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In re Application of WP Company LLC

United States District Court, District of Columbia

August 18, 2016

IN THE MATTER OF THE APPLICATION OF WP COMPANY LLC d/b/a THE WASHINGTON POST FOR ACCESS TO CERTAIN SEALED COURT RECORDS

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge

         The WP Company LLC d/b/a The Washington Post (the “Post”) filed this action seeking the unsealing of search warrant materials “relating to” the investigation by the United States Attorney’s Office for the District of Columbia (“USAO”) into alleged campaign finance violations during the 2010 District of Columbia mayoral election (the “Campaign Finance Investigation”). See Mot. Public Access Certain Sealed Ct. Recs. (“Post’s Mot.”), ECF No. 1. After the Post’s motion was granted in part and denied in part, In re the Application of WP Co. (“Wash. Post I”), No. CV 16-MC-351 (BAH), 2016 WL 1604976 (D.D.C. Apr. 1, 2016), materials filed in connection with eighteen search warrants, issued between February 2012 and January 2015, were unsealed and made publicly accessible with limited redactions. Contending that the government has yet to unseal search warrants filed in furtherance of concededly “ancillary investigations” of Jeffrey E. Thompson, who was prosecuted as part of the Campaign Finance Investigation, the Post now seeks the unsealing of these additional warrant materials. See Suppl. Submission Supp. Post’s Mot. (“Post’s Suppl.”) at 2, ECF No. 27.[1] For the reasons set out below, the Post’s request for further unsealing in this case is denied.

         I. BACKGROUND

         Though styled as a "supplemental memorandum, " the Post's latest filing is more easily understood as a new motion to unseal documents that, in the Post's view, "relate to" the Campaign Finance Investigation but were not previously unsealed in response to the Post's original motion in this action.[2] Indeed, while submitting that it "does not know precisely . . . the current posture" of this action, Post's Suppl. at 1, the Post brought its present request nearly three months after resolution of the Post's original motion, Wash. Post I, 2016 WL 1604976, and a week after the case was administratively closed, see Min. Entry, dated June 8, 2016. Nonetheless, as explained below, see infra Part II.B.l, because the Post now seeks access to materials that were not at issue in the Court's disposition of the Post's original motion, the Post's present request for additional disclosure must be considered on its own merits. To that end, to determine whether any additional disclosure is warranted under either the First Amendment or the common law, the factual and procedural history preceding the Post's present motion is briefly summarized.

         This action began in earnest on February 19, 2016, when the government and Jeffrey E. Thompson jointly moved for a protective order governing the production of materials turned over to Thompson as a part of his prosecution arising out of the Campaign Finance Investigation. See Protect. Order Governing Mats. Prod. Def., United States v. Thompson, No. 14-cr-49 (CKK) (D.D.C. Feb. 22, 2016), ECF No. 49. Three days later, the Post initiated this case by moving, pursuant to Local Rule of Criminal Procedure 57.6, for the unsealing of “court records relating to search warrants issued in connection with” the Campaign Finance Investigation and any “related investigations” of three individuals linked to the alleged campaign finance violations in that investigation. See Post’s Mot. at 1.[3]

         “Specifically, the Post [sought] access to: the search warrants, applications, supporting affidavits, court orders, and returns relating to the [Campaign Finance Investigation] . . ., whether or not the warrant was issued and/or executed.” Id. at 1. In support, the Post explained that this investigation “concerned issues at the very core of the First Amendment-the integrity of the District of Columbia’s elections and its public officials.” Id. at 3. Moreover, asserting a “similarly strong interest in more fully reporting on these matters to the public, ” id. (citing Decl. Laura R. Handman (Feb. 22, 2016), ECF No. 1-3), the Post contended it has a qualified right of access, under both the First Amendment and the common law, to any warrant materials filed in furtherance of the Campaign Finance Investigation. See Mem. Supp. Mot. Public Access Certain Sealed Ct. Recs. (“Post’s Mem.”) at 10-26, ECF No. 1-2. On March 24, 2016, the government submitted a sealed, ex parte response to the Post’s motion, see Gov’t’s Notice of Filing, ECF No. 7, which has since been partially unsealed, see Order on Mot. Part. Unseal, ECF No. 21. As set out in the redacted response, the government did not object to the unsealing of warrant materials tied to the Campaign Finance Investigation with appropriate redactions to protect the privacy interest of individuals named in the documents to be disclosed. Gov’t’s Resp. Post’s Mot. (“Gov’t’s Resp.”) at 7-9, ECF No. 22.

