NEWS MEDIA UPDATE · FOURTH CIRCUIT · Secret Courts · Aug. 4, 2005
Appeals court denies access to search-warrant affidavit
Aug. 4, 2005 · The government’s interest in protecting an ongoing investigation of Islamic charities and businesses in the aftermath of Sept. 11, 2001, justified sealing search warrant affidavits containing details of the investigation, the U.S. Court of Appeals in Richmond, Va. (4th Cir.) ruled Monday.
A three-judge panel accepted Magistrate Judge Theresa Buchanan’s reason for sealing the affidavits, although she did not voice the reason until after she sealed the documents, and refused to order the U.S. District Court in Alexandria, Va., to keep a public docket of search-warrant proceedings.
Rules requiring judges to base a decision to seal on specific factual findings and to state the reasons for rejecting alternative measures to sealing are “for the benefit of the court, not the public,” and the reasons for sealing the affidavits in this case are “patently apparent” from the documents themselves, Judge H. Emory Widener Jr. wrote for the court.
The appeals court’s decision “essentially allows the sealing of files with the wave of a hand,” said attorney Charles D. Tobin, who represented two newspapers that tried to get the affidavits unsealed.
“We have always understood that the purpose of a court’s sealing order is to put the public on notice of the specific reasons why the court feels the presumption of openness is overcome,” said Tobin, a partner at Holland & Knight in Washington, D.C. “We have never understood a sealing order to simply be a ministerial function for internal court benefit. That seems to be, however, what the Fourth Circuit is saying.”
His clients, The New York Times and Media General Inc., owner of the Tampa Tribune, have not yet decided whether to appeal. “We’re still studying the decision and weighing our options,” Tobin said.
In March 2002, federal law-enforcement officers applied for warrants to search businesses and charities in Northern Virginia as part of an ongoing antiterrorism investigation. In support of each application they submitted the same 100-page affidavit by a U.S. customs agent, describing the investigation. They also asked Buchanan to seal the affidavits because “disclosure ‘might jeopardize ongoing investigations,'” according to the opinion. Buchanan ordered the documents sealed “for the reasons in government’s motion,” Tobin said.
Under the Federal Rules of Criminal Procedure, affidavits filed in support of an application for a search warrant usually become part of the public case file after the warrant is executed and returned, Tobin said. In this case, however, reporters for The New York Times and the Tampa Tribune, who asked to see the affidavits after the searches were conducted, were denied access to the documents — and to the rest of the file, he said. A paralegal for Tobin’s law firm was also told she could not see the file, he said.
After Tobin and a partner, former Assistant U.S. Attorney James Rodio, also were denied access to the file — including Buchanan’s order to seal — they filed a motion to unseal the documents, Tobin said. At a May 2002 hearing on their motion, Buchanan said the clerk’s office had mistakenly denied public access to the file. She refused to unseal the affidavits, however, saying “it was clear and apparent from the affidavits that any disclosure of the information there would hamper an investigation,” according to the opinion.
Tobin then petitioned the district court to unseal the affidavits and to direct the clerk’s office to keep a public docket of search-warrant proceedings. He said he and Rodio had been shown a ledger book, kept behind the counter at the clerk’s office, that contained serial numbers and the words “sealed case” but no information as to what was in the docket. The district court dismissed the petition, prompting the Times and Media General to appeal to the Fourth Circuit. Fourteen media outlets, including The Reporters Committee for Freedom of the Press, filed a friend-of-the-court brief in support of the appeal.
In October 2003, Dow Jones & Co., publisher of The Wall Street Journal, asked Buchanan to release the affidavits because the government had admitted that changed circumstances no longer required the documents to be sealed in their entirety. After a hearing on the motion, Buchanan allowed a redacted version to be disclosed to the public, Tobin said.
Tobin said he was most troubled by the appeals court’s statement that requiring a judge to set forth specific reasons for sealing was done for the court’s, not the public’s, benefit.
“The audience for a sealing order is the public, not the court,” he said.
In a concurring opinion, Judge M. Blane Michael noted that Buchanan erred in failing to justify her decision to seal the affidavits until after the media filed a motion to unseal them. The error was harmless, however, “because the judge subsequently explained that the sealing was justified for reasons that were apparent to her at the time the order to seal was entered,” Michael wrote.
Tobin said he took comfort in the fact that Michael “clearly understood that after-the-fact justifications are no substitute for making the specific findings at the time somebody asks to seal the file.
“I remain concerned, though, that even Judge Michael felt that the one-liner of justification given here would be sufficient,” Tobin said.
(Media General Operations, Inc. v. Buchanan; Media counsel: Charles D. Tobin, Holland & Knight LLP, Washington, D.C.) — KK