As followers of the Reporters Committee’s work know, we think it’s important that the press and public have access to judicial records that document the government’s efforts to investigate crime. Those materials — warrants, surveillance orders and the like — play a critical role in criminal justice reporting; they also reflect the exercise of important public powers. As a result, as a number of federal courts have observed, transparency is vital in this context because it allows the public to “ensure that judges are not merely serving as a rubber stamp for the police.”
Last year, with help from Reporters Committee attorneys, the Los Angeles Times moved to unseal warrant materials from the Justice Department’s closed insider-trading investigation of Sen. Richard Burr (R-N.C.). A federal court denied that motion on the theory that the investigation — which the senator himself had acknowledged — had to remain under wraps so long as the government refused to confirm or deny whether there had been one. That dangerous position could have badly undercut the public’s access to criminal-investigative materials in the District of Columbia. Thankfully, in a win for transparency, the U.S. Court of Appeals for the District of Columbia Circuit just overturned it.
Reporters Committee attorneys, including this newsletter writer, had argued that the district court ignored the key facts of the case — that the interest in sunlight was at its apex in a case involving a sitting public official, and that the government was attempting to conceal the existence of an investigation that the entire newspaper-reading world already knew about. The D.C. Circuit agreed, finding that the lower court erred by failing to reckon with the “powerful public interest in learning of a sitting Senator’s potential violation of insider-trading laws,” as well as by discounting “the extensive media reporting relating to the Justice Department investigation.”
The matter will now return to the district court for a fresh legal analysis that takes stock of those facts — as well as yet more public reporting on the Burr investigation that came out after the appeal was filed. (The district court will also have to take another look at our objection that it was fundamentally unfair to let the government file secret briefs in this case.) We look forward to continuing to advocate for the rights of the Times — and the public — to see what these records have to say. In the meantime, we’re grateful for the appellate court’s strong reaffirmation that the press and the people have a right to expect transparency from their government in this setting.
The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary and Technology and Press Freedom Project Legal Fellow Gillian Vernick.