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Free Speech

Can Court Seal Details Related to Allegations of Misconduct by Federal Prosecutors?

The Second Circuit reverses such a limited sealing order, and sends the case back to the district court for further analysis.


From Gannett Media Corp. v. U.S., decided yesterday by the Second Circuit (Judges Reena Raggi, Joseph Bianco & Sarah Merriam):

This appeal arises out of a criminal case in which several defendants were indicted on various federal charges related to an alleged insurance fraud scheme and scheme to defraud certain U.S. government entities. In October 2020, the district court granted the defendants' motions to dismiss the indictment on speedy trial grounds and, in doing so, highlighted the "government's repeated missed deadlines resulting in the conditional interest of justice exclusion, the government's failure to produce by the July 31, 2019 deadline any material from several of the devices seized over a year earlier, and the government's failure to approach its electronic discovery obligations with the necessary vigor required to manage ESI of this volume." The district court, however, determined that the dismissal should be without prejudice given the lack of bad faith.

After a new indictment was filed, the defendants moved for reconsideration of the dismissal of the prior indictment without prejudice, arguing that dismissal with prejudice was warranted based on newly-discovered evidence that the government had engaged in misconduct, including making intentionally misleading statements and omissions to the court. The district court directed the government to respond, in affidavit form, to the allegations and, during oral argument on the motion, concluded that an evidentiary hearing was necessary to address the district court's concerns regarding the government's conduct and its prior representations to the court. The defendants pled guilty before the hearing occurred and, under their plea agreements, withdrew their motions for reconsideration.

However, on April 22, 2022, the district court issued an order noting that, pursuant to its inherent authority to supervise conduct of the members of its bar, "additional fact-finding may be warranted where it is unclear if government lawyers intentionally made a misleading statement to the Court." Thus, the district court considered "whether the Court, on its own, should resolve those factual disputes, notwithstanding the withdrawn motions" by the defendants.  Moreover, the district court ordered that, if the government took the position that no further misconduct inquiry by the district court was necessary, it should file a submission setting forth the basis for that position, including any potential "plans the government has to pursue the issues on its own internally."

In a decision and order dated July 20, 2022, the district court granted the government's motion to file its submission ex parte and under seal. The district court determined, based upon the government's submission and affidavit in support of its motion to seal (collectively, the "Sealed Submissions"), that it would "not take further steps sua sponte to investigate the allegations that were the subject of the planned evidentiary hearing …."

Gannett filed motions to intervene and for reconsideration of the July 20 order. On September 19, 2022, the district court granted Gannett's motion to intervene and granted in part and denied in part its motion for reconsideration. In particular, the district court held that it would unseal the Sealed Submissions, insofar as they revealed "the internal steps that the United States Attorney's Office for the Western District of New York … intends to take to ensure the type of discovery failures that occurred in this case do not reoccur" and "the general internal processes available within the Department of Justice to conduct" an attorney misconduct review, but keep under seal those parts of the Sealed Submissions (1) naming officials involved in internal reform efforts at the U.S. Attorney's Office and (2) regarding "the status of any review by the Department of Justice of attorney misconduct issues."

Gannett appealed, and the court largely agreed with Gannett:

"Judicial documents are subject at common law to a potent and fundamental presumptive right of public access that predates even the U.S. Constitution." As we have explained, "[t]he presumption of access is based on the need for federal courts, although independent—indeed, particularly because they are independent—to have a measure of accountability and for the public to have confidence in the administration of justice." Once a court finds that documents are judicial documents and thus the common law presumption of access is triggered, the court must determine the weight of that presumption and then "balance competing considerations against it." This common law presumption of access requires a court to make specific findings, after careful review of all competing claims for and against access, before sealing a judicial document.

