The opinion of the court was delivered by: Colleen Kollar-kotelly, United States District Judge
Pending before this Court are matters of confidentiality remanded to it by the Three-Judge District Court,*fn1 McConnell v. FEC, No. 02-582 (D.D.C. Jan. 16, 2003) (order remanding to a single-judge district court matters of confidentiality and the proposed Press Intervenors' motion to make public the full record), relating to the consolidated action challenging as unconstitutional the Bipartisan Campaign Reform Act of 2002, Pub. L. No. 107-155, 116 Stat. 81 (2002) ("BCRA"). After considering both party and non-party objections, the Three-Judge District Court's Agreed Protective Order, McConnell v. FEC, 02-582 (D.D.C. Aug. 13, 2002) (order to permit the parties to file certain designated documents as "Confidential" or "Counsel Only"), the Three-Judge District Court's oral order regarding the unsealing of protected documents, see Tr. at 387-96 (McConnell v. FEC, 02-582 (D.D.C. Dec. 5, 2002) [hereinafter "Oral Order"] (oral order to consider unsealing documents filed pursuant to the Agreed Protective Order)), and the applicable law, the Court shall unseal and make public the opinions of the Three-Judge District Court and the vast amount of information contained therein supporting the Court's conclusions. However, the Court will not unseal any part of the record originally filed under seal that is not contained in the opinions.
The Order accompanying this memorandum opinion will articulate the specific obligations of the parties. Essentially, the opinions of the Three-Judge District Court will be disclosed in their entirety, save for several narrow exceptions.*fn2 In addition, the evidence cited or quoted by the Three-Judge District Court in its opinions shall be disclosed to the public. This evidence is highly probative to and supportive of the opinions of the Three-Judge District Court. Accordingly, this material will be disclosed either as it appears quoted in the Court's opinions or, where the Court relies on a document to support a proposition, but does not quote directly from that document, from the probative portion of the document itself. Thus, only the portion of the cited document relied upon by the Three-Judge District Court need be disclosed, and only to the extent indicated in the Court's opinions.*fn3 In addition, the parties shall unseal those sealed portions of their briefs where the Court has already ordered disclosure consistent with this Memorandum Opinion and the accompanying Order. As a result, the parties will only be required to re-file with the Court on the public record material relied upon by the Three-Judge District Court in its opinions.*fn4
This Court has determined that in certain narrow instances, non-parties to this proceeding are entitled to remain confidential under United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). Accordingly, certain citations in my Findings of Facts, see Findings ¶¶ 1.71.3, 1.74.3, 1.78.1, and in Judge Leon's Findings of Fact, see Findings ¶ 34, 238, 240, have been redacted and the non-parties have been characterized in such a way as to protect their privacy interests. One additional document in my Findings of Fact is cited, but is to remain under seal. See Kollar-Kotelly's Opinion at Findings ¶ 220.127.116.11. In addition, Judge Henderson cites to portions of Defendants' Amended Proposed Findings of Fact, Defs.' Amended Proposed Findings at 20-134, 153, 192, 214-224 and 238, and Defendant Intervenors Proposed Findings of Fact, Def. Intervenors' Proposed Findings at 6-12, 37-38, in her Findings of Fact. Although the parties will be required to disclose these cited pages, the following paragraphs shall be redacted to protect the interests of non-parties under Hubbard: Defendants' Amended Proposed Findings of Fact at ¶¶ 95; 100; 123, lines 5, 6, and line 7 through the identification of the sealed document; 142; 164; 676 and Defendant Intervenors' Proposed Findings of Fact at ¶ 27, line 11, beginning with the identification of the document, and continuing until the end of the finding. Judge Henderson, in her opinion, has indicated in footnotes the material that is sealed with a reference to this Memorandum Opinion. Therefore, to determine the exact portions of the record that are sealed and cited by Judge Henderson in her opinion, this Memorandum Opinion shall govern.
On March 27, 2002, President George W. Bush signed BCRA into law, the first major overhaul of the Federal Election Campaign Act ("FECA") since the 1974 Amendments and their revision following Buckley v. Valeo, 424 U.S. 1 (1976). That very same day, NRA Plaintiffs*fn5 filed suit in this Court, challenging BCRA as unconstitutional. See generally NRA Pls.' Compl. (NRA v. FEC, 02-581 (D.D.C. Mar. 27, 2002)). On the following day, this Court issued an order pursuant to the statutory grants of authority in Section 403(a)(1) of BCRA and 28 U.S.C. § 2284 granting NRA Plaintiffs' application for a three-judge district court. See NRA v. FEC, No. 02-581 (D.D.C. Mar. 28, 2002) (order). Between March 27, 2002, and May 27, 2002, ten other cases were filed with the Court. All of these cases, including NRA v. FEC, No. 02-581 (D.D.C.), were consolidated with McConnell v. FEC, No. 02-582 (D.D.C. 2002), and assigned to the same Three-Judge District Court Panel.
