JUDICIAL WATCH, INC., Appellant v. NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, Appellee
No. 16-5366
United States Court of Appeals, District of Columbia Circuit.
Argued September 22, 2017. Decided December 1, 2017
876 F.3d 346
Indeed, since it first established the index, the Commission has lamented that it did not have access to a reliable measure of industry-wide total cost-of-service data upon which to base its calculations. See Order 561-A, 59 Fed. Reg. at 40,246-47 (stating that “Form No. 6 does not contain the information necessary to compute a trended original cost (TOC) rate base or a starting rate base as allowed for in Order No. 154-B” and that “all agree that the measure of the capital cost component [using Form No. 6 data] of the cost of service is highly unsatisfactory“); Revision to Form No. 6, 77 Fed. Reg. 59,739, 59,741 P. 19 (Oct. 1, 2012) (recognizing that past Page 700 filings were unreliable and amending Page 700 instructions). Now that Page 700 makes that data available, and the Commission has concluded that the data is reliable, see 2015 Order, 80 Fed. Reg. at 81,745-46 PP. 10-12 & n.24, it was entirely reasonable for the agency to use it in the 2015 Order.
III. Conclusion
To reiterate, an “agency must show that there are good reasons for [new policies]. But it need not demonstrate to a court‘s satisfaction that the reasons for the new polic[ies] are better than the reasons for the old one[s]; it suffices that the new polic[ies are] permissible under the statute, that there are good reasons for [them], and that the agency believes [the disputed policies] to be better, which the conscious change of course adequately indicates.” Fox Television Stations, Inc., 556 U.S. at 515, 129 S.Ct. 1800. FERC easily satisfied this standard in this case. The Commission carefully addressed the issues, acknowledged its departure from prior decisions, provided extensive explanation for its technical and policy choices, considered the principal alternatives, and responded to Petitioner‘s arguments. Nothing more was required. We therefore deny the petition for review.
So ordered.
Paul J. Orfanedes, Washington, DC, argued the cause for appellant. With him on the briefs was Lauren M. Burke.
Nicolas Y. Riley, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief was Douglas N. Letter, Attorney, Washington, DC.
Before: ROGERS and TATEL, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
Judicial Watch filed a Freedom of Information Act (“FOIA“) request seeking disclosure of “[a]ll versions of indictments against Hillary Rodham Clinton” arising out of the Independent Counsel‘s investigation begun in 1994. Although a great deal of information has been released to the public in connection with the Independent Counsel‘s investigation, a draft indictment mentioned in a 1999 New York Times article and a book published in 2010 has not. Because a draft indictment impli
I.
In January 1994, the Attorney General appointed an Independent Counsel “to investigate ... whether any individuals or entities have committed a violation of any federal criminal or civil law relating in any way to President William Jefferson Clinton‘s or Mrs. Hillary Rodham Clinton‘s relationships with: (1) Madison Guaranty Savings & Loan Association; (2) Whitewater Development Corporation; or (3) Capital Management Services.”
There also have been public references to a draft indictment of Mrs. Clinton. Nearly two decades ago, the New York Times published an article that referred to a draft indictment prepared by Deputy Independent Counsel Hickman Ewing. Steve Barnes, Court Told of Draft Indictment That Included the First Lady, N.Y. Times, Mar. 19, 1999. Seven years ago, a book about the Independent Counsel‘s investigation also referred to a draft prepared by Deputy Ewing. Ken Gormley, The Death of American Virtue: Clinton v. Starr 478 (Broadway Books 2010). The draft indictment has not been publicly released. It is publicly known, however, that the Independent Counsel investigated whether Mrs. Clinton committed perjury, made false statements, or obstructed justice during the investigation and “concluded that there was insufficient evidence to prove beyond a reasonable doubt that Mrs. Clinton had committed any federal criminal offense.” Final Report at 411.
On March 9, 2015, Judicial Watch submitted a FOIA request to the National Archives as custodian for “[a]ll versions of indictments against Hillary Rodham Clinton.” See
The district court granted summary judgment to the National Archives, ruling the requested records were properly withheld pursuant to Exemptions 3, 6, and 7(C) and that the National Archives had made a proper segregability analysis and the documents could be withheld in their entirety. Judicial Watch, Inc. v. Nat‘l Archives & Recs. Admin., 214 F.Supp.3d 43 (D.D.C. 2016). Judicial Watch appeals, and our review is de novo. See Elec. Privacy Info. Ctr. v. U.S. Dep‘t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015).
II.
The FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for specific categories of material.” Milner v. Dep‘t of Navy, 562 U.S. 562, 564, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). The exemptions “must be narrowly construed,” id. at 565, 131 S.Ct. 1259 (internal quotation marks and citation omitted), and the burden is on the government to provide “reasonably specific” justifications indicating that documents “logically” or “plausibly” fall within the claimed exemption, Larson v. Dep‘t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (internal quotation marks and citations omitted). Exemption 7(C) covers “records or information compiled for law enforcement purposes” that “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”
The court has recognized that although public officials “may have a somewhat diminished privacy interest,” they “do not surrender all rights to personal privacy when they accept a public appointment.” Citizens for Responsibility & Ethics in Wash. v. U.S. Dep‘t of Justice (“CREW“), 746 F.3d 1082, 1092 (D.C. Cir. 2014) (internal citation and quotation omitted). Although the existence of the Independent Counsel‘s investigation of her is public knowledge, Mrs. Clinton, then, “retain[s] a distinct privacy interest in the contents of the investigative files.” Id. Indeed, Judicial Watch acknowledges that Mrs. Clinton has a privacy interest but maintains, in view of her official positions as First Lady, United States Senator, and the Secretary of State, that the release of the Independent Counsel‘s Final Report and evidentiary summary renders her “generic” privacy interests minimal. Applt‘s Br. 24-25. This position overlooks the fact that Mrs. Clinton‘s privacy interest is heightened in the context of a draft indictment.
“[W]here individuals have been investigated but not charged with a crime,” disclosure of material properly exempt under Exemption 7(C) “represents a severe intrusion on the privacy interests of the individual[] in question.” Fund for Constitutional Gov‘t, 656 F.2d at 866. The requested records concern a staff-pro
“The disclosure of th[e] [requested] information would produce the unwarranted result of placing [Mrs. Clinton] in the position of having to defend [her] conduct in the public forum outside of the procedural protections normally afforded the accused in criminal proceedings.” Fund for Constitutional Gov‘t, 656 F.2d at 865. Although she may not be entitled as a public figure to any more protection under Exemption 7(C) than the average person, the potential immediate harm to her would appear to be augmented simply because the Independent Counsel‘s investigation of President and Mrs. Clinton attracted great public attention. Indeed, at the time Judicial Watch filed its request she was contemplating running for President of the United States and declared her candidacy shortly thereafter. Not only would she be without the procedural protections afforded to a person accused of a crime, but the release after so many years also means the defunct Office of Independent Counsel would be unavailable to explain its decision not to seek an indictment against her. These circumstances threaten the presumption of innocence at the heart of the justice system. ACLU v. U.S. Dep‘t of Justice, 750 F.3d 927, 933 (D.C. Cir. 2014) (citing Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895)). As indicated during oral argument, it is difficult to imagine circumstances where a draft indictment could ever be disclosed without seriously infringing an individual‘s privacy interest. See, e.g., Oral Argument at 22:47-23:50. Having never been formally “accused of criminal conduct” by the Independent Counsel, Mrs. Clinton, no less than an individual who has been charged but not convicted, is “entitled to move on with [her] li[fe] without having the public reminded of [her] alleged but never proven transgressions.” ACLU, 750 F.3d at 933.
Consequently, Mrs. Clinton‘s significant privacy interest in the contents of the Independent Counsel‘s investigative files “should yield only where exceptional interests militate in favor of disclosure.” Fund for Constitutional Gov‘t, 656 F.2d at 866. Judicial Watch has identified no such interests. First, Judicial Watch maintains that disclosure would help the public learn more about the operations of the Office of Independent Counsel. There is doubtless a “weighty public interest” in evaluating government investigations of public officials. CREW, 746 F.3d at 1092. That interest is greatly reduced, however, precisely because of the voluminous information already in the public domain about the Independent Counsel‘s investigation of President and Mrs. Clinton. The political branches of the federal government have assessed the evidence and documented their proceedings and findings in publicly available reports. See Fund for Constitutional Gov‘t, 656 F.2d at 865. As noted, the Independent Counsel released a final report and a staff summary of the evidence has been released as well, and Committees of both Houses of Congress have released information about their investigations. In these circumstances, the incremental public interest in learning how the Independent Counsel carried out his investigation of Mrs. Clinton by disclosure of a draft indictment appears slight. Mere “general public curiosity” is not enough. Fund for Constitutional Gov‘t, 656 F.2d at 866.
Further, by providing a detailed description of the requested documents, identifying applicable exemptions, and explaining why they could not be released in redacted form, the National Archives properly withheld the documents in full. See Johnson v. Exec. Office for U.S. Attorneys, 310 F.3d 771, 776 (D.C. Cir. 2002);