A federal judge on Wednesday modified his previous blanket ban on the disclosure of investigation records relating to the January mass shooting in Tucson, Ariz., that severely injured Rep. Gabrielle Giffords, D-Ariz.
In response to a state records request filed by The Washington Post, the U.S Attorney's Office asked the federal court to block the public release of documents related to the investigation held by the Pima County Sheriff's Office. The federal prosecutors offered in their motion to review the documents and release any appropriate materials to the public.
On March 23, the federal court issued a protective order to withhold any materials relating to the investigation into Jared Lee Loughner, who is accused of carrying out the shooting rampage, which killed six and wounded 13. Prosecutors said the court's order absolved them of any obligation to review the records for public disclosure.
Attorneys for the Post, Phoenix Newspapers Inc. and KPNX Broadcasting Co. then requested the protective order be modified, asking the court to order the Attorney's Office to carry out its promised review of the materials and release redacted records containing information that did not need to be kept off-the-record.
“The Government reversed course and refused to conduct its promised review and redaction of the records, thereby blocking public access to records that the Government admits the public is entitled to see now,” attorneys for the news organizations said.
The news organizations also argued the blanket protective order, as interpreted by the U.S Attorney's office, was overbroad and violated Arizona’s public records laws.
“The Government’s construction of the Order creates a wall of secrecy that hides even those records that are indisputably subject to public disclosure — a result that intervenors submit was never intended when the Court entered the Order,” the motion says. “The Order constitutes an unauthorized, unsustainable and extraordinary exercise of federal judicial power to enjoin a state officer from publicly releasing any public records — before anyone has even reviewed them for possible disclosure.”
Yesterday, U.S. District Judge Larry Burns denied the media's request, but modified the protective order to allow the U.S. Attorney’s Office to release redacted materials that do not violate privacy and confidentially rights. If the prosecutors elect to release documents, they must first be given to the court and the defendant’s counsel.
“The Court finds that, pursuant to the Government’s initial offer to The Washington Post, it may if it chooses, release those reports, files or materials that do not implicate the privacy, fair-trial rights, and publicity concerns that the Court has identified,” Burns said.
David Bodney, attorney for the Post, called the decision “a positive development” and is hopeful about increased access to the investigation reports.
“This is a step in the right direction,” Bodney said. “We are reviewing the ruling, but viewing it as positive. I have spoken with the U.S. Attorney, and I am hopeful more records from law enforcement will be made public."
Burns said in his decision that the records are not subject to Arizona’s state public records laws because the investigation took place in conjunction with the federal government and is in relation to the federal case against Loughner. In addition, the investigation reports also did not need to be disclosed because they had not become judicial records, to which a presumptive right of access attaches, he said.
Bodney said the Post is reviewing the judge’s decision and has not yet decided whether to appeal.