In an effort to "expedite to the greatest possible extent the disposition" of this consolidated action, 2 U.S.C. § 437h(a)(4) (note); BCRA § 403(a)(4), on August 13, 2002, the Three-Judge District Court signed an Agreed to Protective Order. McConnell v. FEC, 02-582 (D.D.C. Aug. 13, 2002) [hereinafter "Agreed Protective Order"] (order). The Order permitted the parties to exchange documents during discovery and file certain designated documents with the Court as "Confidential" or "Counsel Only," Agreed Protective Order ¶¶ 2-7, thereby avoiding prolonged wrangling over discovery requests. The Three-Judge District Court, however, retained discretion to review and modify the Agreed Protective Order. Id. ¶ 11 ("All Confidential Information that is filed with the Court . . . shall be filed under seal and kept under seal until further order of the Court.") (emphasis added); id. ¶ 12 ("This Order shall not preclude any party from seeking a ruling from the Court regarding the validity or propriety of any claim of confidentiality asserted by the producing entity."); id. ¶ 13 ("Nothing in this Order shall prevent or in any way limit or impair the right of counsel for the parties to file a motion to unseal portions of the record for purposes of this litigation."); id. ¶ 25 ("Notwithstanding anything to the contrary that maybe set forth herein, the parties understand that the Court shall retain the authority to modify this Order upon good cause shown.").
On December 5, 2002, the Three-Judge District Court orally notified the parties at the oral argument of its intention to unseal the entire record, see Tr. at 387-96, unless specific written objections were filed with the Court delineating the "legal basis" in support of keeping designated portions of the record sealed. Id. at 396 (Kollar-Kotelly, J.). Such objections were expected to be consistent with the "stringent" presumption of disclosure. Id. at 396 (Kollar-Kotelly, J.). Counsel for the litigants were directed to notify third parties of the Three-Judge District Court's intention to unseal the record as the parties would be better able to identify them than the Court; particularly given the voluminous record confronting the Court and the expedited nature of the proceedings. See id. at 387-96. Following the Oral Order, on January 16, 2003, the Three-Judge District Court issued an order remanding all matters of confidentiality to this Court. McConnell v. FEC, No. 02-582 (D.D.C. Jan. 16, 2003) (order remanding to a single-judge district court matters of confidentiality and the proposed Press Intervenors' motion to make public the full record). Accordingly, this Court is vested with the authority to rule on all objections to unseal the record filed with the Three-Judge District Court.
In Nixon v. Warner Communications, Inc., 435 U.S. 589 (1978), the Supreme Court recognized a common law right to view court documents. Nixon, 435 U.S. at 597 ("It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."). However, the right of access is far from absolute. See id. at 598 (listing various exceptions to the general rule of openness). Moreover, Nixon observed that the decision as to access "is one best left to the sound discretion of the trial court." Id. at 599. This discretion should be "exercised in light of the relevant facts and circumstances of the particular case." Id. Although much of the available case law on the subject of openness arises in the criminal context, the "presumption of openness" applies in the civil context as well. See Johnson v. Greater Southeast Cmty. Hosp., 951 F.2d 1268, 1277 (D.C. Cir. 1991). At least in the criminal context, this "presumption of openness maybe overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Court of California, 464 U.S. 501, 510 (1984).
The D.C. Circuit gave form to the common law right to access in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980), which established a six-part balancing test. See Hubbard, 650 F.2d at 317-22. As restated in Johnson v. Greater Southeast Community Hospital, 951 F.2d 1268 (D.C. Cir. 1991), these six factors include:
(1) the need for public access to the documents at
issue; (2) the extent to which the public had access
to the documents prior to the sealing order; (3) the
fact that a party has objected to disclosure and the
identity of that party; (4) the strength of the
property and privacy interests involved; (5) the
possibility of prejudice to those opposing
disclosure; and (6) the purposes for which the
documents were introduced.
