IN RE: IN THE MATTER OF THE APPLICATION OF JASON LEOPOLD TO UNSEAL CERTAIN ELECTRONIC SURVEILLANCE APPLICATIONS AND ORDERS, JASON LEOPOLD AND REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Appellants v. UNITED STATES OF AMERICA, Appellee
No. 18-5276
United States Court of Appeals for the District of Columbia Circuit
Argued September 25, 2019 Decided July 7, 2020
Appeal from the United States District Court for the District of Columbia (No. 1:13-mc-00712)
Katie Townsend argued the cause for appellants. With her on the briefs was Jeffrey Light.
Christopher T. Bavitz was on the brief for amici curiae Former United States Magistrate Judges in support of petitioners and reversal.
Laura R. Handman, Kurt A. Wimmer, Bruce W. Sanford, Mark I. Bailen, and David McCraw were on the brief for amici curiae Media Organizations in support of appellants.
Charles S. Sims was on the brief for amici curiae First and Fourth Amendment Scholars in support of petitioners-appellants and in support of reversal.
Aaron D. Mackey was on the brief for amici curiae Electronic Frontier Foundation and Riana Pfefferkorn in support of petitioners-appellants.
Peter S. Smith, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jessie K. Liu, U.S. Attorney, and Elizabeth Trosman, Chrisellen Kolb, and Pamela S. Satterfield, Assistant U.S. Attorneys.
Before: TATEL and GARLAND, Circuit Judges, and SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
The public’s right of access to judicial records is a fundamental element of the rule of law. Administrative burden is relevant to how and when a judicial record may be unsealed, but not to whether it may be released at all. We therefore reverse the judgment and remand the case for further proceedings.
I
A
This case involves three kinds of court orders authorizing electronic surveillance: judicial warrants issued pursuant to the
SCA warrants can be used to compel “the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication[] that is in electronic storage” for 180 days or less.
SCA
Pen register orders authorize law enforcement to install pen registers and trap-and-trace devices. Pen registers capture outgoing metadata; trap-and-trace devices capture incoming metadata. See
SCA warrants, SCA
B
In July 2013, Jason Leopold, an investigative reporter now with BuzzFeed News, applied to the district court for an order unsealing some of those materials. In August 2016, the Reporters Committee for Freedom of the Press successfully moved to intervene. Retrospectively -- that is, with respect to past filings -- the Reporters Committee sought to unseal applications, supporting documents, and court orders for SCA warrants, SCA
The applicants and the U.S. Attorney’s Office, “with guidance from [the district] Court, engaged in discussions on how properly to vindicate, in light of substantial law enforcement investigative and individual privacy concerns, the public’s interest in transparency of judicial records concerning the government’s use of statutorily authorized investigative tools.” Leopold II, 327 F. Supp. 3d at 6. The government acknowledged “that applications and orders relating to electronic surveillance methods need not necessarily be permanently sealed,” and it released some information. In re Application of Leopold (Leopold I), 300 F. Supp. 3d 61, 68, 71 (D.D.C. 2018) (quoting Gov’t Resp. 2). The applicants “clarified that the petition sought no personally identifying information concerning investigative targets,” id. at 69, and narrowed their requests. From the record, this case appears to be marked by remarkable good faith and accommodation. Guided by the district court, the applicants, the U.S. Attorney’s Office, and the district court Clerk’s Office took meaningful steps to improve transparency in this district. We applaud the district court for its effective work in moving the process forward.
With respect to past filings, the applicants ultimately received: (1) information about the total number of electronic surveillance applications and more specifics about pen register orders, including basic docket information, for a nine-year period; (2) certain details that the government “extracted” from the files of 10% of pen register matters; and (3) the unsealing (with redactions) of four “sample” pen register applications and orders. Id. at 100.
With respect to future filings, the Clerk’s Office and the U.S. Attorney’s Office entered into a Memorandum of Understanding. Pursuant to the memorandum, the latter can now electronically file pen register and SCA
Despite this admirable cooperation, the parties eventually reached an impasse. Regarding past filings, the applicants still sought basic docket information for SCA
The district court denied additional relief and later denied reconsideration. See Leopold I, 300 F. Supp. 3d 61; Leopold II, 327 F. Supp. 3d 1. The court began by rejecting the applicants’ contention that the First Amendment requires public access to the requested materials, holding that the applicants had failed to show that there was a “tradition of openness” with respect to those materials, as required by the case law. Leopold I, 300 F. Supp. 3d at 91 (citing United States v. Brice, 649 F.3d 793, 795 (D.C. Cir. 2011)).
