United States District Court, District of Columbia
IN THE MATTER OF THE APPLICATION OF WP COMPANY LLC d/b/a THE WASHINGTON POST FOR ACCESS TO CERTAIN SEALED COURT RECORDS
A. HOWELL Chief Judge
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.
For the reasons set out below, the Post’s request for
further unsealing in this case is denied.
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. 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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
Post asserts two pertinent bases for seeking additional
disclosure beyond that provided in response to the
Post’s initial motion. 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.”).
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.
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.
APPLICABLE LEGAL PRINCIPLES
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.
First Amendment Right of Public Access to Judicial
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
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.
Law Right of Access to Public Records
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)).
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.
THE POST’S REQUEST FOR ADDITIONAL ...