In the Matter of the Application of Jason Leopold to Unseal Certain Electronic Surveillance Applications and Orders

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 25, 2019 Decided July 7, 2020
No. 18-5276
IN RE: IN THE MATTER OF THE APPLICATION OF JASON
LEOPOLD TO UNSEAL CERTAIN ELECTRONIC SURVEILLANCE
APPLICATIONS AND ORDERS,
JASON LEOPOLD AND REPORTERS COMMITTEE FOR FREEDOM
OF THE PRESS,
APPELLANTS
v.
UNITED STATES OF AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:13-mc-00712)
Katie Townsend argued the cause for appellants. With her
on the briefs was Jeffrey Light.
Christopher T. Bavitz was on the brief for amici curiae
Former United States Magistrate Judges in support of petitioners
and reversal.
Laura R. Handman, Kurt A. Wimmer, Bruce W. Sanford,
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Mark I. Bailen, and David McCraw were on the brief for amici
curiae Media Organizations in support of appellants.
Charles S. Sims was on the brief for amici curiae First and
Fourth Amendment Scholars in support of petitioners-appellants
and in support of reversal.
Aaron D. Mackey was on the brief for amici curiae
Electronic Frontier Foundation and Riana Pfefferkorn in support
of petitioners-appellants.
Peter S. Smith, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jessie K. Liu, U.S.
Attorney, and Elizabeth Trosman, Chrisellen Kolb, and Pamela
S. Satterfield, Assistant U.S. Attorneys.
Before: TATEL and GARLAND, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARLAND.
GARLAND, Circuit Judge: Journalist Jason Leopold and the
Reporters Committee for Freedom of the Press applied to the
district court to unseal certain electronic surveillance orders and
related filings in closed investigations. The district court
Clerk’s Office, the U.S. Attorney’s Office, and the applicants
were able to reach accommodations regarding some of the
applicants’ requests. Although the district court determined that
the documents are judicial records subject to the common-law
right of public access, it denied the remaining requests due to the
administrative burden of unsealing.
The public’s right of access to judicial records is a
fundamental element of the rule of law. Administrative burden
is relevant to how and when a judicial record may be unsealed,
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but not to whether it may be released at all. We therefore
reverse the judgment and remand the case for further
proceedings.
I
A
This case involves three kinds of court orders authorizing
electronic surveillance: judicial warrants issued pursuant to the
Stored Communications Act (SCA), court orders issued pursuant
to § 2703(d) of that Act, and court orders issued pursuant to the
Pen Register Act.
SCA warrants can be used to compel “the disclosure by a
provider of electronic communication service of the contents of
a wire or electronic communication[] that is in electronic
storage” for 180 days or less. 18 U.S.C. § 2703(a). SCA
warrants can also be used to compel the disclosure by a provider
of remote computing service of “the contents of [specified] wire
or electronic communication[s]” without notice to the
subscriber, or to compel “a provider of electronic
communication service or remote computing service to disclose
a record or other information pertaining to” a subscriber. Id.§ 2703(b)(1)(A), (c)(1).1 In federal court, the government may
obtain an SCA warrant “using the procedures described in the
Federal Rules of Criminal Procedure.” Id. § 2703(a), (b)(1)(A),
(c)(1)(A). A law enforcement officer or attorney must submit an
affidavit or other information to a magistrate judge, and the
1
The intricacies of the SCA’s coverage are not relevant here. For
a helpful description, see Orin S. Kerr, A User’s Guide to the Stored
Communications Act, and a Legislator’s Guide to Amending It, 72
GEO. WASH. L. REV. 1208, 1213-20 (2004).
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judge must issue the warrant if there is probable cause. FED. R.
CRIM. P. 41(d).
SCA § 2703(d) orders can be used to access, with notice to
the subscriber, the contents of specified wire or electronic
communications held by a remote computing service or, without
notice, subscriber records held by an electronic communication
or remote computing service. 18 U.S.C. § 2703(b)(1)(B)(ii),
(c)(1)(B), (c)(3). Under the statute, the government can obtain
a § 2703(d) order from a court by offering “specific and
articulable facts showing that there are reasonable grounds to
believe” the records or information sought “are relevant and
material to an ongoing criminal investigation.” Id. § 2703(d).2
Pen register orders authorize law enforcement to install pen
registers and trap-and-trace devices. Pen registers capture
outgoing metadata; trap-and-trace devices capture incoming
metadata. See 18 U.S.C. § 3127(3), (4). Collectively, they tell
the government such things as what number a person dialed,
what address a person was emailed from, and when someone
sent a text. They do not capture the contents of those messages.