Johnson, 951 F.2d at 1277 (citing Hubbard, 650 F.2d at 317-22). Hubbard also recognized that "where both the public interest in access and the private interest in non-disclosure are strong, partial or redacted disclosure [may] satisfy both interests." Hubbard, 650 F.2d at 324-25. It is pursuant to this framework that the Court must analyze the various objections registered by each party. In doing so, the Court exercises the broad discretion it is provided under the law.
Pursuant to the Three-Judge District Court's December 5, 2002, Oral Order, the parties and non-parties to the consolidated action were put on notice that all documents subject to the Agreed Protective Order would be unsealed, unless specific objections were raised. See Tr. at 387-96. As a preliminary matter, it should be noted that the level of specificity in the objections filed by both parties and non-parties in the eleven consolidated cases ranges widely.*fn6 Moreover, the sheer volume of the documents filed with the Court — some 100,000 pages by the Court's own conservative estimation — further complicates this matter. Faced with these challenges, the Court has decided that the most prudent course is to begin with (A) a careful examination of the Agreed Protective Order, followed by (B) a close analysis of the objections raised under 2 U.S.C. § 437g(a)(12)(A), and finally, (C) a review of the common law right of access to judicial proceedings. The Court will then consider (D) each party's objections to the common law right of access in turn, based on its status as (1) a party or (2) a non-party to these proceedings.
A. The Agreed Protective Order
As noted above, the Court retained considerable discretion to modify and unseal the record under the Agreed Protective Order. The Order, by its clear and plain terms, puts both parties and non-parties, alike, on notice: "Notwithstanding anything to the contrary that may be set forth herein, the parties understand that the Court shall retain the authority to modify this Order upon good cause shown." Agreed Protective Order ¶ 25.
Despite the patent terms of the Order, many of the parties contend that the Court should not compel the disclosure of documents filed under seal. See, e.g., Mot. of NRTWC to Maintain Docs. Under Seal at 4-5 (contending that NRTWC's reliance on the Agreed Protective Order precludes disclosure of certain documents). With regard to Plaintiffs, the Court finds this argument, by itself, without merit. Plaintiffs willfully challenged the constitutionality of BCRA and placed evidence before this Court to adjudicate their claims. Moreover, as litigants in this case, they should have been well-aware of the terms of the Agreed Protective Order. While the terms of the Agreed Protective Order, alone, do not compel the disclosure of sealed documents, its terms are certainly not a barrier to disclosure. At the same time, the binding law of this circuit, handed down, inter alia, in Hubbard, requires the Court to consider the nature of each document, mindful of "this country's strong tradition of access to judicial proceedings." Hubbard, 650 F.2d at 317 n. 89.
Indeed, in Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996), the Court of Appeals for the Sixth Circuit admonished a district court for failing to review the nature of documents filed under an agreed protective order. Proctor & Gamble, 78 F.3d at 222, 227. The Sixth Circuit observed that under the agreed protective order, "[t]he parties and not the court" were determining which documents would remain under seal, id., contrary to the "long-established legal tradition which values public access to court proceedings," id. at 227 (internal quotation marks omitted). Consequently, the Sixth Circuit vacated the protective order, explaining that a "District Court cannot abdicate its responsibility to oversee the discovery process and determine whether filings should be made available to the public." Id.
This Court is left to conclude that Plaintiffs' claims of reliance on the Agreed Protective Order are without merit. Under their logic, each litigant would be free to decide for the Court what information is or is not confidential. Such a conclusion would defy the principles laid down in Nixon v. Warner and is contrary to the Court's prerogative explicitly stated in the Agreed Protective Order.
On the other hand, the Court is sensitive to the unique concerns of non-parties to this litigation. Although the terms of the Agreed Protective Order are no less plain when read by a non-party, these individuals or entities were brought into this proceeding by the parties to provide evidence — acquired, it appears, based on assurances of confidentiality — and clearly have a greater privacy interest than those here by their own volition. The status of nonparties, alone, does not shield their objections from review by the Court under the principles laid down in Hubbard; however, the Court is cognizant of their unique interests and rights.