         Reviewing these submissions, the Court construed the Post’s motion to seek “only warrant materials related to the now-closed Campaign Finance Investigations.” Wash. Post I, 2016 WL 1604976, at *2 n.2. Consequently, the Court granted in part and denied in part the Post’s motion, and directed the government to file copies of the relevant warrant materials, with redactions to protect: “(1) the identities of uncharged third parties, (2) the identities and personal identifiers of any confidential informants, and (3) any personal identifying or contact information.” Id. at *3. Following an in camera review, and certain limited additional redactions, the government released redacted versions of more than ninety documents, totaling nearly 1000 pages, for public review on April 15, 2016. See Gov’t’s Final Redactions, ECF No. 18.

         While this action was pending, the sentencing of Thompson in the parallel criminal action was approaching. In connection with that sentencing, the government, on May 26, 2016, indicated its intention to submit a supplemental filing in the instant case that “may impact the content of the parties’ memorand[a] in aid of sentencing and their respective allocutions at the sentencing hearing.” Gov’t’s Consent Mot. Extend Time File Parties’ Mems. Aid Sentencing & Cont. Sent. Hr’g at 3, United States v. Thompson, No. 14-cr-49 (CKK), ECF No. 54. The government has since clarified that certain materials currently under seal describe aspects of Thompson’s “substantial assistance that did not result in public charges.” Gov’t’s Mem. Aid Sent. (“Gov’t’s Thompson Sent. Mem.”) at 16 n.8, United States v. Thompson, No. 14-cr-49 (CKK) (D.D.C. July 15, 2016), ECF No. 59. Specifically, the government explained that “arguably impeaching evidence related to other alleged conduct” had been identified “that potentially could have been used to undermine [Thompson’s] credibility as a trial witness.” Id. at 18. While choosing not to sponsor Thompson as a trial witness, the government emphasized that it was “unable to corroborate the most serious allegations related to [Thompson]’s other conduct, [and therefore] declined to pursue criminal charges related to such conduct.” Id. at 18 n.9.

         On June 3, 2016, the government made a supplemental filing, under seal and ex parte, in the instant case, which is now publicly available in redacted form. See Gov’t’s Suppl. Resp. Post’s Mot. (“Gov’t’s Suppl.”), ECF No. 37-1. In this redacted filing, the government explains that it has “completed its final witness interview” and “has declined to proceed with criminal charges against any of the individuals involved” in certain unidentified investigations. Id. at 3. Noting both this Court’s prior recognition of the important governmental and individual privacy interests potentially harmed by the Post’s requested disclosure, as well as Thompson’s earlier stated interest in maintaining records related to him under seal, the government explained that it would be “impractical” to protect these interests through targeted redactions. Id. at 6.

         In response to the government’s supplemental filing, the Post filed its present request for additional unsealing on June 15, 2016. See Post’s Suppl. The Post’s supplemental filing cites the newspaper’s own recent reporting that, during its investigation of alleged campaign finance violations, the USAO uncovered and investigated allegations concerning unrelated personal conduct involving Thompson. Id. at 4-5. Specifically, the Post points to information, based on “confidential and on-the-record sources, ” that investigators pursued allegations regarding Thompson’s sexual relationships, as well as efforts to conceal these relationships from the public. Id. According to the Post’s reporting, the investigation of this separate personal conduct ultimately influenced the USAO’s charging decisions in relation to the Campaign Finance Investigation and, as such, was “plainly critical to the progress and outcome of” that investigation. Id. at 5. The Post notes, however, that the search warrant materials unsealed under the Court’s prior orders in this case “did not include any materials related” to any such personal conduct investigations. Id.

         With the government’s revelation about “impeaching evidence related to other alleged conduct” by Thompson, Gov’t’s Thompson Sent. Mem. at 18, the Post now clarifies that its original motion sought not only warrant materials issued in connection with the Campaign Finance Investigation, but also any such materials arising from “related” investigations involving three individuals targeted by the USAO. Post’s Suppl. at 7. The Post acknowledges that it is unaware of “the full scope of these ‘related investigations’ . . ., or whether those investigations were formally concluded along with the [Campaign Finance Investigation].” Id. Nonetheless, proceeding on the assumption that additional warrant materials falling within the scope of its motion remain under seal, the Post now asserts the public’s right to access any such material. The government responded to the Post’s supplemental filing on June 29, 2016, which response has since been made publicly available in redacted form. See Gov’t’s Resp. Wash. Post’s Suppl. Submission Supp. Post’s Mot., ECF No. 37-2.