2
The Supreme Court has held, under the Fourth Amendment, that
a § 2703(d) order “is not a permissible mechanism for accessing”
historical cell-site location information. Carpenter v. United States,
138 S. Ct. 2206, 2221 (2018). Before compelling a wireless carrier to
turn over that information, the government generally must “get a
warrant” supported by probable cause. Id. The Sixth Circuit has
similarly held that the Fourth Amendment bars the government from
compelling a commercial internet service provider “to turn over the
contents of a subscriber’s emails without first obtaining a warrant
based on probable cause.” United States v. Warshak, 631 F.3d 266,
288 (6th Cir. 2010); see also H.R. REP. NO. 114-528, at 9 (2016)
(noting that, soon after the Warshak decision, the Department of
Justice began using warrants for email in all criminal cases, and that
this “practice became Department policy in 2013”).
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To obtain a pen register order, a government attorney must
certify “that the information likely to be obtained is relevant to
an ongoing criminal investigation.” Id. § 3122(b)(2). A court
must issue the order if it finds that the appropriate certification
has been made. Id. § 3123(a)(1).
SCA warrants, SCA § 2703(d) orders, and pen register
orders allow law enforcement to collect different kinds of
electronic information. But the mechanics of their authorization
are similar: the government submits an application, and a court
issues an order granting or denying the application. Thus, all
three generate similar records that are filed in the court: the
application (and supporting documents) filed by the government,
the order issued by the court, and the court clerk’s docket
entries. Heretofore, the United States District Court for the
District of Columbia has routinely maintained all of those
materials under seal. In re Application of Leopold (Leopold II),
327 F. Supp. 3d 1, 5 (D.D.C. 2018).
B
In July 2013, Jason Leopold, an investigative reporter now
with BuzzFeed News, applied to the district court for an order
unsealing some of those materials. In August 2016, the
Reporters Committee for Freedom of the Press successfully
moved to intervene. Retrospectively -- that is, with respect to
past filings -- the Reporters Committee sought to unseal
applications, supporting documents, and court orders for SCA
warrants, SCA § 2703(d) orders, and pen register orders in
closed investigations. Reporters Committee Appl. 1 (J.A. 34).
Prospectively -- that is, with respect to future filings -- the
Reporters Committee sought access to the court (typically,
magistrate court) docket sheets for those materials, as well as the
eventual unsealing of the underlying materials themselves. Id.
at 1-2 (J.A. 34-35). The applicants argued that “[t]he press and
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the public have a particularly powerful interest in obtaining
access to court documents concerning judicial authorization for
the use of [those] law enforcement tools . . . . [J]udicial
oversight and, in turn, public oversight of the judicial process,
is necessary to guard against government overreach.” Id. at 2
(J.A. 35).
The applicants and the U.S. Attorney’s Office, “with
guidance from [the district] Court, engaged in discussions on
how properly to vindicate, in light of substantial law
enforcement investigative and individual privacy concerns, the
public’s interest in transparency of judicial records concerning
the government’s use of statutorily authorized investigative
tools.” Leopold II, 327 F. Supp. 3d at 6. The government
acknowledged “that applications and orders relating to
electronic surveillance methods need not necessarily be
permanently sealed,” and it released some information. In re
Application of Leopold (Leopold I), 300 F. Supp. 3d 61, 68, 71
(D.D.C. 2018) (quoting Gov’t Resp. 2). The applicants
“clarified that the petition sought no personally identifying
information concerning investigative targets,” id. at 69, and
narrowed their requests. From the record, this case appears to
be marked by remarkable good faith and accommodation.
Guided by the district court, the applicants, the U.S. Attorney’s
Office, and the district court Clerk’s Office took meaningful
steps to improve transparency in this district. We applaud the
district court for its effective work in moving the process
forward.
With respect to past filings, the applicants ultimately
received: (1) information about the total number of electronic
surveillance applications and more specifics about pen register
orders, including basic docket information, for a nine-year
period; (2) certain details that the government “extracted” from
the files of 10% of pen register matters; and (3) the unsealing
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(with redactions) of four “sample” pen register applications and
orders. Id. at 100.
