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In re Application of the New York Times Company for Access to Certain Sealed Court Records

November 17, 2008

IN THE MATTER OF THE APPLICATION OF THE NEW YORK TIMES COMPANY FOR ACCESS TO CERTAIN SEALED COURT RECORDS


The opinion of the court was delivered by: Chief Judge Royce C. Lamberth

MEMORANDUM OPINION

I. INTRODUCTION

Now before the Court is the New York Times Company and Los Angeles Times Communications LLC's (collectively "the Times") motion [1] for public access to sealed court records. The Times seek access to search warrants, warrant applications, supporting affidavits, court orders, and returns for all warrants requested by the government relating to searches of property owned by Dr. Steven J. Hatfill and/or Ms. Peck Chegne during the "Amerithrax investigation." The Times have withdrawn their motion to unseal the warrant materials relating to Dr. Bruce Ivins because the Court unsealed those materials in a September 24, 2008 order. (See [4].) Upon consideration of the motion [1], the government's opposition [10], the Times' reply [13], and the entire record herein, it is hereby ORDERED that the motion will be GRANTED. The warrant materials will be unsealed with limited portions that would "tend to reveal the identity of a [confidential] informer" redacted.*fn1

II. FACTUAL BACKGROUND

The court records sought by the Times relate to the investigation of the mailing of anthrax to members of Congress and the media in September and October 2001. At least 22 victims contracted anthrax as a result of the mailing (Gov't Opp'n 2) and five individuals died as a result (Id. at 2--3). Following the anthrax attacks, the government began a "seven-year endeavor that relied upon hundreds of thousands of agent-hours and spanned six continents" in an effort to bring the attacker(s) to justice. (Gov't Opp'n 3.) One of the investigative techniques employed was search warrants of property, including the property of Dr. Hatfill. (Id. at 3.)

Dr. Hatfill, a researcher at the United States Army Military Research Institute of Infectious Diseases ("USAMRIID"), had been named a "person of interest" by the government in 2002 (Times' Mot. 2) and had also become the subject of significant media attention (Gov't Opp'n 4). For example, the August 1, 2002 search warrant of Dr. Hatfill's residence was covered as a live media event with helicopter footage of the search in progress. (Id.) In part because some information about the investigation of Dr. Hatfill trickled out from the government to the media (Gov't Opp'n 4 at n.4), Dr. Hatfill filed suit against the United States Department of Justice ("DOJ"), the FBI, and other individuals, claiming a violation of the Privacy Act. Ultimately, the Department of Justice definitively ruled out Dr. Hatfill as the anthrax mailer (Id. at 5) and settled Dr. Hatfill's lawsuit, for substantial monetary damages, with no admission of liability (Id. 4 at n.4).

Following the suicide of another researcher at USAMRIID, Dr. Bruce E. Ivins, on July 29, 2008, the government held a press conference in which it stated that Dr. Ivins was the "sole suspect in the case." (Times' Mot. at 3.) As the government has noted, "there was enormous media and public interest in the details of the anthrax investigation in general" after Ivins' death. (Gov't Opp'n at 6.) Despite the government's press conference and statement that Ivins was the sole suspect in the attacks, the public continues to be fascinated by the details and length of the investigation. As a result, the Times ask the Court to unseal additional documents related to the investigation; specifically, the warrant materials related to Dr. Hatfill that were never disclosed. The government, however, objects to the release of information related to Dr. Hatfill, purportedly on the basis of his privacy interests. (Gov't Opp'n 7.)

III. ANALYSIS

The Times argue that both the common law and the First Amendment afford the press and public a qualified right of access to inspect warrant materials following the close of an investigation.*fn2 This is a case of first impression in this Circuit, and this Court agrees.*fn3

A. First Amendment Right of Access to Warrant Materials

The right of access to criminal trials and proceedings is a right grounded in the First Amendment. Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 605 (1982). The difficulty, of course, is in determining whether or not the qualified right of access applies to a particular type of proceeding or document.*fn4 The Supreme Court has held that in determining whether the public has a qualified right of access to criminal proceedings, courts must analyze two factors: (1) whether the place and process have historically been open to the press and general public, and (2) whether "public access plays a significant positive role in the functioning of the particular process in question." Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8--9 (1986) ("Press-Enterprise II").*fn5 The D.C. Circuit has held that this test applies to both court proceedings and court documents. See Washington Post v. Robinson, 935 F.2d 282, 287--288 (D.C. Cir. 1991) (using the two-part test to analyze and conclude that there is a qualified First Amendment right of access to plea agreements). Indeed, the parties in this case are in accord that the two-pronged test applies in this case. (Times' Mot. 9; Gov't Opp'n 10.)

This Circuit has not entertained the question presented in this case-whether or not there is a First Amendment qualified right of access to warrant materials after an investigation has concluded. The Eighth Circuit has held that there is a First Amendment qualified right of access to warrant materials while an investigation is still ongoing*fn6; a fortiori, that Circuit would conclude that there is a qualified right of access to warrant materials after an investigation has concluded. The Fourth and Ninth Circuits have held that there is no First Amendment qualified right of access to warrant materials while an investigation is still ongoing; however, those courts have not decided the question presented in this case.*fn7 Times Mirror Company v. United States, 873 F.2d 1210, 1221 (9th Cir. 1989) (expressly reserving the question of whether there is a First Amendment right of access after the investigation has concluded or indictments have been returned); Baltimore Sun Co. v. Goetz, 886 F.2d 60, 62 (4th Cir. 1989) (stating that the question presented was whether the First Amendment confers a qualified right of access to warrant materials in the interval between execution of the warrants and the indictment) (emphasis added).

Applying the "experience" and "logic" test in the first instance to the question of post-investigation warrant materials, this Court concludes that there is a ...


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