United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS UNITED STATES DISTRICT JUDGE
April 24, 2018, the Court held a status conference to discuss
Defendant Jill Murray's supervised release. At the
request of Murray's counsel, a portion of that status
conference occurred at the bench. Subsequently, a third party
requested a copy of the transcript of the proceeding.
See Dkt. 52. Based on the understanding that
portions of the transcript might “contain information
that is confidential in nature, ” the Court provided
the parties with the opportunity to move to seal portions of
the transcript. Minute Order (Apr. 25, 2018). In response,
Murray moved for an order sealing the entire portion of the
transcript from the bench conference, asserting that she has
a compelling privacy interest in the matters discussed and
that those matters are of little or no public interest. Dkt.
49. Because a third party had requested a copy of the
transcript, and in light of the “strong presumption in
favor of public access to judicial proceedings, ”
Johnson v. Greater Se. Cmty. Hosp. Corp., 951 F.2d
1268, 1277 (D.C. Cir. 1991), the Court offered “[a]ny
party or third[ ]party” the opportunity to oppose
Murray's motion, Minute Order (May 8, 2018). Rather than
oppose Murray's motion, the United States filed a timely
response in which it joined in Murray's request to seal
the designated portion of the transcript. Dkt. 51 at 4.
Although recognizing the importance of public access, the
United States agreed with Murray that “the portions of
the record at issue have no bearing on the victim in the case
or [on] any specifically identifiable public interest.”
Id. at 2.
estranged husband, Sacha Rosen, however, filed a brief
opposing Murray's motion to seal. Dkt. 52. In his words,
“[a]s Murray's husband, guardian of their children,
and one of several persons substantially impacted by her
crime and subsequent compliance with supervised release
conditions, ” he “has a strong interest in the
proceedings before this Court.” Id. at 1.
Rosen further explained that he “follows the
proceedings in this Court closely to learn a) whether Ms.
Murray continues to comply with the conditions of her
supervised release pertaining to the treatment of substance
abuse and mental health issues, b) how Ms. Murray's
restitution to the victims of her crimes may affect their
shared assets, and c) whether Ms. Murray has made any
representations to this Court that may directly or indirectly
impact their children.” Id. at 2. In her reply
brief, Murray argues that she and Rosen “are involved
in bitter divorce proceedings, ” Dkt. 53 at 1, that in
the status conference this Court merely addressed “how
[she] is doing on supervised release, ” id.,
and that permitting Rosen to use statements made in that
context to fuel their domestic relations dispute will have
the effect of chilling Murray in future discussions relating
to her personal life and supervised release, see Id.
at 4, 6.
starting point in considering a motion to seal court records
is a ‘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) (quoting Johnson, 951 F.2d at 1277). That
presumption recognizes that “[t]he right of public
access is a fundamental element of the rule of law, important
to maintaining the integrity and legitimacy of an independent
judiciary.” Metlife, Inc. v. Fin. Stability
Oversight Council, 865 F.3d 661, 663 (D.C. Cir. 2017).
It “promote[s] trustworthiness of the judicial process,
. . . curb[s] judicial abuses, and . . . provide[s] the
public with a more complete understanding of the judicial
system, including a better perception of fairness.”
In re Application of Jason Leopold to Unseal Certain
Elec. Surveillance Applications & Orders,
300 F.Supp.3d 61 (D.D.C. 2018) (quoting Doe v. Pub.
Citizen, 749 F.3d 246, 266 (4th Cir. 2014)). Although
the presumption is a “strong” one, it is
“not absolute, ” id., and it “may
be outweighed in certain cases by competing interests,
” Metlife, 865 F.3d at 665.
assist courts in assessing when the presumption gives way,
the D.C. Circuit established a six-factor test in United
States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). That
test-the “Hubbard test”-requires that
(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
Nat'l Children's Ctr., 98 F.3d at 1409
(citing Hubbard, 650 F.2d at 317-22). Applying this
test, the Court concludes that the transcript should be
released in part.
Need for Public Access
D.C. Circuit recognized in Hubbard, not all judicial
records and proceedings are created equal. 650 F.2d at 317.
In some circumstances, such as “the courtroom conduct
of a criminal trial, ” the First Amendment requires
public access. Id. In others, the common law may
place a premium on public access. Id. And, in still
others, the public interest in access may be minimal.
Id. Although no precise formula controls in all
cases, the public's interest is heightened when
disclosure would “allow the public to understand the
rulings as well as the contours of the disputes between the
parties.” Hyatt v. Lee, 251 F.Supp.3d 181, 184
(D.D.C. 2017). Thus, for example, there is a strong public
interest in access to documents “introduced as evidence
of guilt or innocence in a trial, ” and in documents
relied upon by a court in reaching a decision on questions of
importance. Hubbard, 650 F.2d at 317. In contrast,
the public interest in more peripheral matters, such as
documents “seized from a third party
nondefendant” and subsequently “introduced by the
defendants solely to show the overbreadth of a search,
” id. at 295, 317, is less compelling.
Murray has already served her sentence, and the discussion at
the bench principally involved a recommendation from the
probation officer about Murray's ongoing supervision. The
Court did not enter an order or modify the terms of
Murray's supervised release, nor was there any discussion
of any violation of the terms of supervised release. The
Court was not presented with any evidence or legal argument.
And, the recommendation that the probation officer made was
similar to the type of reports that the probation office
typically makes to the Court under seal. See, e.g.,
United States v. Harrison, No. 92-543-1, 2003 WL
21027286, at *1 (E.D. Pa. May 7, 2003) (“United States
probation files are confidential court records compiled in
the course of fulfilling court-ordered responsibilities; a
probation officer must be authorized by the court to release
information from the presentence investigation report or
probation files to third parties.”); see also
United States v. Munir, 953 F.Supp.2d 470, 476-77
(E.D.N.Y. 2013) (describing how probation offices
confidentially provide information to courts). The Court does
not doubt that Rosen has a strong, personal interest in these
proceedings, but that interest bears most fundamentally on
the divorce proceedings between him and Murray, which are
pending in state court in South Carolina. It goes without
saying that those divorce proceedings lie well beyond the
jurisdiction of this Court. Moreover, and more importantly,
Rosen has failed to explain how his personal
interest in gathering information involving his estranged
spouse relates to the public interest in
understanding the judicial process and how this Court
discharges its duties.
limited respect, however, the discussion at the bench
conference did disclose information of significant public
interest; in particular, the parties disclosed that the
Marshals Service had received a check from Murray for $96,
148.17, which it will convey in due course to the victims of
Murray's criminal conduct. The public has an interest in
knowing that a substantial portion of this Court's
restitution order has been satisfied.
Court, accordingly, concludes there is a significant public
interest in the disclosure of the amount of the restitution
payment. In all other respects, however, the Court concludes
that the need for public access to the transcript of the
bench conference is, if anything, less substantial than the
public interest in access to the sealed records that the
Hubbard court deemed to be of “only
modest” public interest. 650 F.2d at 318.
Extent of ...