With respect to future filings, the Clerk’s Office and the
U.S. Attorney’s Office entered into a Memorandum of
Understanding. Pursuant to the memorandum, the latter can
now electronically file pen register and SCA § 2703(d)
applications, which are docketed in a standardized format. Id.
at 103-04 & n.37. The dockets are not made available to the
public. Instead, the Clerk’s Office generates semiannual reports
listing docket numbers, case captions, and certain other docket
information on a six-month delay. Id. at 104 n.36.
Despite this admirable cooperation, the parties eventually
reached an impasse. Regarding past filings, the applicants still
sought basic docket information for SCA § 2703(d) matters and
specified details to be extracted from 100% of pen register
matters filed by the U.S. Attorney’s Office since 2008 -- both
involving closed investigations only. Proposed Order 4-5 (J.A.
848-49). The applicants no longer sought any of the actual
documents or any retrospective relief whatsoever with respect
to SCA warrants. Regarding future filings, they requested real-
time access to basic docket information, as well as the
presumptive unsealing at the close of investigations of
applications (and supporting documents), orders, and docket
entries for SCA warrants, SCA § 2703(d) orders, and pen
register orders. Id. at 2-3, 5-8 (J.A. 846-47, 849-52); see
Leopold Br. 3.
The district court denied additional relief and later denied
reconsideration. See Leopold I, 300 F. Supp. 3d 61; Leopold II,
327 F. Supp. 3d 1. The court began by rejecting the applicants’
contention that the First Amendment requires public access to
the requested materials, holding that the applicants had failed to
show that there was a “tradition of openness” with respect to
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those materials, as required by the case law. Leopold I, 300 F.
Supp. 3d at 91 (citing United States v. Brice, 649 F.3d 793, 795
(D.C. Cir. 2011)).
The district court then went on to address the applicants’
contention that they have a common-law right of access to the
same materials. After concluding that each of the three
categories of documents at issue are “judicial records,” the court
applied this circuit’s six-factor Hubbard balancing test for
unsealing judicial records. Id. at 92-97 (citing United States v.
Hubbard, 650 F.2d 293 (D.C. Cir. 1980)); see infra Part II.C
(describing the Hubbard factors). The court found that the
Hubbard factors weighed in favor of access. Leopold II, 327
F. Supp. 3d at 22. Nonetheless, it held that the “significant
administrative burden” of unsealing justified denial of any
access at all to past filings, and to anything more than “limited
information” contained in future filings. Id. at 5, 21; see id. at
7, 22; Leopold I, 300 F. Supp. 3d at 97. The court further held
that the applicants had forfeited their request for real-time access
to docket information. Leopold I, 300 F. Supp. 3d at 106.
The applicants now appeal the denial of their requests for
additional relief. In this court, they acknowledge that they
forfeited their request for real-time docket information,
Recording of Oral Arg. at 9:15-9:23, and emphasize that their
appeal only involves materials from closed investigations, id. at
9:42-9:54. In brief, the applicants still seek three things:
(1) retrospectively, basic docket information for all SCA
§ 2703(d) matters filed from 2008 to the present; (2)
retrospectively, specified details to be extracted from 100% of
pen register matters filed from 2008 to the present; and (3)
prospectively, the presumptive unsealing at the close of
investigations of applications (and supporting documents),
orders, and docket entries for SCA warrants, SCA § 2703(d)
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orders, and pen register orders. See id. at 9:42-9:54, 9:15-9:23;
Proposed Order 2-3, 5-8 (J.A. 846-47, 849-52).
The applicants appeal the district court’s decision on both
First Amendment and common-law grounds. We reach only the
latter. The applicants indicated at oral argument that they
believe they can receive all of the relief they request under the
common law. Recording of Oral Arg. at 22:05-22:20. In light
of the result we reach with respect to the common law, we avoid
unnecessarily passing on a constitutional question of first
impression in this circuit. This approach accords with the
“fundamental and longstanding principle of judicial restraint,”
which “requires that courts avoid reaching constitutional
questions in advance of the necessity of deciding them.”
Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003) (quoting
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,
445 (1988)).
