Appeals court blocks journalist's attempt to access AIG consultant reports

Rob Tricchinelli | Secret Courts | News | February 1, 2013

A federal appeals court Friday denied a journalist access to reports on American International Group (AIG) prepared by an independent consultant under an agreement with federal regulators for alleged securities law violations.

A three-judge panel of the U.S. Court of Appeals in Washington, D.C., unanimously reversed an earlier opinion granting journalist Sue Reisinger access to the documents.

Under a 2004 deal with the Securities and Exchange Commission, AIG agreed to pay restitution without admitting fault for the alleged violations. AIG had to hire an independent consultant to review its policies as part of the agreement, and the consultant was required to document its findings and conclusions.

In 2011, Reisinger requested access to the documents under both the common and law and First Amendment, which both AIG and the SEC opposed.

The federal district court granted Reisinger access under the common law, saying the reports were judicial records. The appeals court reversed the district court, holding that the consultant reports were neither judicial records nor public documents. The public therefore has no right to access them.

“The [consultant] reports are not judicial records subject to the right of access because the district court made no decisions about them or that otherwise relied on them,” according to the opinion written by Circuit Judge Janice Rogers Brown.

Without a judicial decision, the court said, “there is nothing judicial to record” and nothing subject to the public’s right of access.

“We are in the process of reviewing the court’s opinion to determine what options are available to us,” said Joshua Wheeler, a First Amendment scholar who represented Reisinger on appeal. “For now, all I can say is today’s decision does not alter our belief that the public interest would be greatly served by the release of the reports.”

The court observed that “the public has a fundamental interest in keeping a watchful eye on the workings of public agencies” but still denied Reisinger’s request.

“Nothing in the record suggests [the court in 2004] cared a whit about the results of the independent consultant’s investigation as long as AIG in fact initiated the investigation,” the court stated. “Disclosure of the reports would do nothing to further judicial accountability.”