M.G. v. Hestrin

Amicus brief filed by the Reporters Committee for Freedom of the Press and 25 media organizations

Court: California Court of Appeal, Fourth Appellate District, Division Two

Date Filed: Jan. 31, 2020

Update: On Oct. 21, 2020, the appeals court reversed and remanded the trial court’s order denying Miguel Guerrero’s motion to access records specifically related to a wiretap of his communications. The appeals court ruled that the lower court applied the wrong standard in reviewing the plaintiff’s motion under California’s wiretap statutes. However, the appeals court declined to address whether the public has a qualified right of access to the wiretap materials under the First Amendment.

Background: In 2015, Riverside County, California, courts authorized 640 wiretap orders — three times as many wiretaps as did courts in any other state or federal jurisdiction. This accounted for approximately 20% of all wiretap orders in the United States.

Miguel Guerrero, a retired California Highway Patrol officer with no criminal record, was the subject of one of Riverside County’s wiretap orders in 2015, but he was never notified of the surveillance after the order expired, as is required under California law.

After finding out about the wiretap from family and friends, who had been notified that their communications had been intercepted, Guerrero sought access to the records authorizing the wiretap. He argued that there is a First Amendment right to access wiretap orders and related documents once the investigation to which the wiretap pertained had ended, not just in his case but more broadly. Additionally, he filed a motion to access the records specifically related to his wiretap. Guerrero also argued that he was entitled to the wiretap records under a California statute.

The Riverside County district attorney, the defendant in this case, argued that Guerrero was not entitled to the wiretap records under California statute or the First Amendment. The Riverside County District Attorney argued that the First Amendment right of access does not apply to sealed wiretap documents. The Superior Court of California County of Riverside agreed and denied Guerrero access to the wiretap records.

In April 2019, Guerrero appealed the case to the California Court of Appeal, Fourth Appellate District, Division Two.

Our Position: The appeals court should reject the lower court’s decision, which incorrectly held that there is no First Amendment right of access to sealed wiretap records after law enforcement closes an investigation.

• Public access to wiretap materials post-investigation is vital to government accountability. Utility and history — the two factors courts consider in determining the First Amendment right of access — demonstrate that there is a constitutional right of access to wiretap materials post-investigation.
• Government surveillance without proper judicial and public oversight is especially damaging to the news media, as it can have a chilling effect on reporter-source relationships. When the government is allowed to wiretap communications without public oversight, sources are discouraged from disclosing sensitive and newsworthy information.

Quote: “Reporters often rely on sources who do not want their identities to be publicly revealed to obtain important information about matters of public interest. When the public is denied access to wiretap materials, even after the investigation to which they pertain has concluded, reporter-source communications are chilled and corroded, stifling newsgathering and making it more difficult for the public to stay informed.”