II
The common-law right of public access to judicial records
“is a fundamental element of the rule of law, important to
maintaining the integrity and legitimacy of an independent
Judicial Branch.” MetLife, Inc. v. Fin. Stability Oversight
Council, 865 F.3d 661, 663 (D.C. Cir. 2017). At bottom, it
reflects the antipathy of a democratic country to the notion of
“secret law,” inaccessible to those who are governed by that law.
The right “antedates the Constitution,” id. at 674 (quoting
United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997)),
and has been recognized by this court since at least 1894, see Ex
parte Drawbaugh, 2 App. D.C. 404, 407-08 (1894).
In 1978, the Supreme Court held it was “clear that the
courts of this country recognize a general right to inspect and
copy public records and documents, including judicial records
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and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S.
589, 597 (1978) (footnote omitted). In 1980, in United States v.
Hubbard, our court likewise noted “this country’s common law
tradition of public access to records of a judicial proceeding,”
stressing that “[a]ccess to records serves the important functions
of ensuring the integrity of judicial proceedings in particular and
of the law enforcement process more generally.” 650 F.2d at
314-15. “Like the First Amendment,” we explained, “the right
of inspection serves to produce an informed and enlightened
public opinion. Like the public trial guarantee of the Sixth
Amendment, the right serves to safeguard against any attempt to
employ our courts as instruments of persecution, to promote the
search for truth, and to assure confidence in judicial remedies.”
Id. at 315 n.79 (internal quotation marks and alteration
omitted).3
In light of these considerations, there is a “strong
presumption in favor of public access to judicial proceedings,”
including judicial records. Id. at 317; see MetLife, 865 F.3d at
663. In some cases, that presumption may be outweighed by
competing interests. In Hubbard, we identified such interests,
650 F.2d at 317-22, and subsequent cases crafted them into a
six-factor test, see infra Part II.C & note 9. The “Hubbard test
has consistently served as our lodestar” for evaluating motions
to seal or unseal judicial records “because it ensures that we
fully account for the various public and private interests at
stake.” MetLife, 865 F.3d at 666 (collecting cases). And
Hubbard-like balancing tests are the standard for ruling on
3
See also Cowley v. Pulsifer, 137 Mass. 392, 394 (1884)
(Holmes, J.) (“[I]t is of the highest moment that those who administer
justice should always act under the sense of public responsibility, and
that every citizen should be able to satisfy himself with his own eyes
as to the mode in which a public duty is performed.”).
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motions to seal or unseal judicial records in every circuit. Id. at
671 & n.13 (collecting cases).
A
The district court held that all of the materials at issue here
are judicial records, Leopold I, 300 F. Supp. 3d at 92, a ruling
the government does not contest. As we have previously
explained, “not all documents filed with courts are judicial
records.” SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013).
Rather, “whether something is a judicial record depends on ‘the
role it plays in the adjudicatory process.’” Id. (quoting
El-Sayegh, 131 F.3d at 163); see League of Women Voters v.
Newby, No. 19-7027, slip op. at 7 (D.C. Cir. June 26, 2020). We
agree with the district court that the materials the applicants seek
are judicial records.
As set forth in Part I, the requested materials include three
kinds of court orders -- SCA warrants, SCA § 2703(d) orders,
and pen register orders, which we collectively refer to as
“electronic surveillance orders” -- as well as applications for
such orders, their supporting documents, and associated court
dockets.4
There is no doubt that the court orders themselves are
judicial records. Court decisions are the “quintessential business
of the public’s institutions.” EEOC v. Nat’l Children’s Ctr.,
Inc., 98 F.3d 1406, 1409 (D.C. Cir.1996). And the issuance of
public opinions is core “to the transparency of the court’s
decisionmaking process.” MetLife, 865 F.3d at 668. Indeed,
since at least the time of Edward III, judicial decisions have
been held open for public inspection. 3 EDWARD COKE,
4
We do not consider other kinds of electronic surveillance orders
or their related filings.
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REPORTS, at iii-iv (London, E. & R. Nutt & R. Gosling 1738)
(1602).5 It is not surprising, therefore, that the only other circuit
to have specifically considered SCA § 2703(d) orders has held
that they are judicial records. In re Application of United States
(Appelbaum), 707 F.3d 283, 290-91 (4th Cir. 2013).
