949 F. Supp. 2d 205
D.D.C.2013Background
- Nichter petitions to unseal records associated with United States v. Liddy (D.D.C. 1972) to illuminate Watergate rationale and targets.
- DOJ objects to unsealing certain records: living individuals’ PSRs, illegally obtained wiretap contents, and grand jury information.
- On Nov. 2, 2012, the court granted in part Nichter’s request, unsealing non-objection materials and directing ex parte sealings to remain for others.
- NARA released approximately 950 pages in Nov. 2012; in Dec. 2012 the government submitted a surreply with proposed sealed materials.
- Court considers PSRs, wiretap materials, and grand jury materials in camera to determine disclosure; holds some materials may be unsealed with redactions.
- Court orders NARA to release four PSRs (Gonzalez, Martinez, Barker, Sturgis) with redactions for living individuals’ medical/psychological info; other PSRs released with redactions; certain living-person data redacted.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are PSRs containing living individuals' information disclosable? | Nichter: compelling public interest in historical record justifies disclosure. | Gov't: PSRs are presumptively confidential and contain sensitive living-person data. | Compelling need shown; release with redactions of living-person data. |
| May the court unseal illegally obtained wiretap contents? | Nichter: historical value supports disclosure if public interest justifies. | Gov't: Title III prohibits disseminating contents of illegal wiretaps; only names may be released. | Contents remain sealed; names of overheard individuals may be released. |
| Should grand jury information be released for historical purposes? | Nichter relies on Kutler special-circumstances exception for historical interest. | Gov't: Rule 6(e) secrecy applies; no broad historical access right. | Grand jury materials remain sealed; Craig/Kutler factors weigh against disclosure. |
| Should any other personal correspondence or health/family data be unsealed? | Nichter asserts public interest in historical clarity supports disclosure. | Gov't: protect privacy; limit disclosure to necessary portions. | Unseal with appropriate redactions; protect living individuals' privacy. |
Key Cases Cited
- In re Petition of Kutler, 800 F. Supp. 2d 42 (D.D.C. 2011) (special circumstances exception to 6(e) for historical materials)
- U.S. v. Huckaby, 43 F.3d 135 (5th Cir. 1995) (PSR disclosure considerations and confidentiality)
- United States v. Colwell, 304 F. App'x 885 (D.C. Cir. 2008) (compelling need balancing for third-party PSR disclosure)
- In re Grand Jury Subpoena, Judith Miller, 493 F.3d 152 (D.C. Cir. 2007) (grand jury secrecy and disclosure principles)
- In re Petition of Craig, 131 F.3d 99 (2d Cir. 1997) (Craig factors for grand jury disclosure balancing)
- Spitzer II, 577 F.3d 401 (2d Cir. 2009) (Title III vs. access to wiretap materials; separation of contents vs. existence)
- Spitzer I, 600 F. Supp. 2d 504 (S.D.N.Y. 2009) (Spitzer I distinguished from Spitzer II on wiretap access scope)
- United States v. Gomez, 323 F.3d 1305 (11th Cir. 2003) (PSRs and disclosure context in different circuits)