United States District Court, D. Kansas
MEMORANDUM AND ORDER
THOMAS MARTEN, JUDGE.
matter is before the court on defendants' request,
invoking the common law right of access to judicial records,
to unseal the copy of an informant's DEA file which was
previously placed on the court's docket. The court
originally denied defendants' request, United States
v. Pickard, 2012 WL 1658899 (D. Kan. 2012), but the
Tenth Circuit concluded additional findings were required
before the request to unseal could be resolved. United
States v. Pickard, 733 F.3d 1297 (10th Cir. 2013). After
remand and the reassignment of this case to the undersigned,
the court determined that the confidential DEA file should
remain under seal. United States v. Pickard, 2104 WL
1356053 (D. Kan. 2014). After the Tenth Circuit again
remanded the matter, United States v. Apperson, 642
Fed.Appx. 892 (2016), this court directed the government to
show cause why the file should not be unsealed.
Common law right of access
Supreme Court recognized a qualified common law right of
access to judicial documents in Nixon v. Warner
Communications, Inc., 435 U.S. 589, 597-99, 98 S.Ct.
1306, 55 L.Ed.2d 570 (1978), under which the public may
“inspect and copy public records and documents,
including judicial records and documents, ” but noting
that the right is “not absolute.” The district
court has the discretion to seal a judicial record, but must
do so “charily.” Fed. Sav. & Loan Ins.
Corp. v. Blain, 808 F.2d 395, 399 (5th Cir. 1987).
Fifth Circuit recently explained the rationale for the public
right of access. In United States v. Sealed Search
Warrants, 868 F.3d 385, 395 (5th Cir. 2017), the court
explained that the common law right to judicial records
the trustworthiness of the judicial process, curbs judicial
abuses, and provides the public with a better understanding
of the judicial process, including its fairness. [SEC v.
Van Waeyenberghe, 990 F.2d 845');">990 F.2d 845, ] 849 [(5th Cir. 1993)].
The right serves as a “check[ ] on the integrity of the
system.” Id. at 849-50 (quoting Wilson v.
American Motors Corp., 759 F.2d 1568, 1571 (11th Cir.
1985) (alterations original)); see also [United
States v.] Holy Land Foundation, 624 F.3d [685,
] 690 [(5th Cir. 2010)] (“‘Public confidence [in
our judicial system] cannot long be maintained where
important judicial decisions are made behind closed doors and
then announced in conclusive terms to the public, with the
record supporting the court's decision sealed from public
view.'” (quoting In re High Sulfur Content
Gasoline Prods. Liab. Litig., 517 F.3d 220, 230 (5th
Cir. 2008)) (alterations in original)).
circuits have limited the reach of the right, recognizing
that the doctrine “does not reach materials properly
submitted to the court under seal or otherwise kept
confidential for important policy reasons.” In re
Morning Song Bird Food Litig'n, 831 F.3d 765, 778
(6th Cir. 2016) (citing United States v. Corbitt,
879 F.2d 224, 228 (7th Cir. 1989); Times Mirror
Co. v. United States, 873 F.2d 1210, 1219 (9th Cir.
1989)). Thus, the right of access generally does not reach
Presentence Reports, which “‘are not treated as
public records within the judicial system, but are handled
and marked as ‘confidential reports.'”
Id. (citing In re Siler, 571 F.3d 604, 610
(6th Cir. 2009)). See also Times Mirror Co., 873
F.2d at 1219 (“there is no right of access to documents
which have traditionally been kept secret for important
the information at issue is a law enforcement agency's
file concerning one of its confidential sources, a document
which is not a traditional judicial record, and which was
filed under seal at the direction of the judge who oversaw
the defendants' trial. The Tenth Circuit determined that
the common law right of access not only applied but “is
particularly strong ... where the district court used the
sealed documents ‘to determine litigants'
substantive legal rights.'” Pickard, 733
F.3d at 1302 (quoting Colony Ins. v. Burke, 698 F.3d
1222, 1242 (10th Cir. 2012)). “Thus, in this case, the
government bears the burden of articulating an interest
sufficient to overcome the strong presumption in favor of
public access to the sealed CI file.”
Apperson, 892 Fed.Appx. at 899.
with this directive, the court in its recent order concluded
that continued retention of the Skinner file under seal
required the government to show “by particular document
or class of document” the following factors:
(1) the governmental interest in supporting retention, (2)
the relative public interest in its product, (3) the extent
that the document may already be in the public domain, and
(4) the ability to protect the governmental interest by
787, at 6). Following the court's order, the government
submitted a response (Dkt. 790), with an accompanying revised
Vaughn index addressing the contents of the Skinner
file and invoking various grounds for retention (Dkt. 790-1),
as well as an affidavit by William C. Little, Jr. (Dkt.
790-2). The defendants have recently filed objections to the
government's response, arguing that the response fails to
address the four factors set forth in the court's order.
The defendants also argue the government's revised
Vaughn index is deficient in additional particular
respects. (Id. at 11-22).
court first notes the limited nature of the government's
response, which offers little in the way of argument. Rather,
the response asks that the court take judicial notice of a
revised Vaughn index that was found to be an
acceptable response to a Freedom of Information Act (FOIA)
claim filed by defendants in separate litigation. Pickard
v. Department of Justice, No. 06-00185 CRB, Dkt. 222
(N.D. Cal. Aug. 27, 2015). Otherwise, the response simply
incorporates what the government refers to as the
“explanatory sworn declaration” by William
reviewing in detail the government's response, the court
notes that the resolution of the issue may not rest on
generic considerations. In its earlier order maintaining the
Skinner file under partial seal, this court noted the general
“chilling effect” of divulging confidential
source information, and the government's general interest
in confidentiality in similar criminal cases. The Tenth
Circuit did allow in United States v. Apperson that
these matters are unquestionably, in principle, legitimate
governmental interests, [but] they are likely to be present
to some degree in virtually every case where a member of the
public seeks access to law-enforcement informant files.
Therefore, lest the common-law presumption of access be
rendered a dead letter as to this class of cases, courts
cannot justify denying disclosure by endorsing such
generalized governmental interests. They must analyze the
government's interests in the context of the specific
case-with respect to particular documents or categories
of documents-and explicitly undergird their conclusions ...