Public Access

When the Fat Lady's Cat is Singing to the Genie, and the Bottle Has Fallen Out of the Bag …

An interesting decision called United States v. Suppressed.

|The Volokh Conspiracy |

From United States v. Suppressed, decided yesterday by the U.S. District Court for the Northern District of Illinois:

Before the court is the Chicago Tribune Company, LLC's … motion to intervene and to unseal a search warrant affidavit. The motion presents the difficult—and thankfully, rare—question of how the court should proceed where a document properly subject to a seal order is nonetheless accessed by a member of the press….

In January 2019 it came to this court's attention that the Chicago Sun-Times … was in possession of an affidavit submitted in connection with a search warrant application in this matter, despite a court order requiring those materials to be maintained under seal. A reporter for the Sun-Times had gained access to the affidavit by exploiting a docketing error in the court's electronic filing system. As soon as the error was brought to the court's attention, the court electronically applied the seal in accordance with the order to seal, but by then the affidavit was in the possession of the Sun-Times. In a series of articles beginning on January 23, 2019, the Sun-Times has reported on the contents of the search warrant affidavit.

In the current motion, the Tribune seeks to intervene for the limited purpose of seeking access to the search warrant affidavit. According to the Tribune, it has First Amendment and common law rights to access the subject affidavit because, in its words, "the proverbial cat is out of the bag" now that the Sun-Times is in possession of the document and has reported on its contents. The government objects, arguing that there is no right to access documents related to unexecuted search warrants in the pre-indictment stage of a criminal investigation, and that even if there were, the public's interest in the fair and efficient administration of criminal proceedings outweighs any interest in accessing the sealed affidavit. The government further argues that the Sun-Times's possession of the affidavit subject to a seal order does not require the court to lift the seal, and that doing so "would create perverse incentives to engage in conduct that decidedly is not in the public interest." …

The Supreme Court has recognized that the public and the press have a qualified—but not absolute—common law right of access to judicial records [even setting aside whether the First Amendment also secures such a right]. Because the common law right of access is qualified, the court has discretion to evaluate whether access should be allowed in light of the facts and circumstances of the particular case….

To the court's great regret, although the search warrant affidavit was at all relevant times subject to an order that should have guaranteed its protection under seal, … the subject affidavit was not at all times properly sealed. That its disclosure was the result of a docketing error that was corrected upon its discovery does not change the fact that the document was temporarily accessible to the public, and during that temporary period of accessibility the Sun-Times exploited the error and downloaded the affidavit. The Sun-Times has since published extensively on the affidavit's contents. As the Tribune puts it in a collection of mixed metaphors, post-publication "the genie is out of the bottle," "the cat is out of the bag," and "the ball game is over." There is no step that this court can take post-publication of the search warrant affidavit's details to regain the secrecy of the publicly disseminated information.

With that unfortunate reality at hand, the court must conclude that under the particular facts and circumstances of this case the public interest underlying the Tribune's common law right of access to the search warrant affidavit outweighs any remaining interest in the secrecy of the affidavit. Two cases in particular inform that conclusion. In In the Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1312-13 (7th Cir. 1984), a report that was produced in discovery only under seal was later admitted into evidence and discussed at a public proceeding. Although the entire report was not publicly disclosed, the court concluded that "enough of it was disclosed" to dissolve any justification to restrict further public access. In balancing the presumption of access against the interest in confidentiality, the court determined that privacy interests underlying a privileged report are reduced after a partial loss of confidentiality, and that after such a loss the district court did not abuse its discretion in ordering the report's disclosure.

Similarly, in Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004), the court found that the district court had abused its discretion in referring to the magnitude of a confidential settlement agreement in a public order but reasoned that "however confidential it may have been beforehand, subsequent to publication it was confidential no longer." The court noted that once information that was secret is prominently disseminated, the court does not have the power "to make what has thus become public private again," because once information is public, "it necessarily remains public."

The government attempts to distinguish those cases by pointing out that "the sealed document at issue in this case was never admitted in evidence or discussed in open court." That is of course true, as is the distinguishing characteristic that here the court's exposure of confidential information was unintentional as opposed to intentional. But the end result— public disclosure—is the same, and that loss of confidentiality reduces the interest in maintaining secrecy, tipping the balance in favor of the Tribune's interest in accessing the document.

