By Riana Pfefferkorn on May 21, 2019 at 1:28 pm
After 32 months of litigation, my quest to unseal my local federal district court's sealed surveillance docket has ended with not a single page unsealed and no prospective reforms in place.
You may recall that in December 2018, a magistrate judge here in the Northern District of California issued an unfavorable report and recommendation (R&R) on the petition my colleague Jennifer Granick (now at the ACLU) and I filed back in September 2016. In that petition, we asked the Northern District court to unseal years' worth of surveillance matters in its sealed case docket that no longer need to be sealed. The public and the press have First Amendment and common-law rights to access court records, and yet surveillance matters filed in the federal courts often remain under seal well past any need for secrecy - in effect, indefinitely. Jennifer's and my petition was an attempt to change that. In addition to our backward-looking request to unseal older matters, we also made a forward-looking request that the court reform its docketing and sealing practices going forward, in order to keep future surveillance matters from staying indefinitely under seal as past matters have done.
Yesterday, Chief Judge Phyllis J. Hamilton issued an opinion and order (available here) affirming the R&R across the board. The court overruled the objections to the R&R that Jennifer and I filed in January of this year. In the opinion, the court concluded that (1) we have no First Amendment right to access any of the five categories of documents we had sought to unseal (nor the docket sheets thereof), and that (2) our presumptive common-law right of access was overcome by the administrative burden that vindicating that right would entail, together with the compelling interests of law enforcement and of the individuals who were investigated (but not charged) in the sealed matters. The court also denied us any prospective relief. Instead, the court pointed to an "ad hoc committee on public access" which Chief Judge Hamilton convened late last year. That committee is "tasked with the responsibility to review the court’s policies and procedures for sealing and unsealing surveillance records." We do not know how long that committee's work will take or what the outcome will be, but I am hopeful that it will recommend meaningful changes and that the court will amend its rules and practices to adopt them.
I did find two bright spots in the opinion. For one, the court rejected the government's unfounded attempt to argue that we lack standing to seek to unseal these records at all. It is well-established that members of the public have standing to seek to unseal sealed court records, and the court refused to depart from that settled law. Also, the court declined to address the government's novel and dangerous argument that administrative burden can trump a constitutional right of access (as opposed to a common-law right, which is not as robust). There is no legal support for that assertion and I am glad the court did not waste time entertaining it.
While it is some small relief to have an answer after nearly three years of waiting, I am disappointed in the district court's ruling. We are reviewing our options for next steps.
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