         On July 19, 2016, the Court directed the government to provide, under seal, further information regarding its efforts to notify any individuals whose interests may be harmed through the additional disclosure sought by the Post, as well as any compelling interest that may be harmed through such disclosure. Min. Order, dated July 19, 2016. In compliance with this Order, the government submitted an additional sealed filing on July 26, 2016. See Gov’t’s Notice of Filing, ECF No. 32; Gov’t’s Resp. Court’s July 19, 2016 Order (Sealed), ECF No. 36. As with the government’s prior ex parte submissions, a redacted version of this most recent response has since been filed on the public docket. See Min. Order, dated Aug. 2, 2016; Gov’t’s Resp. Court’s July 19, 2016 Order, ECF No. 44.[4]

         Finally, after initially identifying himself as an “interested party” in this litigation in March 2016, see Jeffrey E. Thompson’s Consent Mot. Enlargement Time File Opp’n, ECF No. 5, Thompson moved on August 3, 2016, for an order denying the Post’s present request for disclosure of additional warrant materials, Mot. Deny Public Access Certain Ct. Recs. (“Thompson Mot.”), ECF No. 45. In addition to “defer[ring] to, ” but not “adopt[ing] the facts which are alleged in the record of this matter, ” Thompson explains that, in March 2012, federal agents “executed search warrants in connection with” an unspecified investigation and seized various items that included “more than twenty-three million pages of documents.” Id. at 3 (quoting In re Sealed Case, 716 F.3d 603 (D.C. Cir. 2013)). Contending that any public interest in further disclosure “does not override his privacy and property rights, ” Thompson joins the government in opposing the unsealing of any additional warrant materials in this case. Id.

         In light of these filings, the Court allowed the Post to supplement its own prior submissions in support of its request for further unsealing. Min. Order, dated Aug. 1, 2016. The Post having done so, Suppl. Submission Supp. Post’s Mot. Opp’n Thompson Mot. (“Post’s Suppl. Reply”), ECF No. 46, its request for additional disclosure in response to its motion is now ripe for review.

         II. DISCUSSION

         The Post asserts two pertinent bases for seeking additional disclosure beyond that provided in response to the Post’s initial motion.[5] First, the Post suggests that the Court misinterpreted the scope of the Post’s original motion to encompass only those materials stemming directly from the Campaign Finance Investigation. Post’s Suppl. at 7. Thus, the Post now reiterates that it seeks “not only [w]arrant [m]aterials ‘issued in connection’ with the [Campaign Finance Investigation], but also those issued in connection with ‘related investigations into Mayor [Vincent] Gray, Jeffrey E. Thompson and Eugenia C. Harris.’” Id. (emphasis in original) (quoting Post’s Mot. at 1); see also Post’s Suppl. Reply at 2 (“[T]he Post renews its request for access to any additional sealed [w]arrant [m]aterials connected to the investigations that the [g]overnment has now confirmed are complete.”).

         Second, supposing that the government opposes disclosure of any additional warrant materials “because of the private nature of the facts being investigated, ” the Post argues that “such privacy interests can be adequately addressed by redaction of names and identifying information about confidential informants.” Post’s Suppl. at 9 (citing In re Application of New York Times Co. for Access to Certain Sealed Court Records (“In re New York Times”), 585 F.Supp.2d 83, 91 (D.D.C. 2008)); Post’s Suppl. Reply at 2-3. Further, the Post argues that “any privacy interests Thompson retains in the sealed materials is diminished by the fact that he has been charged with (and pleaded guilty to) the crimes that were investigated in the” Campaign Finance Investigation. Post’s Suppl. Reply at 3. For this reason, the Post argues that the public’s interest in learning additional information regarding individuals targeted in the Campaign Finance Investigation outweighs any remaining interests in continued closure of relevant warrant materials. Id. at 3-4.

         Following a summary of the legal framework guiding the Court’s analysis, these asserted grounds for additional disclosure under either the First Amendment or the common law will be considered in turn.

         A. APPLICABLE LEGAL PRINCIPLES

         “The public’s right of access to judicial records derives from two independent sources: the common law and the First Amendment, ” In re Fort Totten Metrorail Cases, 960 F.Supp.2d 2, 5 (D.D.C. 2013) (citing United States v. El-Sayegh, 131 F.3d 158, 160-61 (D.C. Cir. 1997)), each of which is examined below.

