudice those opposing disclosure; and (6) the purposes for
which the documents were introduced during the judicial proceedings.
E.E.O.C. Nat Children Ctr., F.3d 1406, 1409 (D.C. Cir. 1996) (applying Hubbard).
Consideration these factors demonstrates that, should the Court find necessary review the
agreements, the agreements should remain parte and under seal.
The agreements which Mr. Pagliano refers relate ongoing law enforcement
investigation, and their contents have not been disclosed previously the public record.
Moreover, the parties the agreements Mr. Pagliano and the United States both object
Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
public disclosure their contents. Hubbard, 650 F.2d 320 the fact that objection access made third party weighs favor non-disclosure addition, the Government would prejudiced disclosure. The FBI has stated
publicly that received and working referral [from] Inspectors General connection
with former Secretary Clinton use private e-mail server. Oversight the Federal Bureau Investigation: Hearing Before the Comm. the Judiciary, 114th Cong. (2015)
(statement FBI Director James Comey). Other than its acknowledgment the referral from
the Inspectors General the Intelligence Community and the Department State, the FBI
cannot publicly disclose the specific focus, scope, potential targets any such investigation
without adversely affecting the investigation. See Declaration David Hardy Hardy
Decl. 15, ECF No. 9-1, Leopold U.S. Dep Justice, 15-cv-2117 (D.D.C.).
For this reason, the FBI has withheld from public release records regarding the
investigation that are the subject separate FOIA request. Id. 18. That request sought,
among other things, all records retrieved from any electronic equipment obtained from former
Secretary State Hillary Clinton for the investigation (which have not already been made
public), well correspondence between the FBI and the Department State regarding any
electronic equipment obtained. Id. 10. The FBI determined that releasing all but three the
records responsive that request could reasonably expected interfere with the
investigation. U.S.C. 552(b)(7)(A); Hardy Decl. 18-22.2
Similarly, releasing Mr.
Pagliano agreements with the United States could prematurely reveal the scope and focus
the pending investigation.
These three records are the correspondence filed this case ECF Nos. 37-1 37-3, the
release which did not implicate the concerns noted above. See Hardy Decl. n.4.
Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
Conversely, there demonstrated need for access the agreements connection
with this case. The parties are engaged limited discovery over the adequacy FOIA search.
The agreements are not the subject responsive the FOIA request issue this case, and
the agreements have not been requested discovery. Rather, the only possible relevance the
agreements deposition nonparty. See Seattle Times Co. Rhinehart, 467 U.S. 20, pretrial depositions and interrogatories are not public components civil trial the
Reporters Comm. for Freedom the Press, 773 F.2d 1325, 1335-37, 1340 (D.C. Cir. 1985)
(finding that there was common law right access prejudgment records civil cases);
Hubbard, 650 F.2d 315-22 (sealing documents seized during search non-party church,
which were introduced under seal only for the purpose showing that the search was unlawful,
and were not used the court ruling, should not have been lifted absent showing
substantial factor favoring public access, where previous access was shown, and church
objected unsealing). And, noted above, date the only dispute between Plaintiff and Mr.
Pagliano about whether Mr. Pagliano deposition should recorded video.
Therefore, this Court determines that has need review the agreements, the United
States respectfully requests that the Court exercise its inherent discretion receive the
agreements parte and under seal.
Case 1:13-cv-01363-EGS Document Filed 06/10/16 Page
Dated: June 10, 2016
Respectfully submitted,
Principal Deputy Assistant Attorney General
Assistant Director
/s/ Jennie Kneedler
Trial Attorney
United States Department Justice
Civil Division, Federal Programs Branch Massachusetts Ave., N.W.
Washington, D.C. 20001
Tel. (202) 305-8662
Fax (202) 616-8470
D.C. Bar 500261
Attorneys for the United States