The district court then went on to address the applicants’ contention that they have a common-law right of access to the same materials. After concluding that each of the three categories of documents at issue are “judicial records,” the court applied this circuit’s six-factor Hubbard balancing test for unsealing judicial records. Id. at 92-97 (citing United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980)); see infra Part II.C (describing the Hubbard factors). The court found that the Hubbard factors weighed in favor of access. Leopold II, 327 F. Supp. 3d at 22. Nonetheless, it held that the “significant administrative burden” of unsealing justified denial of any access at all to past filings, and to anything more than “limited information” contained in future filings. Id. at 5, 21; see id. at 7, 22; Leopold I, 300 F. Supp. 3d at 97. The court further held that the applicants had forfeited their request for real-time access to docket information. Leopold I, 300 F. Supp. 3d at 106.
The applicants now appeal the denial of their requests for additional relief. In this court, they acknowledge that they forfeited their request for real-time docket information, Recording of Oral Arg. at 9:15-9:23, and emphasize that their appeal only involves materials from closed investigations, id. at 9:42-9:54. In brief, the applicants still seek three things: (1) retrospectively, basic docket information for all SCA
The applicants appeal the district court’s decision on both First Amendment and common-law grounds. We reach only the latter. The applicants indicated at oral argument that they believe they can receive all of the relief they request under the common law. Recording of Oral Arg. at 22:05-22:20. In light of the result we reach
II
The common-law right of public access to judicial records “is a fundamental element of the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial Branch.” MetLife, Inc. v. Fin. Stability Oversight Council, 865 F.3d 661, 663 (D.C. Cir. 2017). At bottom, it reflects the antipathy of a democratic country to the notion of “secret law,” inaccessible to those who are governed by that law. The right “antedates the Constitution,” id. at 674 (quoting United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997)), and has been recognized by this court since at least 1894, see Ex parte Drawbaugh, 2 App. D.C. 404, 407-08 (1894).
In 1978, the Supreme Court held it was “clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978) (footnote omitted). In 1980, in United States v. Hubbard, our court likewise noted “this country’s common law tradition of public access to records of a judicial proceeding,” stressing that “[a]ccess to records serves the important functions of ensuring the integrity of judicial proceedings in particular and of the law enforcement process more generally.” 650 F.2d at 314-15. “Like the First Amendment,” we explained, “the right of inspection serves to produce an informed and enlightened public opinion. Like the public trial guarantee of the Sixth Amendment, the right serves to safeguard against any attempt to employ our courts as instruments of persecution, to promote the search for truth, and to assure confidence in judicial remedies.” Id. at 315 n.79 (internal quotation marks and alteration omitted).3
In light of these considerations, there is a “strong presumption in favor of public access to judicial proceedings,” including judicial records. Id. at 317; see MetLife, 865 F.3d at 663. In some cases, that presumption may be outweighed by competing interests. In Hubbard, we identified such interests, 650 F.2d at 317-22, and subsequent cases crafted them into a six-factor test, see infra Part II.C & note 9. The ”Hubbard test has consistently served as our lodestar” for evaluating motions to seal or unseal judicial records “because it ensures that we fully account for the various public and private interests at stake.” MetLife, 865 F.3d at 666 (collecting cases). And Hubbard-like balancing tests are the standard for ruling on motions to seal or unseal judicial records in every circuit. Id. at 671 & n.13 (collecting cases).
A
The district court held that all of the materials at issue here are judicial
As set forth in Part I, the requested materials include three kinds of court orders -- SCA warrants, SCA
There is no doubt that the court orders themselves are judicial records. Court decisions are the “quintessential business of the public’s institutions.” EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996). And the issuance of public opinions is core “to the transparency of the court’s decisionmaking process.” MetLife, 865 F.3d at 668. Indeed, since at least the time of Edward III, judicial decisions have been held open for public inspection. 3 EDWARD COKE, REPORTS, at iii-iv (London, E. & R. Nutt & R. Gosling 1738) (1602).5 It is not surprising, therefore, that the only other circuit to have specifically considered SCA
The same is true of applications for such orders and their supporting documents (e.g., accompanying affidavits). In MetLife, we held that appellate briefs and appendices are judicial records because they are “intended to influence” the court and the court “ma[kes] decisions about them.” 865 F.3d at 668 (internal quotation marks omitted); see League of Women Voters, slip op. at 8. Applications for electronic surveillance orders and their supporting documents are likewise intended to influence the court, and the relevant orders are certainly “decisions about them.” Our sister circuits have held that the closest (although not perfect) analogues -- search warrant applications and supporting affidavits -- are judicial records.6 And the
We reach the same conclusion regarding court dockets. Although judges do not always rely upon dockets themselves in reaching decisions, dockets are nonetheless judicial records because they are “created and kept [by courts] for the purpose of memorializing or recording . . . matter[s] of legal significance.” Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 905 (D.C. Cir. 1996). In a docket, a judge or clerk “briefly notes all the proceedings and filings in a court case.” Docket, BLACK’S LAW DICTIONARY (11th ed. 2019). A court case is by definition a “matter of legal significance,” and the docket memorializes it. Moreover, dockets provide a “kind of index to judicial proceedings and documents,” facilitating public access to the underlying documents. Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004). It would make little sense to provide public access to court documents but not to the indices that record them and thus make them accessible.