B. 2 U.S.C. § 437g(a)(12)(A) Objections
Various parties — namely the AFL-CIO Plaintiffs,*fn7 Chamber of Commerce Plaintiffs,*fn8 several McConnell Plaintiffs,*fn9 and the FEC Defendant — object to the disclosure of certain documents, purported to fall under the auspices of 2 U.S.C. § 437g(a)(12)(A). Joint Statement Regarding Confidentiality of 2 U.S.C. § 437g(a)(12)(A) Materials by Pls. AFL-CIO, Chamber of Commerce and Other Pls. and Def. FEC at 4 [thereinafter "Joint Statement"]. According to these parties, certain contested documents "constitute part of the non-public administrative record in a closed FEC enforcement proceeding, Matters Under Review ("MURs") 4291, et. al., and are subject to the decision in AFL-CIO v. FEC, 177 F. Supp.2d 48 (D.D.C. 2001)." Id. at 1. In AFL-CIO v. FEC, Judge Gladys Kessler held that the disclosure of investigative files at the conclusion of an administrative enforcement proceeding was "arbitrary, capricious, and contrary to law." AFL-CIO, 177 F. Supp.2d at 59-62. As a result, the FEC was prohibited from disclosing information directly from its investigative files to the public. Therefore, Plaintiffs argue that this Court is precluded from releasing the contents of the same investigative files in this proceeding.*fn10
The plain language of Section 437g(a)(12)(A) prohibits the FEC from disclosing information from its investigative files, developed during an administrative enforcement proceeding. Specifically, the statute states:
Any notification or investigation made under this
section shall not be made public by the Commission or
by any person without the written consent of the
person receiving such notification or the person with
respect to whom such investigation is made.
2 U.S.C. § 437g(a)(12)(A). Section 437g(a)(12)(A) is implemented by 11 C.F.R. § 111.21(a), which provides that:
Except as provided in 11 C.F.R. § 111.20, no
complaint filed with the Commission, nor any
notification sent by the Commission, nor any
investigation conducted by the Commission, nor any
findings made by the Commission shall be made public
by the Commission or by any person or entity without
the written consent of the respondent with respect to
whom the complaint was filed, the notification sent,
the investigation conducted, or the finding made.
11 C.F.R. § 111.21(a). In In re Sealed Case, the D.C. Circuit held that "both 2 U.S.C. § 437g(a)(12)(A) and 11 C.F.R. § 111.21(a) plainly prohibit the FEC from disclosing information concerning ongoing investigations under any circumstances without the written consent of the subject of the investigation." In re Sealed Case, 237 F.3d 657
, 666-67 (D.C. Cir. 2001). Moreover, in AFL-CIO, Judge Kessler determined that Section 437g(a)(12)(A)'s protections do not lapse once an investigation ends. AFL-CIO, 177 F. Supp.2d at 56. According to Judge Kessler's opinion, the privacy interest of an innocent accused actually strengthens the need for confidentiality. Id.
The facts of this proceeding, however, are readily distinguishable from both In re Sealed Case and AFL-CIO. Plaintiffs' purported Section 437g(a)(12)(A) documents can be divided into two categories: (1) documents filed with the Court by AFL-CIO Plaintiffs, Joint Statement at 3, and (2) documents filed with the Court by Chamber of Commerce, National Association of Manufacturers, and Associated Builders and Contractors Plaintiffs (collectively, "Coalition Plaintiffs"), id. at 4-5. Both sets of documents filed with the Court were also filed with the FEC during an administrative enforcement action. With regard to the first category of documents, "the AFL-CIO agreed to identify documents in the record of MURs 4291, et al., . . . that were responsive to defendants' discovery requests . . . and provide them to the defendants under . . . the Agreed Protective Order." Id. at 3. In the Joint Statement, AFL-CIO Plaintiffs state that these documents were produced from AFL-CIO files and "recopied and provided to the FEC" for this litigation. Id. at 3-4. The second set of documents, involving Coalition Plaintiffs, were produced in a slightly different fashion. Rather than recopy documents from their own files, Coalition Plaintiffs "stipulated to a procedure that allowed counsel for defendants to review and use documents in the FEC's files" for this litigation. Id. at 5. According to the discovery stipulation, Coalition Plaintiffs "agree[d] to make [documents in the FEC's files] available to the Commission for use in [this] litigation as if they had been produced by the Client [Coalition Plaintiffs] in response to [discovery] Requests." Praecipe Filing Discovery Stipulation at 2 [hereinafter "Discovery Stipulation"] (emphasis added). Under the process agreed to by the parties, FEC Defendant first produced the documents from its investigative files, then these documents were delivered to Coalition Plaintiffs for review, and finally, the documents were copied for use in this litigation and tendered to the FEC in response to its discovery requests. See id. at 2-3.