         1. First Amendment Right of Public Access to Judicial Proceedings

         The First Amendment guarantees a qualified right of public access to criminal proceedings and related court documents. Globe Newspaper Co. v. Superior Court for Norfolk Cty., 457 U.S. 596, 603-04 (1982). Bolstered by the Sixth Amendment’s express right for a “public trial” in “all criminal prosecutions, ” U.S. Const. amend. VI, public access to criminal trials forms the core of this First Amendment constitutional right, see Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575 (1980) (explaining that “it would be difficult to single out any aspect of government of higher concern and importance to the people than the manner in which criminal trials are conducted”). A similar right of access has been found to arise wherever “(i) there is an ‘unbroken, uncontradicted history’ of openness, and (ii) public access plays a significant positive role in the functioning of the proceeding.” United States v. Brice, 649 F.3d 793, 795 (D.C. Cir. 2011) (quoting Richmond Newspapers, 448 U.S. at 573); see also Wash. Post v. Robinson, 935 F.2d 282, 287-288 (D.C. Cir. 1991). Under this so-called “‘experience and logic’ test, ” Ctr. for Nat’l Sec. Studies v. U.S. Dep’t of Justice, 331 F.3d 918, 934 (D.C. Cir. 2003), “both these questions must be answered affirmatively before a constitutional requirement of access” attaches, In re Reporters Comm. for Freedom of the Press, 773 F.2d 1325, 1332 (D.C. Cir. 1985). Applying this standard, the Supreme Court has recognized a First Amendment right of access to criminal trials, voir dire proceedings, and preliminary hearings, while the D.C. Circuit has extended such a right to completed-but not unconsummated-plea agreements. See Brice, 649 F.3d at 795-96 (citing authorities).

         Even where the First Amendment provides a right of public access, however, this right is “‘qualified’ and is not absolute.” In re New York Times, 585 F.Supp.2d at 90; see also Brice, 649 F.3d at 795. In particular, the presumption of public access may be overridden upon a showing by the government that “(1) closure serves a compelling interest; (2) there is a substantial probability that, in the absence of closure, this compelling interest would be harmed; and (3) there are no alternatives to closure that would adequately protect the compelling interest.” Brice, 649 F.3d at 796 (quoting Wash. Post, 935 F.2d at 290). Thus, for example, the D.C. Circuit has held that documents underlying material witness warrants in a prosecution for sexual abuse, which contained “intensely private and painful information about [two juvenile victims’] medical and mental health issues, ” may be withheld under the First Amendment on the ground that disclosure, even with redaction of the witnesses’ names, would “entail a grotesque invasion of the victims’ privacy.” Brice, 649 F.3d at 795, 797.[6]

         2.Common Law Right of Access to Public Records

         In addition to the right of access guaranteed by the First Amendment, the D.C. Circuit has recognized a “broader, but weaker, common law right” of access to public records, including certain “judicial records.” El-Sayegh, 131 F.3d at 160 (D.C. Cir. 1997) (citing Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897, 898 (D.C. Cir. 1996)). Much like the First Amendment analysis described above, “the decision whether a document must be disclosed pursuant to the common law right of access involves a two-step inquiry.” Wash. Legal Found., 89 F.3d at 902. First, the court “must decide whether the document sought is a ‘public record, ’” id. (internal quotation mark omitted), with a document’s status as a covered “judicial record” dependent on “the role it plays in the adjudicatory process.” SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013) (explaining that the common law protects the public’s right to inspect and copy “those ‘government documents created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, broadly conceived’” (quoting Wash. Legal Found., 89 F.3d at 905)).

         Like the First Amendment, however, the common law provides only a qualified right of public access to covered judicial records. Thus, to determine whether a covered judicial record must be disclosed, the court must “balance the government’s interest in keeping the document secret against the public’s interest in disclosure.” Wash. Legal Found., 89 F.3d at 902. While the “starting point” of this analysis is the “strong presumption in favor of public access to judicial proceedings, ” EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409 (D.C. Cir. 1996), the D.C. Circuit has identified six factors in determining whether disclosure is compelled under the common law: “(1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings, ” id. (citing United States v. Hubbard, 650 F.2d 293, 317-22 (D.C. Cir. 1980)).

         B. THE POST’S REQUEST FOR ADDITIONAL ...


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