The same is true of applications for such orders and their
supporting documents (e.g., accompanying affidavits). In
MetLife, we held that appellate briefs and appendices are judicial
records because they are “intended to influence” the court and
the court “ma[kes] decisions about them.” 865 F.3d at 668
(internal quotation marks omitted); see League of Women
Voters, slip op. at 8. Applications for electronic surveillance
orders and their supporting documents are likewise intended to
influence the court, and the relevant orders are certainly
“decisions about them.” Our sister circuits have held that the
closest (although not perfect) analogues -- search warrant
applications and supporting affidavits -- are judicial records.6
5
See 3 COKE, supra, at iii-iv (“These records . . . are faithfully
and safely kept . . . . And yet not so kept but that any subject may for
his necessary use and benefit have access thereunto, which was the
ancient law of England, and so is declared by an Act of Parliament in
[1372].” (capitalization altered)).
6
See, e.g., United States v. Sealed Search Warrants, 868 F.3d
385, 390 (5th Cir. 2017) (holding “that the qualified common law
right of access can extend to an individual seeking to access pre-
indictment search warrant materials,” including, in that case,
supporting affidavits); United States v. Bus. of the Custer Battlefield
Museum & Store, 658 F.3d 1188, 1193 (9th Cir. 2011) (holding that
“[a]ffidavits in support of seizure or search warrants . . . clearly fall
within the definition of judicial documents” (internal quotation marks
omitted)); In re Application of Newsday, Inc., 895 F.2d 74, 79 (2d Cir.
1990) (recognizing that a search warrant application is “a public
document subject to a common law right of access”); Balt. Sun Co. v.
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And the Fourth Circuit has held that Ҥ 2703(d) motions are
‘judicial records’ because they [are] filed with the objective of
obtaining judicial action or relief pertaining to § 2703(d)
orders.” Appelbaum, 707 F.3d at 291.
We reach the same conclusion regarding court dockets.
Although judges do not always rely upon dockets themselves in
reaching decisions, dockets are nonetheless judicial records
because they are “created and kept [by courts] for the purpose of
memorializing or recording . . . matter[s] of legal significance.”
Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897,
905 (D.C. Cir. 1996). In a docket, a judge or clerk “briefly notes
all the proceedings and filings in a court case.” Docket,
BLACK’S LAW DICTIONARY (11th ed. 2019). A court case is by
definition a “matter of legal significance,” and the docket
memorializes it. Moreover, dockets provide a “kind of index to
judicial proceedings and documents,” facilitating public access
to the underlying documents. Hartford Courant Co. v.
Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004). It would make little
sense to provide public access to court documents but not to the
indices that record them and thus make them accessible.
Accordingly, we agree with the district court that all of the
requested materials are judicial records.
Goetz, 886 F.2d 60, 64 (4th Cir. 1989) (holding that “affidavits for
search warrants are judicial records”); cf. Cowles Publ’g Co. v.
Murphy, 637 P.2d 966, 969 (Wash. 1981) (“Access to search warrants
and affidavits of probable cause can reveal how the judicial process is
conducted. The procedures employed by the prosecutor and law
enforcement can be evaluated. Access may also disclose whether the
judge is acting as a neutral magistrate.”).
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B
Having found that the requested materials are judicial
records, the district court next concluded that a “common law
presumption of access thus attaches . . . , which the government
can rebut only by showing competing interests that compel a
conclusion that justice requires maintaining a seal. The
Hubbard factors govern this analysis.” Leopold I, 300 F. Supp.
3d at 92 (internal quotation marks, alterations, and citations
omitted). The government does not dispute this conclusion.
But the common-law inquiry must yield “when Congress
has spoken directly to the issue at hand.” MetLife, 865 F.3d at
669 (quoting Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918,
937 (D.C. Cir. 2003)). The relevant statute is the Electronic
Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-
508, 100 Stat. 1848. The Stored Communications Act is Title
II of the ECPA. The Pen Register Act is Title III. We draw
different conclusions for SCA warrants and SCA § 2703(d)
orders on the one hand, and pen register orders on the other.
The Stored Communications Act authorizes courts to issue
SCA warrants and § 2703(d) orders. See 18 U.S.C. § 2703. As
the government acknowledges, the SCA “does not require the
sealing of warrants or § 2703(d) orders and applications in
support thereof.” Gov’t Br. 11. Nor does it mention sealing at
all. It does authorize the government to seek a separate order
prohibiting the service provider from notifying anyone about the
electronic surveillance order, “for such period as the court
deems appropriate” to protect specified law enforcement
interests in connection with ongoing investigations. 18 U.S.C.
