The Volokh Conspiracy

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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.


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."