As alluded to above, in both In re Sealed Case and AFL-CIO, the FEC attempted to disclose information contained in FEC files that it had gathered as part of an administrative enforcement action under FECA. See In re Sealed Case, 237 F.3d at 662-63; AFL-CIO, 177 F. Supp.2d at 52-55. Both courts concluded that the FEC was prohibited from disclosing this information from the FEC files to the public. In re Sealed Case, 237 F.3d at 666-67; AFL-CIO, 177 F. Supp.2d at 56. Here, however, the FEC received documents deemed pertinent to its discovery requests for use in this litigation.
As noted above, the documents provided by AFL-CIO Plaintiffs had already been tendered to the FEC during an investigative proceeding. In the course of this litigation, however, AFL-CIO Plaintiffs reproduced these documents from their own files and turned them over to FEC Defendant anew, in response to discovery requests. As a result, the documents produced for this proceeding did not come directly from an FEC investigative file, but rather from AFL-CIO Plaintiffs' files. As for the second set of documents, while these documents originally came from a FEC investigative file, they were returned to Coalition Plaintiffs — consistent with the statute — where they were reviewed, copied, and returned to FEC Defendant "as if they had been produced by the [Coalition Plaintiffs] in response to [discovery] Requests." Discovery Stipulation at 2. By reviewing and returning the documents as if disclosing documents from their own files, Coalition Plaintiffs' Section 437g(a)(12)(A) claims were vitiated.
Coalition Plaintiffs were, of course, entitled to review the portions of the FEC's files that they originally supplied as the result of an administrative enforcement proceeding. By reviewing and copying those documents, however, and then returning them to FEC Defendant in response to a discovery request in this litigation, the documents no longer fall under the protections afforded by Section 437g(a)(12)(A). Defendant FEC did not seek the returned-documents as the result of a FECA enforcement proceeding, rather these documents were requested during discovery in a civil trial initiated by Coalition Plaintiffs.
In fact, the FEC was explicitly prohibited from opening its investigative files in response to discovery requests by parties not related to the particular information requested. See McConnell v. FEC, No. 02-582 at 4-5 (D.D.C. Aug. 12, 2002) [hereinafter "August 13, 2002, Order"] (order denying the FEC a protective order that would allow it to disclose to certain parties the entire investigative files of approximately 61 pending or closed FEC administrative enforcement proceedings). The Three-Judge District Court recognized the "sensitive nature of the documents" and observed that "less intrusive alternatives to disclosing the files" existed rather than permitting the diverse interests to this case to "rummage" through these files. Id. at 10. In a footnote, the Three-Judge District Court noted that the Plaintiffs, in fact, had suggested one such alternative:
Insofar as any plaintiff happens to be an investigated
party in one of the FEC's ongoing or closed
investigations, that plaintiff and the Commission have
equal access to the documents provided in the
investigation by that party, and either can seek to
reach an accommodation with the other about the use of
any such document here. Or, the FEC can, through
discovery requests or third party subpoenas —
appropriately tailored under Rule 26 or Rule 45 to the
issues in the case at bar — obtain the documents
anew, with the parties so targeted for discovery
cognizant of the effort and able to protect their
Id. at 10 n. 5 (quoting Pls.' Opp'n at 5). As a result of the August 13, 2002, Order, the FEC could not produce information it had acquired from an ongoing or closed enforcement proceeding directly from its files in violation of Section 437g(a)(12)(A). Although the documents at issue here were part of an FEC investigative file, the FEC was not precluded from requesting the same documents directly from the parties or devising an agreement, consistent with Section 437g(a)(12)(A), whereby the information in the files could be used in this proceeding as if produced by the party. See id. Indeed, the August 13, 2002, Order made it clear that the FEC could not introduce documents in such a way that would implicate Section 437g(a)(12)(A). Consequently, by denying Defendant FEC's request for a special, Section 437g(a)(12)(A) protective order in toto and prohibiting the parties from implicating Section 437g(a)(12)(A), the Three-Judge District Court essentially limited the confidentiality of all the documents produced in this litigation to the same disclosure protections afforded by the general Agreed Protective Order.
The fact that Coalition Plaintiffs stipulated that the disclosure of this information did not constitute a "waiver of any protection afforded under § 437g of FECA" is inapposite. Discovery Stipulation at 3. As the Court has demonstrated, the documents proffered by Coalition Plaintiffs and returned to the FEC are entitled to no protection under Section 437g(a)(12)(A). The waiver provision means that by tendering these documents to the FEC as the result of a discovery request, Coalition Plaintiffs' actions did not constitute a waiver of their statutory protections afforded under Section 437g(a)(12)(A) for release in other contexts. Accordingly, the FEC is still precluded ...