§ 2705(b). But because, as the government agrees, the SCA
contains no “default sealing or nondisclosure provisions,” Gov’t
Br. 28, “Congress has [not] spoken directly to the issue at hand,”
and the common-law rule applies, MetLife, 865 F.3d at 669
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(quoting Ctr. for Nat’l Sec. Studies, 331 F.3d at 937). See
Appelbaum, 707 F.3d at 291 (holding that, because Ҥ 2703(d)
orders are ‘judicial records,’ the common law presumption of
access attaches to these documents”).
The Pen Register Act, however, is different. It provides that
a pen register order “shall direct that . . . the order be sealed until
otherwise ordered by the court.” 18 U.S.C. § 3123(d)(1). By
expressly directing sealing until the court orders otherwise,
Congress has displaced the usual presumption in favor of access.
Nonetheless, the Act does not require that pen register orders be
sealed, and by authorizing the court to order otherwise,
Congress plainly contemplated that unsealing may occur.
Moreover, because Congress did not specify a standard for
making the unsealing determination, it did not displace the
common-law standard enshrined in the Hubbard balancing test.
A contrary conclusion would contradict “a fundamental norm of
our judicial system: that judges’ decisions and their rationales
must be available to the public. We would not expect Congress
to upset such a norm without saying so.” MetLife, 865 F.3d at
675 (citation omitted).7
7
As this court has previously noted, the Pen Register Act’s
sealing provision refers only to pen register orders; it says nothing
about applications, supporting documents, or dockets. See Labow v.
DOJ, 831 F.3d 523, 528 (D.C. Cir. 2016) (citing 18 U.S.C.
§ 3123(d)(1)). In Labow, we held that the Pen Register Act was a
qualifying statute under Exemption 3 of the Freedom of Information
Act because it “specifically exempted” such orders from disclosure, id.
at 527 (quoting 5 U.S.C. § 552(b)(3)(A)), but we found it unnecessary
to address whether the Pen Register Act “authorizes withholding
documents other than a pen register order,” id. at 528. Similarly, we
need not decide today whether the Act displaces the usual presumption
in favor of access to pen register materials other than the orders
themselves, because we think it unlikely that -- even with different
presumptions -- the district court will find that the Hubbard test yields
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A useful comparison is to Federal Rule of Criminal
Procedure 6(e)(6), which provides that “[r]ecords, orders, and
subpoenas relating to grand-jury proceedings must be kept under
seal to the extent and as long as necessary to prevent the
unauthorized disclosure of a matter occurring before a grand
jury.” Unlike the Stored Communications Act, the Rule
expressly directs secrecy as the default position, and thus
displaces the common-law right of access. See In re Motions of
Dow Jones & Co., 142 F.3d 496, 504 (D.C. Cir. 1998). And
unlike the Pen Register Act, Rule 6(e)(6) also specifies a
standard for sealing -- “as long as necessary to prevent the
unauthorized disclosure of a matter occurring before the grand
jury.” That standard is different from the interests balanced in
the Hubbard test, and hence displaces that test as well.8
In sum, with respect to SCA materials, we conclude that
Congress displaced neither the common-law presumption of
access nor the Hubbard test for making unsealing decisions.
With respect to pen register orders, we conclude that Congress
did displace the presumption, but did not displace the Hubbard
a different result for pen register orders than for their supporting
materials.
8
Another comparison is to the Wiretap Act, which as amended
is contained in Title I of the ECPA. The Wiretap Act states:
“Applications made and orders granted under this chapter shall be
sealed by the judge. . . . Such applications and orders shall be
disclosed only upon a showing of good cause before a judge of
competent jurisdiction . . . .” 18 U.S.C. § 2518(8)(b) (emphases
added). Although we do not address wiretap orders in this opinion, we
note that the Second Circuit has held that this provision creates a
“categorical presumption against disclosure.” In re Application of
N.Y. Times Co., 577 F.3d 401, 407 n.3 (2d Cir. 2009). We also note
that, unlike the Pen Register Act but like Rule 6(e)(6), the Wiretap Act
establishes its own standard for unsealing: “good cause.”
