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Appellate court strikes down policy of sealing legal memoranda

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  1. Court Access

    NMU         FIRST CIRCUIT         Secret Courts         Jun 13, 2002    

Appellate court strikes down policy of sealing legal memoranda

  • A federal panel’s ruling may give the Providence Journal access to memos filed by attorneys in the corruption trial of the Providence, R.I., mayor.

A federal appellate court ruled on June 12 that a district court policy that kept legal memoranda out of the case files in a high-profile racketeering case in Providence, R.I., was a violation of the public’s presumption of access to court records.

The U.S. Court of Appeals in Boston (1st Cir.) also ruled that the lower court must consider redaction as an alternative to sealing a record.

The issue was raised during the trial of Providence Mayor Vincent Cianci Jr., who was charged with corruption for running his office as a racketeering organization. The Providence Journal sought copies of the legal memoranda filed by the attorneys in the case, which sprung from a federal investigation known as “Operation Plunder Dome.”

The federal district court had an informal policy requiring clerks to give legal memoranda directly to the judge rather than filing the memoranda in the court file. This policy effectively eliminated any public access to the memoranda.

The Journal opposed the policy.

The trial judge issued an order that required the attorneys to file the memoranda under seal. But in an effort to make some memoranda available, the judge said he would release some of the memoranda if he felt that there was nothing in them that would harm the defendant’s right to a fair trial.

The Journal opposed the order because, even though some memoranda were released, the procedure violated the principle that court records are presumptively open to the public. Thus, the records should be sealed only if there is a compelling interest in sealing the record and there is no less restrictive alternative to sealing.

The Journal argued that even if there is sensitive information in the memoranda, the court should consider redaction before it seals a record. The trial judge refused to redact any documents.

The Journal appealed to the First Circuit, which ruled that the district court’s procedures were improper.

The court stated that access to legal memoranda in a criminal trial is subject to First Amendment scrutiny because they constitute material on which a court relies to determine the parties’ rights. The court then ruled that the district court’s standard practice of providing legal memoranda directly to a judge rather than filing it in the court record violated the presumption of access and was improper.

In considering the order to file all memoranda under seal until the judge had a chance to review them, the court found that such a procedure could be acceptable in a high-profile criminal case, relying on the decision in U.S. v. McVeigh from the U.S. Court of Appeals in Denver (10th. Cir.). But the court also stated that the trial court should not withhold the records for an unreasonably long period of time, nor may the court refuse to redact records in lieu of sealing an entire record.

The court found that it could not properly assess whether redaction or sealing was proper in this case because the trial court did not make any specific findings. The court ordered the trial court to “set a reasonable timetable” for determining which memoranda shall be public. With respect to any sealed document, the court must “enter specific findings as to the need for that restriction and the impracticality of redaction as an alternative to sealing.”

The Journal had also asked for access to digital audio and video evidence that was used at trial, but the court found that because of the technology used to present the information at trial, there was no way to reproduce it. The parties debated whether it was technologically feasible for the evidence to be replicated, and the trial court found that it was not feasible. The appellate court found that the trial court had not abused its discretion in making that finding.

(In re Providence Journal Co, Inc.) AG

© 2002 The Reporters Committee for Freedom of the Press

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