The opinion of the court was delivered by: SOTOMAYOR
SONIA SOTOMAYOR, U.S.D.J.
Defendant United States Department of Justice (the "DOJ") and intervenor-defendant Lisa Foster move, pursuant to Fed. R. Civ. P. 60(b), for an order vacating a ruling of this Court and dismissing corresponding portions of the Complaint as moot. Defendants' motion for vacatur applies to my Opinion and Order dated January 5, 1995, and my Judgment dated March 6, 1995, requiring public disclosure of a torn-up note attributed to the late Vincent W. Foster (the "Note"). For the reasons discussed below, defendants' motion is GRANTED.
Plaintiffs Dow Jones & Company, Inc. ("Dow Jones") and Robert L. Bartley ("Bartley") brought this action under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, seeking disclosure of two reports, one prepared by the United States Park Police (the "Park Police") and the other by the Federal Bureau of Investigation (the "FBI"), concerning the death of former Deputy White House Counsel Vincent Foster.
A torn-up Note, which was apparently written by Foster and found in his briefcase several days after his death, was a part of the investigation and was referenced in the reports. In their motion for partial summary judgment, plaintiffs challenged the DOJ's decision to withhold a copy of the Note from the public. The DOJ argued that it was authorized to withhold the Note under 5 U.S.C. § 552(b)(7)(C), which protects from disclosure any law enforcement records whose release would constitute an "unwarranted intrusion of personal privacy."
In an Opinion and Order dated January 5, 1995, I ruled in favor of the DOJ on the withholding of the two investigative reports but in favor of the plaintiffs on the withholding of the Note. On February 16, 1995, I granted Lisa Foster, Vincent Foster's widow, leave to intervene for purposes of appeal. A Final Judgment was entered on March 6, 1995, enjoining the DOJ from withholding photocopies of the Note from circulation. Familiarity with the January 5, 1995 Opinion and Order, Dow Jones & Co. v. United States Dep't of Justice, 880 F. Supp. 145 (S.D.N.Y. 1995), is assumed and I will not restate the factual background of this case as described therein.
Also in May, 1995, the Senate Committee on Banking, Housing and Urban Affairs (the "Senate Committee") requested from the United States Department of the Interior (the "Interior Department") certain Park Police documents relating to Vincent Foster's death. On June 13, 1995, the Interior Department supplied the requested documents, including a photocopy of the Note, to the Senate Committee. This photocopy was provided in a separate envelope with a request for assurances that the Note be kept confidential. No other authorized release of the Note has been made by the DOJ or any other executive branch agency.
On August 2, 1995, after the DOJ and Lisa Foster had filed their appellate briefs and the Joint Appendix, the Wall Street Journal reprinted the photocopied Note on its opinion page under the headline: "The Note That Won't Go Away." Under the headline was an explanatory sub-headline that stated:
The following note was said by the White House to have been found in Vincent Foster's briefcase following his death.
On the same page, the Journal published an accompanying editorial, headlined "More Small Fry," in which it alluded to the circumstances under which it had obtained the photocopied Note:
Little wonder that the White House has been extraordinarily sensitive about this note, releasing its version of the text but making the original available only in the Justice Department press room. We have sued for its release under the Freedom of Information Act, and won in Federal District Court. But appeal is still pending, after attorneys representing Mrs. Foster intervened with assertions of privacy rights. By now copies of the note have been widely circulated on Capital Hill, and even displayed on television screens in the hearing room. This has become ridiculous, and a copy of the note is reprinted alongside. Of course, the events described above show that the chain of custody is much in doubt, so we do not know whether it is the same yellow pieces of paper Ms. Gorham saw but Mr. Nussbaum did not. (Emphasis added.)
In their response to the instant motions, plaintiffs do not identify their source for the Note and neither confirm nor deny that they obtained the Note from a congressional source.
In light of the Journal's publication of the Note, defendants moved on August 17, 1995, in the Second Circuit Court of Appeals to dismiss the appeal as moot and to vacate the relevant portions of this court's decision. Plaintiffs opposed the motion, arguing that they still needed an "authenticated, actual-sized copy" of the Note to confirm that they had published a genuine copy of the Note and to test certain claims made during the investigation of Vincent Foster's death. After various discussions among the parties and a conference with this court, counsel for the DOJ sent plaintiffs a letter dated September 27, 1995, confirming that the Journal had published an authentic copy of the same Note that was at issue in the pending appeal. The letter also stated, "In response to your inquiry, the copy of the note in the possession of the Justice Department is on standard 8 1/2 x 11 inch paper, with the outline of the reassembled note itself occupying an area of slightly smaller dimensions." By ...