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test as the standard for unsealing. Therefore, when faced with
a request to unseal either kind of material, the district court
should apply the traditional Hubbard balancing test -- albeit
without a thumb on the scale in the case of pen register orders.
C
Having concluded that the documents sought by the
applicants are judicial records to which the Hubbard test applies,
we now address the applicants’ principal challenge to the
manner in which the district court applied that test: the court’s
determination not to unseal the records because of the
administrative burden required.
Under the Hubbard test, a “seal may be maintained only ‘if
the district court, after considering the relevant facts and
circumstances of the particular case, and after weighing the
interests advanced by the parties in light of the public interest
and the duty of the courts, concludes that justice so requires.’”
MetLife, 865 F.3d at 665-66 (quoting In re NBC, 653 F.2d 609,
613 (D.C. Cir. 1981)). We review the decision to seal or unseal
for abuse of discretion. El-Sayegh, 131 F.3d at 160. “Whether
the lower court applied the proper legal standard in exercising
[its] discretion, however, is a question of law reviewed de
novo.” Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d
346, 349 (D.C. Cir. 2003).
The Hubbard test requires a district court to weigh the
following six factors:
(1) the need for public access to the documents at
issue; (2) the extent of previous public access to the
documents; (3) the fact that someone has objected to
disclosure, and the identity of that person; (4) the
strength of any property and privacy interests asserted;
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(5) the possibility of prejudice to those opposing
disclosure; and (6) the purposes for which the
documents were introduced during the judicial
proceedings.
MetLife, 865 F.3d at 665 (quoting Nat’l Children’s Ctr., 98 F.3d
at 1409).9
In this case, the district court found that those factors
weighed in favor of the applicants’ retrospective access to the
information they seek and that five of the six factors weighed in
favor of disclosure on a prospective basis. Leopold I, 300 F.
Supp. 3d at 97.10 In so holding, the court emphasized that “[t]he
limited scope of the [applicants’] claim is significant -- [they]
seek access only to . . . materials from closed criminal
investigations, and only to those portions of such materials that
do not reveal personally identifying information.” Id. at 91.
“As such,” the court explained, “the USAO [U.S. Attorney’s
Office] does not contend that disclosure would impede an
ongoing criminal investigation or reveal information that would
impinge on personal privacy.” Id.
9
This court has repeatedly held that those are the factors a court
should weigh in ruling on a motion to seal or unseal a judicial record.
See MetLife, 865 F.3d at 665; Hardaway v. D.C. Housing Auth., 843
F.3d 973, 980 (D.C. Cir. 2016); Primas v. District of Columbia, 719
F.3d 693, 698-99 (D.C. Cir. 2013); In re Sealed Case, 237 F.3d 657,
666 (D.C. Cir. 2001); Nat’l Children’s Ctr., 98 F.3d at 1409; Johnson
v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 & n.14 (D.C.
Cir. 1991).
10
The only one of the six factors that the court found to weigh
against disclosure was “the extent of previous public access to the
documents.” Leopold I, 300 F. Supp. 3d at 94-95.
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Nonetheless, the court held that there is no right of access
at all to previously filed materials, “in consideration of the
significant administrative burdens that retrospective disclosure
would impose on the Clerk’s Office and USAO.” Id. at 108. As
for future filings, the court recognized only “a limited
prospective right of access to certain information” contained in
the filings, but not to the filings themselves. Leopold II, 327
F. Supp. 3d at 22. The district court held that “significant
administrative burden” defeats any right of access beyond that
afforded by the Memorandum of Understanding between the
Clerk’s and U.S. Attorney’s Offices -- to which the applicants
were not parties. Id. at 21; Leopold I, 300 F. Supp. 3d at 105
n.38. Pursuant to that memorandum, the Clerk’s Office
generates semiannual reports that list docket numbers, case
captions, and certain other information. Leopold I, 300 F. Supp.
3d at 104 n.36. The reports are not the court dockets themselves
and do not indicate whether an application for a warrant or order
was granted or denied. See, e.g., Mot. for Judicial Notice Ex. B,
Attach. A.
“[U]nder Hubbard,” the district court said, “a court may
consider administrative burden in deciding whether to recognize
any right of access in the first place, not [just] that such a right
of access exists but nonetheless gives way to countervailing
considerations.” Leopold II, 327 F. Supp. 3d at 27. A “court
may conclude that no asserted common law right of access
exists in the first place where recognizing such right of access
would impose undue administrative burdens.” Id. The
government does not defend that conclusion.
