Chief Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit. Credit: Diego M. Radzinschi / NLJThe U.S. Court of Appeals for the D.C. Circuit ruled Tuesday that a federal judge should unseal electronic surveillance records in closed investigations, in a win for advocates seeking access to the court records.
The opinion stems from a 2013 petition from BuzzFeed News reporter Jason Leopold, which the Reporters Committee for Freedom of the Press later joined, seeking to unseal court documents on electronic surveillance tools such as pen registers in shuttered federal investigations.
Judges Merrick Garland, David Tatel and Senior Judge Laurence Silberman unanimously reversed Chief U.S. District Judge Beryl Howell’s ruling against unsealing the records, which had cited the administrative burden created in making the information public.
“Providing public access to judicial records is the duty and responsibility of the judicial branch. Precluding public access because of the personnel-hours required to produce those records is no more warranted than precluding public access to high-profile trials because of the costs of crowd control,” Garland wrote. “Administrative burden, when taken into consideration as necessary to protect other relevant interests, may affect how and when judicial records may be released. But it is not dispositive of whether judicial records may be released at all.”
Garland wrote that a judge “may reasonably find that the administrative burden of protecting those interests should affect the manner or timing of unsealing,” citing Howell’s finding that records cannot simply be released without going through redactions in order to protect ongoing investigations or the personal privacy of individuals referenced in the documents. The judge added that the petitions “cannot and do not expect the U.S. Attorney’s and Clerk’s Offices to disclose records without redactions or to drop everything and make unsealing their top priority.”
“But although administrative burden is relevant to how and when documents are released, it does not justify precluding release forever. The records at issue here are not nailed into a nondescript crate, stored deep in a sprawling, uncataloged warehouse,” Garland continued, citing the Indiana Jones movie “Raiders of the Lost Ark.”
“Production may be time-consuming, but time-consuming is not the same thing as impossible,” he added.
The opinion notes that court personnel can also split the duties among themselves to reduce the amount of work it takes to unseal the records. And, it warned, a ruling against unsealing the records over the administrative burden might lead to “unacceptable differences” among judicial districts, which have varying numbers of the sealed surveillance documents and staffing levels.
“Although we do not denigrate the substantial amount of work involved, which will undoubtedly take people away from other important tasks, at some point the work becomes spread out over enough people and enough time that the burden is minimized,” the opinion reads.
Tuesday’s ruling is a victory for those seeking more access to information housed within the infamously opaque judiciary, and is likely to shed details on previous federal probes. However, it does not guarantee the swift unsealing of the sought documents: In remanding the case back to Howell, the panel said she should use her “sound discretion” in determining how and when the records can be unsealed.
“We are fully aware that the current coronavirus pandemic has imposed—and will continue to impose—enormous burdens on the normal operations of the Clerk’s Office and U.S. Attorney’s Office,” reads a footnote attached to that instruction. “Needless to say, the district court may take those burdens into account in determining ‘how and when’ greater access can be provided.”
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July 08, 2020 at 01:32AM
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Secret Electronic Surveillance Records Must Be Released, DC Circuit Rules | National Law Journal - Law.com
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