984 F.3d 114
D.C. Cir.2021Background
- After President Trump fired James Comey, reporters sought Comey’s contemporaneous memos; CNN sued the FBI under FOIA seeking those memos.
- The FBI submitted an ex parte, in camera declaration by Deputy Assistant Director David Archey to justify redactions to the Comey Memos; the public saw only a redacted Archey Declaration.
- Following partial public release of most Comey Memos and completion of the Mueller investigation, the district court upheld most memo redactions but ordered disclosure of the remaining unredacted portions of the Archey Declaration (about forty words) under the common-law right of public access.
- The FBI appealed only the district court’s order to unseal the Archey Declaration; no party appealed the district court’s rulings on the memos themselves.
- The D.C. Circuit held the Archey Declaration is a judicial record subject to a strong presumption of access but concluded the district court misapplied the Hubbard six-factor balancing test and vacated and remanded for reapplication of those factors.
Issues
| Issue | Plaintiff's Argument (CNN) | Defendant's Argument (FBI) | Held |
|---|---|---|---|
| Whether the Archey Declaration is a judicial record | Filed to influence the court’s FOIA decision; thus it is a judicial record subject to access | Argued it was not a judicial record (argument assumed but rejected) | Court held it is a judicial record (influenced judicial decisionmaking) |
| Whether the district court correctly applied the Hubbard six-factor test to order disclosure | Factors favor disclosure given public interest in Comey materials and prior public releases | District court improperly weighed factors by focusing on the overall case and public interest in the memos rather than the specific sealed information | Court vacated and remanded for the district court to reapply Hubbard, focusing on the specific redacted information and relevant context |
| How much weight to give national-security interests and the identity of the objector | Agency objection weaker because no third-party objector and much related material was public | FBI emphasized statutory duties and grave risks to intelligence sources/methods; nondisclosure is crucial to protect sources and future intelligence-gathering | Court emphasized the FBI’s unique national-security role and that secrecy concerns and risks to sources merit substantial weight in the balancing analysis |
| Whether First Amendment access supplies an alternative basis to affirm the unsealing order | First Amendment supports public access to judicial records | Government contested (court avoided the constitutional question) | Court declined to decide the First Amendment claim and resolved case on common-law access grounds |
Key Cases Cited
- United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (articulated six-factor common-law test for access to judicial records)
- In re Leopold to Unseal Certain Electronic Surveillance Applications and Orders, 964 F.3d 1121 (D.C. Cir. 2020) (strong presumption of access and guidance on applying Hubbard)
- League of Women Voters of the United States v. Newby, 963 F.3d 130 (D.C. Cir. 2020) (documents filed to influence adjudication qualify as judicial records)
- SEC v. American International Group, 712 F.3d 1 (D.C. Cir. 2013) (role-based test for whether a filing is a judicial record)
- MetLife, Inc. v. Financial Stability Oversight Council, 865 F.3d 661 (D.C. Cir. 2017) (discussing presumption of access and competing interests)
- Nixon v. Warner Communications, Inc., 435 U.S. 589 (U.S. 1978) (access to judicial records is not absolute)
- Sims v. CIA, 471 U.S. 159 (U.S. 1985) (recognition of secrecy importance in intelligence and protection of sources)