United States v. Loughner, 807 F. Supp. 2d 828

The Washington Post sought release of records relating to the January 8, 2011 Tucson shooting investigation; the Sheriff was ordered not to release any investigative materials in a protective order issued March 23.
The Washington Post, Phoenix Newspapers, Inc., and KPNX Broadcasting moved to modify the protective order, arguing overbreadth and a public-records right under Arizona law, with a fallback for redacted materials.
The Government disputed standing to intervene and whether any modification was warranted, citing that the materials were not judicial records and that intervention is typically tied to access to judicial records.
The Court analyzed whether the records are judicial records; it found the investigation was a joint federal-state effort and that the records are not judicial records under federal law, with 18 U.S.C. § 351(f) reinforcing federal jurisdiction.
Even if the materials are treated as public records under Arizona law, the Court held the protective order could be justified by the Sixth Amendment right to a fair trial and Local Rule 57.2(f), overriding presumptive Arizona access.
Ultimately the Court denied modification but allowed the Government to release non-sensitive investigation materials if it lodges proposed materials with the Court and allows defense objections.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the news organizations may intervene to modify the protective order	Post argues for intervention to challenge disclosure; a permissive stance is warranted	Government contends intervention is limited and not warranted since records are not judicial	Intervention assumed for purposes of analysis; modification denied on merits
Whether the protective order is overbroad under Arizona public records law	Records should be accessible under Arizona law or redacted versions should be released	Federal case; state law cannot govern access; records not judicial and subject to confidentiality	Protective order justified; not bound by Arizona public records law; modification allowed for non-sensitive materials
Whether the investigation materials are judicial records triggering a presumptive public access right	Investigation materials are public records of a joint federal-state investigation	Materials are not judicial records; no presumptive access	Not judicial records under federal law; even if treated as such, Sixth Amendment concerns support secrecy
What scope of modification is appropriate if any disclosure occurs	Any release should be comprehensive	Release should be selective to avoid privacy and fair-trial harms	Order modified to permit release of non-sensitive materials if lodged with Court and defense receive notice

Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) (closure of voir dire and criminal proceedings; public access to judicial records)
Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501 (1984) (see above)
Oregonian Pub. Co. v. U.S. Dist. Court for Dist. of Oregon, 920 F.2d 1462 (9th Cir. 1990) (public records access in federal cases; limits of sealing)
Associated Press v. U.S. Dist. Court for Cent. Dist. of California, 705 F.2d 1143 (9th Cir. 1983) (mandamus and access to high-profile records; intervention context)
Wecht, 484 F.3d 194 (3d Cir. 2007) (limits of intervention and what constitutes judicial records; access discussions)
Blagojevich, 612 F.3d 558 (7th Cir. 2010) (intervention in criminal cases and access to records themes)
McVeigh, 931 F. Supp. 756 (D. Colo. 1996) (protective order preventing release of sensitive investigation materials)
United States v. Anderson, 799 F.2d 1438 (11th Cir. 1986) (discovery and public access principles in criminal cases)