Contested plea agreement does not have to be disclosed

WASHINGTON, D.C.–In mid-December, a federal appeals court in Washington, D.C. unanimously held that the public has neither a First Amendment nor common law right of access to a plea agreement that does not lead to a guilty plea, because it is not a document filed in connection with a judicial proceeding.

Because the court found no right of access, the panel further found that the district court should have allowed the defendant to withdraw the agreement from the court’s docket once the plea negotiations fell through.

Hani El-Sayegh, a Saudi national who was facing deportation, signed a plea agreement with the government in June 1997. With El- Sayegh’s consent, the government moved to seal the agreement and any relevant portions of the upcoming hearing, asserting that the document contained sensitive information. The motion to seal was itself filed under seal, but notice of the motion was docketed.

The Washington Post and other media organizations opposed the sealing. In late July, before the court could rule on the media’s motion, El-Sayegh disavowed the agreement and pleaded not guilty. In September, on motion by the government, the court dismissed the indictment without prejudice.

After the media renewed their request for access to the motion, El-Sayegh moved to withdraw the motion from the court file. The government did not oppose El-Sayegh’s motion, but took no action to defend continued sealing. In October, the district court held that El- Sayegh failed to demonstrate a sufficient interest to overcome the public’s right of access to the document, and declined to determine whether the public’s right of access emanated from the Constitution or from common law.

The court reasoned that the First Amendment and federal rules of criminal procedure guarantee the public’s right of access to criminal trials, and that plea agreements that culminate in a guilty plea act as a substitute for a trial. In this case, the appellate court reversed, pointing out that the plea agreement was not filed with the court at the time a plea was offered, but was submitted only as an exhibit to the motion to seal, which itself was filed under seal. (U.S. v. El-Sayegh; Media Counsel: Steven Farina, Washington, D.C.)