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United States v. Pickard

United States District Court, D. Kansas

November 16, 2017

United States of America, Plaintiff,
v.
William leonard Pickard and Clyde Apperson, Defendants.

          MEMORANDUM AND ORDER

          J. THOMAS MARTEN, JUDGE.

         This 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.

         A. Common law right of access

         The 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).

         The 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

         promotes 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)).

         Some 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 policy reasons.”).

         Here, 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.

         Consistent 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 redaction.

         (Dkt. 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).

         The 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 Little.

         Before 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 ...

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