That is especially so because here the court's sealing order is subject to a rule limiting the seal to 180 days and requiring the government to file a motion before any expiration date justifying the seal's extension. In other words, the applicable seal in this case was never a permanent one, and the default is for the seal to expire absent an on-going justification for secrecy. Given the extent of the public disclosure in this case, the court is unable to find that a sufficient justification exists here to overcome the Tribune's interest in accessing the document.

The court fully understands and shares the government's concern that unsealing the affidavit here provides an undesirable incentive for the press to seek out and exploit errors in the sealing process. But the common law right of access requires this court to weigh the facts and circumstances of this particular case to determine whether the public's right to know outweighs any remaining privacy interests in light of the Sun-Times's reporting. The court has not been advised of any facts or assertions demonstrating that certain information in the currently sealed affidavit has not yet been publicly disclosed and should remain sealed. Nor has it been advised of any specific harm that would stem from granting the Tribune's motion.

In that vein, the court has also considered whether it would be appropriate to unseal only a redacted version of the search warrant affidavit, shielding from public view any information that has not yet been published by the Sun-Times. But the government has neither requested that relief nor highlighted any information that has not yet been published and requires continued secrecy. More importantly, because the Sun-Times is in possession of the full affidavit, it could disseminate any as-yet unpublished information at any time. It would not make sense for the court to go through a redacting exercise that would need to be repeated anytime the Sun-Times makes additional information public. As such, the court finds that there are insufficient facts or circumstances to justify continuing the affidavit's seal now that its contents have been widely disseminated….

[Footnote:] Recognizing that no human-run system is perfect, in the context of the attorney- client privilege a rule has been developed allowing attorneys to "claw back" documents in certain circumstances where confidential information is inadvertently disclosed. Unfortunately, no such curative option is available in this context….

And, of course, "when the wolves come out of the walls, it's all over."


NEXT: No Preliminary Injunctions Against Libel

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  1. 1. Why would the Tribune sue to unseal a document they’ve already got ?

    2. Who now wants to bet against a few docketing errors in cases in which sealed documents turn out to embarrass Republican politicians ?

    1. 1. The Chicago Sun-Times and the Chicago Tribune aren’t the same paper. The Sun-Times has the document, the Tribune wants it.

      2. Nobody’s stupid enough to take that bet.

      1. Thank you for that explanation. But it then raises the next – obvious – question.

        If the Sun-Times has got the document, and the Tribune has to sue to get it, it’s escaped from the court, but not to the general public. Hence it’s out there, only so far as the Sun-Times chooses to put it out there. Ergo, there’s no reason to suppose that refusing the Tribune access to it is entirely worthless from the point of view of those who want the document hidden from the public.

        Let’s take another case – suppose the Sun-Times has the document but hasn’t publshed anything yet. They contact the litigant who asked for it to be sealed to seek pre-publication comment. The litigant says “Let’s make a deal – you agree to keep it secret and hand over all copies to me – and I’ll give you the full skinny on Ivanka’s love child and the ex boyfriend in the Russian Intelligence service who’s blackmailing her father. The Sun-Times takes the deal.

        The document isn’t out there, the litigant has a contract under which he can sure the cojones off the Sun-Times. The Tribune sues “cos it’s out there.” But it isn’t – that’s exactly why they’re suing.

        1. Once the Sun-Times has it, it’s out there. At that point only letting the Sun-Times have it is partiality.

          The judiciary isn’t supposed to be partial to particular newspapers.

        2. The court made a point of noting that the Sun-Times had published about the affidavit already and thus it was “enough” in public view that there was no point keeping it sealed. So the fact that it had already been reported on was a key factor that justified the decision. If they hadn’t reported on it yet, the government probably would’ve been more successful.

          1. I think in this case, that might be an argument between releasing the full document and a redacted document, but I could see a different case where the issue is more pressing.

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  2. There is no step that this court can take post-publication of the search warrant affidavit’s details to regain the secrecy of the publicly disseminated information.

