Does private property seized under a search warrant become public record?
The Colorado Supreme Court is currently considering this question in a case where the Denver Post is trying to publish the contents of the diaries of the students responsible for the shootings at Columbine High School. The diaries were seized by the state as part of the investigation and are currently in their custody. The newspapers were able to access them and report from them while covering the case, but now they want to print them in toto. According to CNN, a Jefferson County district judge ruled that the tapes and documents, including a diary kept by Harris' father, should not be made public. But the state Court of Appeals last year ruled that the material is public record and ordered the judge to consider whether its release would be contrary to the public interest.
It seems the difference in the standard is whether there is a bright line rule against disclosure of seized public documents, or whether the default is disclosure, unless it is contrary to the public interest.
I think that relying on the party in possession of private information-- here the state-- to determine whether it is a public record is bad policy. It's particularly egregious here where the disclosure to the state was not voluntary, but it's a policy that pervades many aspects of privacy law. In the Fourth Amendment cases, you do not have an "expectation of privacy" in PII you disclose to third parties (like the phone numbers you dial). In civil privacy law, you cannot control use of PII once it's transferred to a third party (except for limited circumstances where the law creates notice requirements and/or opt-out options, like for financial data).
I don't believe that you can consider the latter two 'voluntary' given that one cannot participate in many aspects of modern life without transferring data to third parties, but that is at least one means to distinguish documents seized by court order from other documents released to government and corporate third parties.
There is another aspect to this case, of course, which is the public's right to know. Or, the theory that the public should have access to all government records, because the government should not be able to rely on materials during prosecution without a public check on their activities. Here, I think the press already has access to the diaries and this case is about broad public access. So if the test for "contrary to the public interest" balances public right to know, or check on government theories against private interests in private facts, I think here, disclosure should not be permitted.
But I prefer the (limited) bright line rule that government seizure does not turn private information (like diaries, emails, phone conversations, calendars, shopping lists, etc.) into a public record, particularly in cases where the government has used the information in investigation and prosecution and the press has had access to report on the documents firsthand without a government filter.