Appeals court tightens public access to search warrants

Rob Tricchinelli | Secret Courts | News | September 13, 2012

A federal appellate court held last week that there is no First Amendment right for the media to access police and court documents filed in connection with search warrant proceedings.

The ruling by Judge Jane Roth, writing for a three-judge panel of the U.S. Court of Appeals in Cincinnati (6th Cir.), does not absolutely bar media organizations from getting access to search warrant proceedings. Instead, media groups must argue “that the public’s right to know outweighs interests of privacy in sealing a particular document.”

The case arose out of the ongoing investigation into businessman Timothy Durham, who was suspected of employing the Akron, Ohio-based Fair Finance Company to carry out a Ponzi scheme and defraud investors out of millions of dollars. Durham was convicted in June on 12 counts of felony fraud related to the same allegations.

Federal investigators obtained a warrant in November 2009 and searched Fair Finance Company’s offices. A federal judge in Ohio sealed the case file, which included the warrant itself and an inventory of seized items.

The Akron Beacon Journal and The Indianapolis Star later requested in federal court that the documents be unsealed, which was denied. The newspapers appealed to the Sixth Circuit. Although portions of the file were unsealed while the appeal was pending, the appellate court still issued a ruling, considering the likelihood that a similar issue could arise in the future.

To support its decision, the court noted a long history of confidentiality and secrecy surrounding search warrant proceedings.

The court also analyzed the effects of public access. The parties did not dispute that public access to search warrant documents before the search is performed could harm criminal investigations. The court went a step further, though, concluding that harm can occur by releasing documents even after the search is performed.

The court reasoned that the documents could unmask confidential witnesses, reveal government’s prosecution strategies, alert suspects to other potential searches or embarrass innocent people.

Because of this harm, the court concluded that there was no right of access to search warrant documents under the First Amendment, even after the government performed the search and inventoried its findings.

The court recognized the limits of its ruling, saying that a media organization could still seek search warrant documents under a “common law right of access,” by arguing that the public interest in such a document outweighed the privacy interests at stake.

A 2011 ruling by the U.S. Court of Appeals in San Francisco (9th Cir.) addressed a similar issue, holding that the public has a common law right of access to search warrant documents after an investigation concludes. The Ninth Circuit did not decide the First Amendment issue.

In that case, the Ninth Circuit concluded that warrant materials have “historically been available to the public” after an investigation ends­, whereas the Sixth Circuit here observed that access to those documents is typically “left to the sound discretion” of a court.

This ruling applies only in the Sixth Circuit, which spans Kentucky, Michigan, Ohio and Tennessee.

Related Reporters Committee resources:

· Secret Justice: Warrants and Wiretaps: Search warrants