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Asked and Answered

Answers are not meant to be relied upon as legal advice specific to any reader’s situation, but are for informational…

Answers are not meant to be relied upon as legal advice specific to any reader’s situation, but are for informational purposes to help journalists understand how the law affects their work.

Q: Can I get access to documents exchanged by parties to a lawsuit during discovery?

A: Generally, access is only possible if the documents have been submitted to the court, or if a party is not subject to a protective order and chooses to give them to you.

More specifically, whether the public has a right to review records produced during discovery proceedings — or the procedures by which parties to legal actions ask each other to produce documents, sit for a deposition or answer formal written questions — depends on a number of factors. The main considerations are the court in which the case was litigated, whether the discovery materials were filed with the court and whether a protective order allowing the parties to designate certain documents as confidential and thus shielded from public view has been entered in the case.

Courts nationwide recognize a right to inspect and copy public records and documents, including judicial records and documents. However, the U.S. Supreme Court ruled in Seattle Times Co. v. Rhinehart that “pretrial depositions and interrogatories are not public components of a civil trial. Such proceedings were not open to the public at common law, and, in general, they are conducted in private as a matter of modern practice.”

Once discovery documents are filed in court, the analysis changes, although courts disagree about which discovery documents filed in court proceedings are judicial records subject to a presumption of access. The issue arises in this context because parties are often required to submit documents they obtained during discovery to the court in support of their motions, or requests for a judicial decision on a particular matter. For example, parties often ask a judge to decide that there are no material factual disputes in the case that would need to be decided by a jury, so the judge can decide the case by applying the law to the undisputed facts. The party asking the court to dismiss the case in this situation, however, would have to present to the court for review these undisputed facts, which are often obtained during discovery and included in sworn statements or other documents submitted with and as support for the motion asking the court to dismiss the case.

Whether the court relies on this discovery material in making its decision often determines whether the documents are judicial records to which the right of public access attaches. In some jurisdictions, the presumption of openness applies to any document physically filed with the court and attached to a motion. Other jurisdictions, however, distinguish between documents merely physically attached to a motion and those that are actually relevant and considered by the court in deciding whether to grant or deny the motion. In these states, documents having no relevance to the court’s decision-making process are not subject to a presumptive right of access even though they were filed with a motion.

In most jurisdictions, there is no general right of access to discovery materials that are not filed with the court. However, a New Jersey appellate court recently rejected that blanket proposition and sent the case, Drinker Biddle & Reath LLP v. New Jersey Department of Law & Public Safety, back to the trial court to determine whether the third party seeking access to unfiled discovery materials had any interest in their subject matter and to balance any such interest against the parties’ interest in preventing disclosure. Moreover, in lawsuits where the government is a party, you may seek access to discovery documents through the relevant public records law.

It is important to keep in mind, however, that federal courts often approve protective orders keeping discovery material confidential under Rule 26(c) of the Federal Rules of Civil Procedure if a party can show “good cause” — for example, protecting a trade secret or other confidential information. Also, some courts have found that members of the media may not challenge protective orders that apply to unfiled discovery documents because the journalists, who do not have a right to this material, cannot demonstrate sufficient harm caused by the protective order to warrant their participation in the case.

Q: I need those records now! What can I do to speed up agency processing of my open records request?

A: One strategy is to request “expedited review” in your initial request letter. At the federal level, you may be able to obtain expedited processing by demonstrating a “compelling need” for the information. For journalists, the Freedom of Information Act defines “compelling need” as a situation where the requester is “primarily engaged in disseminating information” and there is “urgency to inform the public concerning actual or alleged Federal Government activity.” The mere fact that you are a journalist writing a story will generally not, on its own, suffice as “compelling need.” You must make a strong case for expedited review — in practice, agencies often deny such requests.

Some agencies further define what constitutes “urgency” in their FOIA regulations. For example, the State Department recognizes such “urgency” where the information sought is related to “a breaking news story of general public interest.” A D.C. federal appeals court has held that there are at least three relevant factors to be considered in whether “urgency” exists.

First, your request must relate to “a matter of current exigency to the American public,” so you should identify any relevant news media coverage, Congressional action, or statements made by federal officials or legislators. As the matter must be of “current” importance, demonstrate that your request relates to a topic of ongoing public concern or discussion. For example, a federal court found “current exigency” where a request was related to ongoing controversy — as demonstrated by timely news clippings — around then-debated amendments to the Patriot Act, but that it did not exist where a request related to records about Princess Diana’s death and was made two to three years after her passing.

