The opinion of the court was delivered by: Thomas F. Hogan United States District Judge
Pending before the Court is the government's Motion to Confirm Designation of Unclassified Factual Returns as "Protected." The government seeks to seal every unclassified factual return disclosed in the above-captioned cases. Petitioners respond that the government's broad request usurps the Court's discretion to seal judicial records. Multiple press organizations, having been granted a right to intervene for the limited purpose of opposing the motion, aver that the government's request violates the public's right to access judicial records under the First Amendment and common law. Upon consideration of the motion, petitioners' opposition, the press's opposition, and the government's replies, the Court denies the motion without prejudice.
Tasked by the Supreme Court with balancing the government's "interest in protecting sources and methods of intelligence gathering" against a detainee's need "to find or present evidence to challenge the Government's case against him," Boumediene v. Bush, 128 S.Ct. 2229, 2269, 2276 (2008), the Court implemented a Protective Order governing the storage, handling and control of documents and information in the cases of detainees at the United States Naval Base in Guantanamo Bay, Cuba ("Guantanamo Bay"). The Protective Order covers both classified and unclassified information.*fn1 Recognizing that some unclassified information, if publicly disclosed, may pose a threat to national security, the Protective Order permits the government to ask the Court to designate unclassified information as "protected," thereby shielding such information from the public. See September 11, 2008, Protective Order and Procedures for Counsel Access to Detainees at the United States Naval Base in Guantanamo Bay, Cuba (Dkt. No. 409, 08-mc-0442) ("Protective Order") ¶ 35. The Protective Order instructs that the ultimate decision to deem information protected is left to the Court:
Should government counsel in these consolidated cases wish to have the Court deem any document or information "protected," government counsel shall disclose the information to qualified counsel for petitioners-i.e., counsel who have satisfied the necessary prerequisites of this Protective Order for the viewing of protected information-and attempt to reach an agreement about the designation of the information prior to filing a motion with the Court. Petitioners' counsel shall treat such disclosed information as protected unless and until the Court rules that the information should not be designated as protected. Protective Order ¶ 34.
Following this procedure, on December 29, 2008, the government filed a motion requesting that the Court "confirm designation of the Unclassified Factual Returns served on petitioners' counsel" through January as protected. Respondents' Motion to Confirm Designation of Unclassified Factual Returns as "Protected" (Dkt. No. 1416, 08-mc-0442) ("Gov't Mot."). The government has subsequently filed identical motions to protect every unclassified factual return filed after January in the above-captioned cases.*fn2 The unclassified returns are the unclassified versions of the classified factual returns, which contain "the factual basis upon which [the government] is detaining the petitioner." Case Management Order (Dkt. No. 940, 08-mc-0442) (Nov. 6, 2008) 1. According to the government, due to the expedited pace of the review to develop unclassified returns, "inadvertent errors" were made - in other words, classified information was released in the unclassified returns. Gov't Mot. 6-8. Complicating matters, the government is unaware of how much classified information is contained in the unclassified returns. The government stresses that its concern is the "totality" of the classified information that would be publicly disclosed, as opposed to the risk of disclosing any specific document. Id. at 6. The government requests that the Court designate the returns protected until it can "produce versions of the returns that may be publicly disclosed." Id. at 2. The motion does not provide a date as to when such versions will be produced.
Pursuant to the Court's December 30, 2009 Minute Order, petitioners filed a consolidated opposition to the government's motion on January 7, 2009. Petitioners characterize the government's motion as a request for a "blanket designation" of the unclassified returns as protected. See Petitioners' Opposition to Respondents' Motion to Confirm Designation of Unclassified Factual Returns as "Protected" ("Pet'rs Opp.") 2. The D.C. Circuit, petitioners claim, has denied similar blanket government requests to protect unclassified information. Id.
While the government's motion was pending, on January 14, 2009, the Associated Press, New York Times Company, and USA Today (collectively "press intervenors" or "press") filed a motion to intervene for the limited purpose of opposing the government's motion. Independent of petitioners' objections, the press claim that the First Amendment and common law afford the public a qualified right of access to the unclassified factual returns.
On March 26, 2009, the Court held a motions hearing on the government's motion and the press's motion to intervene. The Court heard oral argument from the government, petitioners, and the press. With respect to the press's motion to intervene, the D.C. Circuit has liberally interpreted Fed. R. Civ. P. 24 to permit third parties to permissively intervene "for the limited purpose of seeking access to materials that have been shielded from public view either by seal or by protective order." E.E.O.C. v. Nat'l Children's Ctr. Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998); see also In re Vitamins Antitrust Litig., 2001 WL 34088808, at *2 (D.D.C. Mar. 19, 2001) (Hogan, J.). For reasons set forth during the hearing, on April 2, 2009, the Court granted by Minute Order the press's motion, permitting them to intervene for the limited purpose of opposing the government's motion before this Court.
Having granted the press a limited right to intervene in this matter, the Court's decision on the government's motion must address both petitioners' opposition and that of the press.
As explained below, the Court concludes that both parties' oppositions are meritorious.
II. Court Discretion to Seal Judicial Records
The D.C. Circuit has twice considered and denied government attempts to broadly designate as protected unclassified information on detainees at Guantanamo Bay. Before the Court can grant a motion to protect unclassified information, the government must identify by line the information it seeks to protect.
The D.C. Circuit first considered a government attempt to designate unclassified information as protected in Bismullah v. Gates, 501 F.3d 178, 187-88 (D.C. Cir. 2007), vacated 128 S.Ct. 2960 (2008), reinstated, Order, No. 06-1197 (D.C. Cir. Aug. 22, 2008), petitions dismissed for lack of jurisdiction, 551 F.3d 1068 (D.C. Cir. 2009).*fn3 In Bismullah, the D.C. Circuit entered a protective order to assist with its review of the Combatant Status Review Tribunal (CSRT) enemy combatant determinations. The government proposed that it be permitted to unilaterally determine whether ...