    While the secrecy cannot be regained, a 50 year prison sentence for all involved in publicizing the sealed document would go a long way to seeing that other sealed documents stay sealed.

    1. The constitution only permits imprisonment upon conviction of a crime, and for contempt. No criminal statute or court order forbade the newspaper from accessing or copying documents on the court’s docket. In short, the newspaper did nothing for which it could be punished, much less imprisoned for fifty years.

      1. About ten minutes googling (IANAL) indicates no obvious textual constitutional authority for imprisonment for contempt. This power appears to derive either from statute (fair enough – pretty obvious due process of law) or it is “inherent” – ie emergent from that penumbral zone explored by judges in case law. If there is indeed a constitutionally “inherent” contempt power, that falls acceptably within “due process” – why should the courts be constrained from applying it to cases such as this* ? I don’t suggest that this would be a good idea, but what’s the theory as to why it is constitutionally impossible ?

        * I stipulate that the court would be able to determine as a factual matter that the newspaper knew, or should have known, that despite its “sealing”, the document was left available to view, in error.

        1. If there is indeed a constitutionally “inherent” contempt power, that falls acceptably within “due process” – why should the courts be constrained from applying it to cases such as this* ?

          To quote the poster to whom you’re responding: “In short, the newspaper did nothing for which it could be punished, much less imprisoned for fifty years.” “Nothing” in this context is a broad term, encompassing contempt.

          The order that the document be sealed is an order to the court clerk and the litigants, not to third parties not before the court. Independently learning of its contents does not make other people subject to the court. (By “independently,” I mean that they weren’t acting in concert with the clerk or the litigants. If they had paid the clerk to release the sealed document to them, that would be a different story.)

    2. Amazing how some who Longtobefree are so ready to imprison for 50 years, those who L2BF decides is violating L2BF’s unique view of wrongful behavior.

    3. So, if Edward Snoweden steals classified information detailing illegal government activities (as he did) and passes it on to a third party (as he did) and that party then tells people about the illegal things the government’s been doing (as they did) then that party should go to jail?

      That the staff of the NYT that released the Pentagon Papers should have gone to jail?

  3. It just shows to go you, “You can’t put the toothpaste back in the tube.” No siree, “that dog won’t hunt.” The government’s argument is clearly, “All Hat; no cattle.”

    1. You can’t unring a bell.

      Too soon?

  4. This is one for the New Yorker’s “Block That Metaphor” squibs.

  5. The government attempts to distinguish those cases by pointing out that “the sealed document at issue in this case was never admitted in evidence or discussed in open court.

    The operative assumption here is that the original sealing order was proper. It seems to me, though, that the fact that evidence was presented to a court with the intention the court act upon (by issuing a warrant) makes it presumptively subject to public access. That is my understanding when the right of access applies — somone asks the court to review evidence (and lega argument) and grant them relief.

    Now there may be a basis for sealing anyway, if there is something sensitive that needs to be kept out of the public domain. For example, a trade secret of a business in a civil case. Or, here, maybe there is an informant that gave information that made its way into the warrant application, and there is a concern that the informant will be retailated against.

    But the idea that warrant application, merely because it is done ex parte and issued before trial can be routinely sealed seems wrong to me.

    1. As I understood, the seal was set to expire after the indictment issued.

      I’m generally against court secrecy, but when it’s about an ongoing investigation and automatically dissolves when the investigation concludes, well, that seems pretty darned reasonable.

    2. Warrant applications are often sealed while the investigation is still ongoing so that the extent of the information they’ve already gathered isn’t revealed. It could jeopardize the investigation if you give the defendant a checklist of places they already know about he needs to clear out or people he needs to threaten to shut up. Once the investigation is complete and they have all the information already safe, then access is allowed to let the defendant prepare for the court case.

  6. The solution is simple here. Government/courts, do your job correctly; properly seal a document if you are going to seal a document. Really, its that easy, don’t try to use the courts to correct your stupid mistakes.

  7. Eugene, the OP title echoes Grace Slick’s “White Rabbit,” right?

  8. Eugene, the OP title echoes Grace Slick’s “White Rabbit,” right?

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