Court denies access to material previously released on Internet

NEW JERSEY–In late August, a unanimous federal appeals panel in Philadelphia (3d Cir.) affirmed a New Jersey district court ruling that denied the press access to sentencing records and proceedings, even though material relating to them was previously posted on the Internet.

The court reasoned that secrecy was warranted because grand jury material was implicated. The court also denied a press request for access to redacted copies of briefs and to nonsecret aspects of the hearing, holding that it would be “highly impractical and inefficient and would create a circus-like ‘revolving door’ hearing.”

Although it acknowledged the importance of public access to proceedings and documents that allege government misconduct, the court said that there is no presumptive First Amendment or common law right of access to grand jury material. According to the court, the press needed to show that its need for access outweighed the public interest in grand jury secrecy, “a burden the newspapers would be unlikely to carry.”

The controversy arose when the government filed in court and posted on its Internet website a memorandum related to the sentencing of two defendants who were convicted in October 1996 of participating in a state lottery kickback scheme. The memorandum contained allegations of criminal conduct involving the defendants and other individuals who were not charged with any crimes.

The defendants and the uncharged individuals objected, claiming that the government violated federal rules that require documents and proceedings that implicate secret grand jury material remain secret. The district court sealed the memorandum, ordered the parties to file briefs under seal and scheduled a closed hearing to determine whether the government had violated federal rules.

The (Newark) Star-Ledger, the Austin-American Statesman and the Dallas Morning News intervened in the action to seek access to the documents and proceedings and, during a hearing, contended that they had a First Amendment and a common law right of access. The parties and uncharged individuals opposed public access. The district court denied the media’s request for access, but stated that after the hearing it would make a transcript available to the extent allowed by federal rules.

The appellate court also rejected a press argument that it had a right of access to the briefs and the hearing because the First Amendment guarantees access to grand jury matters to the extent that that information has already been publicly disclosed. Although the court acknowledged that the press could not be barred from disclosing any information contained in the original sentencing memorandum, it stated that the district court properly acted to prevent further disclosure of secret material. (U.S. v. Smith; Media Counsel: Keith Miller, Newark)