United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 22, 2017 Decided December 1, 2017 

No. 16-5366 

JUDICIAL WATCH, INC., 

APPELLANT

v. 

NATIONAL ARCHIVES AND RECORDS ADMINISTRATION, 

APPELLEE

Appeal from the United States District Court 

for the District of Columbia 

(No. 1:15-cv-01740) 

Paul J. Orfanedes 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. 

Before: ROGERS and TATEL, Circuit Judges, and 

SILBERMAN, Senior Circuit Judge. 

Opinion for the Court filed by Circuit Judge ROGERS. 

ROGERS, Circuit Judge: Judicial Watch filed a Freedom of 

Information Act (“FOIA”) request seeking disclosure of “[a]ll 
2 

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 implicates serious privacy concerns,

Judicial Watch was required to demonstrate “exceptional 

interests” warranting disclosure. Fund for Constitutional 

Gov’t v. Nat’l Archives & Recs. Serv., 656 F.2d 856, 866 (D.C. 

Cir. 1981). Judicial Watch has not made that showing, nor 

shown a proper segregability analysis was not conducted. 

Accordingly, we affirm the grant of summary judgment to the 

National Archives and Records Administration. 

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.” 28 C.F.R. § 603.1(a). An 

investigation was conducted from 1994 to 2002. The 

Independent Counsel’s final report was published in five parts 

between 2000 and 2002. See, e.g., Final Report of the 

Independent Counsel, In re Madison Guaranty Savs. & Loan 

Ass’n (Jan. 5, 2001) (“Final Report”). A partially redacted 

memorandum prepared by staff summarizing the evidence 

before the Independent Counsel’s Office was released in 2014 

as a result of a FOIA request by Judicial Watch. In addition, 

committees of both Houses of Congress conducted 

investigations, and the testimony and committee reports are 
3 

available to the public. See Investigation of Whitewater 

Development Corporation and Related Matters, S. REP. NO. 

104-280 (1996); Hearings on Collapse of the Madison 

Guaranty Savings and Loan, H. Comm. on Banking & Fin. 

Servs., 104th Cong. (Aug. 7, 1995). 

 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 28 

U.S.C. § 594(k). The FOIA officer denied the request, 

invoking FOIA Exemption 7(C), which shields from disclosure 

certain law-enforcement information that “could reasonably be 

expected to constitute an unwarranted invasion of personal 

privacy,” 5 U.S.C. § 552(b)(7)(C). Judicial Watch’s appeal to 

the Deputy Archivist was unsuccessful. On October 20, 2015, 

Judicial Watch filed suit against the National Archives, and the 

parties filed cross motions for summary judgment. Attached to 
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the National Archives’ motion was the declaration of its FOIA 

officer invoking Exemption 7(C) because Mrs. Clinton’s 

privacy interests outweighed the public interest in disclosure,

as well as Exemption 3, regarding matters exempted from 

disclosure by statute, 5 U.S.C. § 552(b)(3), and Federal Rule of 

Criminal Procedure 6(e) because disclosure would violate the 

secrecy of grand jury proceedings. Decl. Martha Wagner 

Murphy, Chief, Special Access and FOIA Staff, Feb. 1, 2015. 

In a supplemental declaration the FOIA officer explained that 

a draft indictment “is inextricably tied to the Grand Jury 

process,” and that “individuals . . . never indicted, charged and 

convicted of any criminal wrongdoing retain a significant 

personal privacy interest with respect to draft indictments that 

were contemplated by the [Independent Counsel], discussed 

internally among IC staff, but ultimately never issued.” Supp.

Decl. of Apr. 18, 2016, ¶¶ 7-8. 

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 (2011). The exemptions “must be narrowly 

construed,” id. at 565 (internal quotation marks and citation 

omitted), and the burden is on the government to provide 
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“reasonably specific” justifications indicating that documents 

“logically” or “plausibl[y]” 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.” 5 

U.S.C. § 552(b)(7). In applying this exemption, the court must

“balance the [] privacy interest against the public interest in

disclosure.” Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 

157, 171 (2004). 

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 
6 

concern a staff-proposed formal government accusation of 

criminal conduct. An unissued draft indictment by definition 

contains unproven allegations that were never adopted by the 

Independent Counsel much less by a grand jury. Cf. 

Bloomgarden v. U.S. Dep’t of Justice, 874 F.3d 757, 761 (D.C. 

Cir. 2017). No indictment charging Mrs. Clinton with a crime 

was ever issued by a grand jury, nor was any criminal 

conviction of her obtained by the Independent Counsel. See

Final Report at 411. 

“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 

accorded 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 

(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 
7 

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. 

Second, Judicial Watch maintains there is renewed interest 

in independent counsel investigations. Even assuming this is 
8 

true, a party seeking disclosure of investigative materials must 

still “adequately support[] its ‘public interest’ claim with 

respect to the specific information being withheld.” Senate of 

the Commonwealth of P.R. v. U.S. Dep’t of Justice, 823 F.2d 

574, 588 (D.C. Cir. 1987). Judicial Watch has not identified 

what additional insights the public would glean from disclosure

of staff drafts of an indictment of Mrs. Clinton. The nature of 

possible criminal activity by Mrs. Clinton that the Independent

Counsel investigated is identified in the Final Report and a staff 

memorandum summarizes the evidence before that Office. It 

is true that the court concluded in CREW, 746 F.3d at 1093, 

that disclosure of witness statements, prosecution reports, and

memoranda related to the investigation of a former Majority 

Leader of the United States House of Representatives could 

shine a light on “the diligence of the [Federal Bureau of 

Investigation]’s investigation and the [Department of Justice]’s 

exercise of its prosecutorial discretion[,]” specifically “whether 

the government had the evidence but nevertheless pulled its 

punches.” Unlike CREW, the instant case concerns a draft 

indictment where voluminous information about the 

Independent Counsel’s investigation has been released. 

Judicial Watch and the public at large can more readily assess 

whether the Independent Counsel “pulled its punches.” Nor 

has Judicial Watch explained how disclosure of a draft 

indictment would improve public understanding of the wisdom 

of appointing special prosecutors in general. The asserted 

interest fails to rise above “general public curiosity.” See 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); 5 U.S.C. § 552(b). Judicial Watch’s assertion 
9 

that no segregability analysis was undertaken ignores that its 

request was for “[a]ll versions of indictments,” not more 

informal statements by prosecutors. The National Archives’ 

response to its request was appropriate. See Juarez v. U.S. 

Dep’t of Justice, 518 F.3d 54, 61 (D.C. Cir. 2008).