Accordingly, we agree with the district court that all of the requested materials are judicial records.
B
Having found that the requested materials are judicial records, the district court next concluded that a “common law presumption of access thus attaches . . . , which the government can rebut only by showing competing interests that compel a conclusion that justice requires maintaining a seal. The Hubbard factors govern this analysis.” Leopold I, 300 F. Supp. 3d at 92 (internal quotation marks, alterations, and citations omitted). The government does not dispute this conclusion.
But the common-law inquiry must yield “when Congress has spoken directly to the issue at hand.” MetLife, 865 F.3d at 669 (quoting Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 937 (D.C. Cir. 2003)). The relevant statute is the
The
A useful comparison is to
In sum, with respect to SCA materials, we conclude that Congress displaced neither the common-law presumption of access nor the Hubbard test for making unsealing decisions. With respect to pen register orders, we conclude that Congress did displace the presumption, but did not displace the Hubbard test as the standard for unsealing. Therefore, when faced with a request to unseal either kind of material, the district court should apply the traditional Hubbard balancing test -
C
Having concluded that the documents sought by the applicants are judicial records to which the Hubbard test applies, we now address the applicants’ principal challenge to the manner in which the district court applied that test: the court’s determination not to unseal the records because of the administrative burden required.
Under the Hubbard test, a “seal may be maintained only ‘if the district court, after considering the relevant facts and circumstances of the particular case, and after weighing the interests advanced by the parties in light of the public interest and the duty of the courts, concludes that justice so requires.’” MetLife, 865 F.3d at 665-66 (quoting In re NBC, 653 F.2d 609, 613 (D.C. Cir. 1981)). We review the decision to seal or unseal for abuse of discretion. El-Sayegh, 131 F.3d at 160. “Whether the lower court applied the proper legal standard in exercising [its] discretion, however, is a question of law reviewed de novo.” Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d 346, 349 (D.C. Cir. 2003).
The Hubbard test requires a district court to weigh the following six factors:
(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.
MetLife, 865 F.3d at 665 (quoting Nat’l Children’s Ctr., 98 F.3d at 1409).9
In this case, the district court found that those factors weighed in favor of the applicants’ retrospective access to the information they seek and that five of the six factors weighed in favor of disclosure on a prospective basis. Leopold I, 300 F. Supp. 3d at 97.10 In so holding, the court emphasized that “[t]he limited scope of the [applicants’] claim is significant -- [they] seek access only to . . . materials from closed criminal investigations, and only to those portions of such materials that do not reveal personally identifying information.” Id. at 91. “As such,” the court explained, “the USAO [U.S. Attorney’s Office] does not contend that disclosure would impede an ongoing criminal investigation or reveal information that would impinge on personal privacy.” Id.
Nonetheless, the court held that there is no right of access at all to previously filed materials, “in consideration of the significant administrative burdens that retrospective disclosure would impose on the Clerk’s Office and USAO.” Id. at 108. As for future filings, the court recognized only “a limited prospective right of access to certain information” contained in the filings, but not to the filings themselves. Leopold II, 327 F. Supp. 3d at 22. The district court held that “significant administrative burden” defeats any right of access beyond that afforded by the Memorandum of Understanding between the Clerk’s and U.S. Attorney’s Offices -- to which the applicants were not parties. Id. at 21; Leopold I, 300 F. Supp. 3d at 105 n.38. Pursuant to that memorandum, the Clerk’s Office generates semiannual reports that list docket numbers, case captions, and certain other information. Id. at 104 n.36. The reports are not the court dockets themselves and do not indicate whether an application for a warrant or order was granted or denied. See, e.g., Mot. for Judicial Notice Ex. B, Attach. A.
“[U]nder Hubbard,” the district court said, “a court may consider administrative burden in deciding whether to recognize any right of access in the first place, not [just] that such a right of access exists but nonetheless gives way to countervailing considerations.” Leopold II, 327 F. Supp. 3d at 27. A “court may conclude that no asserted common law right of access exists in the first place where recognizing such right of access would impose undue administrative burdens.” Id. The government does not defend that conclusion.