Second, you must show that a delayed response “would compromise a significant recognized interest.” You should cite to the public benefit in receiving the information quickly, such as its contribution to a current public debate or any harm to the public that could result from delayed release. For example, a federal court found refusing to grant expedited review would compromise such interests where a request sought information related to an ongoing FDA investigation into the potential connection between an anti-epileptic drug and suicidal thoughts in those taking the drug. There, two recognized interests were informing the public debate on the topic and the potential physical harm to those taking the drug.

Third, your request must “concern federal government activity,” so you should identify a federal government action, investigation, or decision to which your request relates. Courts have interpreted “concern” broadly, holding that information that was submitted to an agency by private companies “concerned” an act of the federal government where the companies had done so in response to an agency-initiated inquiry.

You may also be able to obtain expedited processing for a federal FOIA request “in other cases determined by the agency.” This requires looking up the agency’s FOIA processing regulations — which can usually be found on the agency’s FOIA homepage — for expedited review requests.

Your request for expedited review must be accompanied by a statement certifying that it is true and correct to the best of your knowledge and belief.

The agency must notify you of whether it will grant expedited review within 10 days. If it grants your request, then the agency must give it priority and process it “as soon as practicable.” If it denies your request, you have the right to appeal the decision to the agency, and the agency must then expeditiously consider your appeal.

At the state level, the bases for which faster review is available — if at all — vary from state to state, requiring individual reference to the state open records laws. This information, organized by state, is available in our Open Government Guide, which can be accessed on our website. Some states, like the federal FOIA, provide specific grounds on which expedited processing is available. For example, in Utah, you may seek faster review by demonstrating that your request benefits the public, and anyone requesting records for a story for publication or broadcast is presumed to be acting for the public’s benefit. However, in many states, the open records laws are silent on this issue. In this case, you may still wish to include a desired response time in your request, although it may not guarantee quicker processing. You should also take note of any mandatory agency response times established by law, as, for example, Kansas law, which does not provide for expedited review, still requires that requests must “be acted on as soon as possible,” and no later than three business days after receipt of the request.

Q: I have a source who wants to tell me what has been going on in a secret grand jury proceeding. What legal issues could be involved in reporting on this?

A: Unlike civil and criminal trials, which have a long history in the United States of being open to the public, grand jury proceedings are held in secret. Indeed, the Handbook for Federal Grand Jurors, published by the Judicial Conference of the United States, admonishes those serving on federal grand juries that “the law imposes upon each grand juror a strict obligation of secrecy.” Moreover, the Federal Rules of Criminal Procedure — the rules that govern how criminal trials are conducted in federal court and have the force of law — specifically prohibit grand jurors, interpreters, court reporters, attorneys for the government, and any member of the limited subset of people to whom grand jury materials may be disclosed from breaching this confidentiality. Knowing violators of the secrecy rule can be punished with contempt of court.

The reasons for this are several, and include a desire not to alert the targets of grand jury investigations, and the prevention of damaging a person’s reputation unnecessarily if they are eventually exonerated by the investigation.

The role of a grand jury is to evaluate whether there is enough evidence against an individual to establish that it is more likely than not that the person committed a crime. If a grand jury so determines, they may formally accuse an individual of committing a crime in the form of an indictment.

The Supreme Court in 1992 in U.S. v. Williams has described the relationship between the grand jury and the judicial branch as one which is held “at arms-length.” Grand juries in the federal system are not presided over by a judge, and witnesses before the grand jury may not be accompanied by their lawyer. In fact, the only people who may be present while a grand jury is in session are “attorneys for the government, the witness being questioned, interpreters when needed, and a court reporter or an operator of a recording device.” Fed R. Crim Pro. 6(d)(1). Despite this distance, there are some ancillary matters involved with grand juries that may come directly before a court. The U.S. Court of Appeals in Washington, D.C., in 1998 has affirmed that the media does not have a First Amendment right to attend hearings on matters related to the grand jury (for example, hearings to quash subpoenas to appear before a grand jury).

If a person involved in a grand jury proceeding — be they a juror, attorney, or court reporter — seeks to disclose to a reporter “a matter occurring before the grand jury,” they could face contempt charges. As a journalist, if you report information that was given to you by a grand jury source sworn to secrecy on condition of anonymity, you could potentially be subpoenaed to identify that source. Whether you would be required to reveal your source will depend on whether the jurisdiction you are in has a shield law, and whether the protection it offers is qualified or absolute.

With regard to liability for a journalist who reports these information disclosed to a grand jury, the normal concerns for libel hold true. Remember that a grand jury investigation is a very early stage in the criminal justice process. The target of a grand jury investigation has no right or ability to challenge evidence presented against them in the grand jury; it is a once sided process, with the government presenting all evidence. For a reporter, this means that allegations put forth in a grand jury proceeding should not be considered true simply because they were made there.

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