Notice & Comment

D.C. Circuit Review – Reviewed: Public Access to Court Records

If you’re here to read about admin law, you may be disappointed. Only one decision from the D.C. Circuit this week, about public court records, and it remands the case without deciding any of the issues presented. But along the way it reinforces a fundamental principle in our court system: the right of public access to court records.

The case, In Re Application of Los Angeles Times Communications LLC (No. 21-5128), relates to stock trades by Senator Richard Burr and his wife in mid-February 2020, when the pandemic had not yet permeated every corner of American life (remember those days?). The LA Times reported (based on a confidential source) that Senator Burr had been served with a search warrant, and Senator Burr later publicly stated that the investigation had been closed. The LA Times then moved to unseal court records related to the search warrant. In a neat trick, the government filed its opposition ex parte and under seal. So the LA Times moved to unseal the opposition, too (or at least to gain access to a redacted public version). The district court denied both motions, essentially on the basis that privacy interests took precedence for an investigation that had not been acknowledged by the government.

As sometimes happens on appeal, though, the facts changed. The SEC sought to enforce a subpoena related to trades by Senator Burr’s brother-in-law, and in those papers acknowledged both an SEC and DOJ investigation. Responsive filings in the SEC action recounted statements by DOJ prosecutors that the DOJ investigation was closed. In an opinion by Judge Rogers (joined by Judges Millett and Katsas), the D.C. Circuit remanded so that the district court could reconsider its decision in light of these developments. But the Court also made sure to point out flaws in the district court’s consideration of the Hubbard factors governing the analysis of when to seal court records. See United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980).

Specifically, the district court’s explanation of the public interest was not fleshed out, and did not fully consider “powerful public interest in learning of a sitting Senator’s potential violation of insider-trading laws based on information acquired in his official capacity.” In addition, the district court placed “almost no weight” on the fact that so much information had already been reported, especially Senator Burr’s acknowledgement of the investigation. Finally, the district court did not consider the reason why the documents were filed (to be considered in judicial decision-making), which can factor in favor of public access.

As the opinion does not shy away from calling out error, it leaves the impression that the panel was close to a simple reversal, but opted instead to remand for reconsideration with strong indications of how the panel views these issues. We will have to see if the district court takes the hint!

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