The public's access to judicial documents is also protected by a "qualified First Amendment right." "Indeed, the First Amendment protection has been understood to be stronger than its common law ancestor and counterpart." … However, as with the common law right of public access, the First Amendment right is "not absolute." Thus, "documents may be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." The Sealed Submissions, as the district court found, are judicial documents subject to a presumptive right of public access under both the First Amendment and common law rights.

We conclude, however, that the district court failed to make the requisite specific findings that would support the redactions of the Sealed Submissions under either presumption. The district court's two justifications for the redactions were (1) the need "to protect the robust and candid functioning of the Department of Justice's internal processes," and (2) "privacy concerns." These broad [and general] findings, however, are insufficient to justify the redactions in the Sealed Submissions.

Moreover, to the extent the government has presented arguments on appeal to buttress the district court's findings in support of the redactions under the common law presumption, we are unpersuaded. First, we emphasize that there is a strong public interest in the manner in which criminal cases are conducted, including the handling of any allegations of prosecutorial misconduct during the discovery phase of the case.

The district court itself recognized that "[t]he Court expects all attorneys who appear before it to conduct themselves with the utmost candor, but that expectation is particularly keen when it comes to attorneys representing the United States of America" because they are "guardians of the public interest." Here, the district court found that "[t]here is no question that inaccurate statements were made by the government as part of these proceedings" and that there was "credible evidence in the record supporting the defense position that, in fact, there were intentional misrepresentations by the government to the Court." See also App'x at 153 (district court noting that "the public confidence in our criminal justice system … has been impacted by this case" and "the [prosecutors'] handling of this case … is not the way the criminal justice system is supposed to work"). {We emphasize that the district court did not make a finding of intentional misconduct by the prosecutors; rather, the factual disputes regarding that issue were going to be resolved at the anticipated evidentiary hearing.}

Therefore, the Sealed Submissions, which ultimately persuaded the district court that an independent judicial investigation under its Article III supervisory powers of the alleged prosecutorial misconduct was unnecessary, carry a strong presumption of public access under the circumstances of this case…. "As our precedent makes clear, a court performs the judicial function not only when it rules on motions currently before it, but also when properly exercising its inherent supervisory powers." … "The press does not simply publish information about trials but guards against the miscarriage of justice by subjecting the police, prosecutors, and judicial processes to extensive public scrutiny and criticism." … The district court failed to give sufficient weight to that presumption in its analysis.

Second, in terms of countervailing considerations, it is unclear how generalized "privacy concerns" or the "robust and candid functioning" of the Justice Department's internal processes can outweigh the strong presumption in this case. As the district court noted, "the evidence of potential prosecutorial misconduct that exists in this case is on the public docket, available for review by Gannett or anyone else who is interested in the matter." Thus, there is no concern about disclosing the identity of the prosecutors accused of misconduct.

The district court also made clear that the Sealed Submissions contain no findings or additional evidence of government misconduct and, therefore, they cannot be analogized to internal disciplinary records. In short, the government has failed to articulate how the unsealing of its submissions would interfere with any potential internal government process related to alleged prosecutorial misconduct. Indeed, the government explicitly stated in the district court that it was not invoking any deliberative process privilege as a ground for sealing.

Similarly, although the district court redacted the names of supervisors in the U.S. Attorney's Office and high-level officials in the Department of Justice involved in the remedial efforts to address these allegations, the government has not sufficiently explained how the disclosure of the identities of such individuals implicates privacy concerns sufficient to warrant sealing, especially where the government often publicly discloses the identities of high-level officials involved in its decision-making procedures.

In sum, although we are skeptical that the government can provide a sufficient basis to support the specific findings that would be necessary to justify redactions to the Sealed Submissions, we will remand the matter to give the district court the opportunity to consider fully the government's arguments on this issue and, if the district court determines continued sealing is warranted, to make more specific findings supporting the redactions under our precedent.

Congratulations to Michael J. Grygiel and Kelly L. McNamee of Greenberg Traurig, LLP,  who represent Gannett. Thanks to Steven Getman for the pointer.