Hubbard does not resolve the question before us. Administrative burden is not one of the factors listed in the Hubbard test, which we adopted to “fully account for the various public and private interests at stake” in sealing or unsealing judicial records. MetLife, 865 F.3d at 666. In concluding that administrative burden is a permissible factor, the district court relied upon Hubbard’s further statement that a court may consider “particularized privacy or other interests” offered by the party opposing unsealing. Leopold II, 327 F. Supp. 3d at 27 (quoting Hubbard, 650 F.2d at 323). That phrase is not included in any of this circuit’s subsequent lists of the relevant factors -- the closest of which (as quoted above) is “the strength of any property and privacy interests asserted.” MetLife, 865 F.3d at 665 (quoting Nat’l Children’s Ctr., 98 F.3d at 1409); see supra note 9 (collecting cases).
Nor did Hubbard itself mention administrative burden as a “particularized . . . other interest,” discussing instead only “types of particularized privacy interests.” 650 F.2d at 323, 324 (emphasis added). Moreover, it used the term “particularized” to describe “reasons based on the documents’ contents which might have been thought by the trial judge to justify his unsealing order” with respect to those particular documents. Hubbard did not use the term to describe reasons for sealing entire categories of past and future filings. Id. at 322.11
In re Sealed Case, in which we recognized that “administrative burdens [can] justif[y] the denial of across-the-board docketing” of grand jury ancillary proceedings,
This is not to say that administrative burden is irrelevant in a court’s consideration of a motion to unseal judicial records. Here, for example, the district court did not point to burden as something that it simply would rather not impose on the government and Clerk’s Office. Rather, it pointed to burden as a concern related to other factors that are expressly recognized in the Hubbard test: namely, preventing prejudice to open investigations and protecting privacy interests. See MetLife, 865 F.3d at 665. As the district court explained, it declined to recognize a retrospective right of access “in light of the considerable administrative burden that such extensive unsealing . . . would impose on the USAO and the Clerk’s Office, due to the necessity of identifying, reviewing and redacting sensitive law enforcement and privacy-protected information from any unsealed records.” Leopold II, 327 F. Supp. 3d at 7.
The applicants recognize these concerns. In the district court, they accepted information extracted from pen register orders, rather than insisting on release of the orders themselves, in order to minimize the risk of “inadvertent disclosure” that could occur even with redaction. Leopold I, 300 F. Supp. 3d at 77. At oral argument, they acknowledged that the government and court must be able to redact documents in order to protect privacy and law enforcement interests. Recording of Oral Arg. at 11:25-11:46. And we do not understand them to take issue with the suggestion, raised at oral argument, that the district court can generally leave it to the government to decide in good faith when investigations are truly closed, taking into account related cases that could be damaged by premature disclosure of surveillance and particular difficulties that could arise if the lawyers involved have left the government. Id. at 51:38-52:44. The applicants may argue about the application of those concerns to individual documents, but they accept their importance.
It is undisputed, then, that in considering the legitimate interests identified in Hubbard, a court may reasonably find that the administrative burden of protecting those interests should affect the manner or timing of unsealing. As the district court said, the Clerk’s Office cannot simply press “print” and unseal docket information that might jeopardize personal privacy or ongoing investigations. Leopold I, 300 F. Supp. 3d at 98. The applicants cannot and do not expect the U.S. Attorney’s and Clerk’s Offices to disclose records without redactions or to drop everything and make unsealing their top priority.
But although administrative burden is relevant to how and when documents are released, it does not justify precluding release forever. The records at issue here are not nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse. Cf. RAIDERS OF THE LOST ARK (Lucasfilm Ltd. 1981). Production may be time-consuming, but time-consuming is not the same thing as impossible.
Treating administrative burden as dispositive with regard to public access to judicial records would also lead to unacceptable differences between districts. The number of electronic surveillance orders of different kinds varies substantially between judicial districts.13 If burden were dispositive, judicial records of precisely the same kind could be publicly accessible in some districts and not others.
Nor would this result be limited to interdistrict variances. If administrative burden could justify the permanent sealing of electronic surveillance orders, there would be no basis for failing to extend that holding to the many other kinds of sensitive filings in the general dockets of district judges. Hence, the same documents could be publicly accessible not only in some courts and not others, but also in the dockets of judges with fewer such filings and not in those with many more, even in the same court. That result would also be unacceptable. Obtaining access may take longer from a district or judge with a larger number of orders than another, but at the end of the day (or many days), the same kind of record should be accessible from both.
Accordingly, in our judgment, the burden of producing judicial records may not permanently foreclose their unsealing.
III
Providing public access to judicial records is the duty and responsibility of the Judicial Branch.14 Precluding public access because of the personnel-hours required to produce those records is no more warranted than precluding public access to high-profile trials because of the costs of crowd control. Administrative burden, when taken into consideration as necessary to protect other relevant interests, may affect how and when judicial records may be released. But it is not dispositive of whether judicial records may be released at all.
Reversed and remanded.