In the Matter of the Application of Jason Leopold to Unseal Certain Electronic Surveillance Applications and Orders
964 F.3d 1121
| D.C. Cir. | 2020Background
- Jason Leopold and the Reporters Committee for Freedom of the Press sought unsealing of court materials (applications, supporting papers, orders, and dockets) for three types of electronic-surveillance authorizations: SCA warrants, SCA § 2703(d) orders, and pen-register orders, limited to closed investigations.
- The district court and parties cooperated: some information and sample redacted materials were released and a Memorandum of Understanding created semiannual docket reports, but many requests remained denied.
- The district court held the materials are judicial records and that the Hubbard six-factor common-law balancing test applies and, on balance, favored disclosure — but nonetheless denied further unsealing because of the substantial administrative burden of reviewing and redacting records.
- Appellants narrowed their appeal to closed-investigation materials and abandoned a request for real-time docket access; they pressed only common-law (not First Amendment) grounds on appeal.
- The D.C. Circuit held (1) the materials are judicial records, (2) the common-law presumption of access and the Hubbard test apply to SCA materials (Congress did not displace common-law access), (3) the Pen Register Act displaces the presumption as to pen-register orders only but not the Hubbard balancing standard, and (4) administrative burden may affect timing/methods of release but cannot permanently bar disclosure; the case was reversed and remanded for the district court to determine how and when greater access can be provided.
Issues
| Issue | Plaintiff's Argument (Leopold) | Defendant's Argument (U.S.) | Held |
|---|---|---|---|
| Are the requested SCA/§2703(d)/pen‑register materials "judicial records"? | Materials filed to obtain judicial action are judicial records. | Some filings implicate law‑enforcement or privacy concerns but are still court filings. | Yes; orders, applications, supporting affidavits, and dockets are judicial records. |
| Does the common‑law presumption of access apply or has Congress displaced it (SCA & Pen Register Act)? | Common‑law presumption governs; statutes do not mandate sealing of SCA materials. | The Pen Register Act directs sealing of orders; statutory text governs. | SCA: common law and Hubbard apply. Pen Register orders: statutory sealing displaces the presumption but not the Hubbard test for unsealing. |
| May administrative burden alone justify refusing to unseal records permanently? | Administrative effort is a practical concern but should not permanently bar access. | Substantial review/redaction burdens justify denying broad retrospective access. | Administrative burden is relevant to timing/methods but cannot permanently defeat the right of access. |
| How should the Hubbard six‑factor test be applied here? | Hubbard factors favor disclosure (need for access, limited privacy risk, closed cases). | Privacy and investigative-prejudice concerns justify continued secrecy; burden informs that weighing. | Hubbard governs; district court erred by treating burden as dispositive; remand to tailor release procedures consistent with Hubbard. |
Key Cases Cited
- MetLife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661 (D.C. Cir. 2017) (affirming common‑law presumption of access and endorsing Hubbard‑style balancing)
- United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980) (establishing the six‑factor balancing test for sealing/unsealing judicial records)
- Nixon v. Warner Commc’ns, Inc., 435 U.S. 589 (U.S. 1978) (recognizing a general right to inspect judicial records)
- In re NBC, 653 F.2d 609 (D.C. Cir. 1981) (discussing when sealing is appropriate under balancing principles)
- In re Sealed Case, 199 F.3d 522 (D.C. Cir. 2000) (grand jury context: administrative/docketing considerations may justify different treatment)
- In re Application of United States (Appelbaum), 707 F.3d 283 (4th Cir. 2013) (holding §2703(d) motions are judicial records subject to common‑law access)
- SEC v. Am. Int’l Grp., 712 F.3d 1 (D.C. Cir. 2013) (clarifying when filed materials qualify as judicial records)