Hubbard does not resolve the question before us.
Administrative burden is not one of the factors listed in the
Hubbard test, which we adopted to “fully account for the
various public and private interests at stake” in sealing or
unsealing judicial records. MetLife, 865 F.3d at 666. In
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concluding that administrative burden is a permissible factor, the
district court relied upon Hubbard’s further statement that a
court may consider “particularized privacy or other interests”
offered by the party opposing unsealing. Leopold II, 327 F.
Supp. 3d at 27 (quoting Hubbard, 650 F.2d at 323). That phrase
is not included in any of this circuit’s subsequent lists of the
relevant factors -- the closest of which (as quoted above) is “the
strength of any property and privacy interests asserted.”
MetLife, 865 F.3d at 665 (quoting Nat’l Children’s Ctr., 98 F.3d
at 1409); see supra note 9 (collecting cases).
Nor did Hubbard itself mention administrative burden as a
“particularized . . . other interest,” discussing instead only “types
of particularized privacy interests.” 650 F.2d at 323, 324
(emphasis added). Moreover, it used the term “particularized”
to describe “reasons based on the documents’ contents which
might have been thought by the trial judge to justify his
unsealing order” with respect to those particular documents.
Hubbard did not use the term to describe reasons for sealing
entire categories of past and future filings. Id. at 322.11
11
See, e.g., Hubbard, 650 F.2d at 318 n.99 (“We treat the
question whether public access should be granted to particular
documents which have already entered the public domain through
other channels under our discussion of the ‘particularized interests’ at
stake.”); id. at 323 n.116 (“[T]he potential for prejudice inherent in the
documents’ release must be assessed with specific reference to the
documents’ contents. The possibility of prejudice is thus another
‘particularized’ interest which may be asserted to deny public
access.”); id. at 324 (providing that the parties should be given the
chance to “articulate any particularized privacy interest they wish to
assert with respect to a document that is to be released”); see also
MetLife, 865 F.3d at 665 (requiring consideration of “the relevant facts
and circumstances of the particular case” (emphasis added) (internal
quotation marks omitted)).
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In re Sealed Case, in which we recognized that
“administrative burdens [can] justif[y] the denial of across-the-
board docketing” of grand jury ancillary proceedings, is not to
the contrary. 199 F.3d 522, 527 (D.C. Cir. 2000). As we
explained there, “the grand jury context is unique. It is because
of their unique status that grand jury processes are not amenable
to the practices and procedures employed in connection with
other judicial proceedings.” Id. at 526. Indeed, as we noted
above, Federal Rule of Criminal Procedure 6(e)(6) provides that
records “relating to grand-jury proceedings must be kept under
seal to the extent and as long as necessary to prevent the
unauthorized disclosure of a matter occurring before a grand
jury.” That Rule expressly makes secrecy the default and thus
displaces the common-law right of access. See Dow Jones, 142
F.3d at 504; supra Part II.B.
This is not to say that administrative burden is irrelevant in
a court’s consideration of a motion to unseal judicial records.
Here, for example, the district court did not point to burden as
something that it simply would rather not impose on the
government and Clerk’s Office. Rather, it pointed to burden as
a concern related to other factors that are expressly recognized
in the Hubbard test: namely, preventing prejudice to open
investigations and protecting privacy interests. See MetLife, 865
F.3d at 665. As the district court explained, it declined to
recognize a retrospective right of access “in light of the
considerable administrative burden that such extensive unsealing
. . . would impose on the USAO and the Clerk’s Office, due to
the necessity of identifying, reviewing and redacting sensitive
law enforcement and privacy-protected information from any
unsealed records.” Leopold II, 327 F. Supp. 3d at 7.
The applicants recognize these concerns. In the district
court, they accepted information extracted from pen register
orders, rather than insisting on release of the orders themselves,
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in order to minimize the risk of “inadvertent disclosure” that
could occur even with redaction. Leopold I, 300 F. Supp. 3d at
77. At oral argument, they acknowledged that the government
and court must be able to redact documents in order to protect
privacy and law enforcement interests. Recording of Oral Arg.
at 11:25-11:46. And we do not understand them to take issue
with the suggestion, raised at oral argument, that the district
court can generally leave it to the government to decide in good
faith when investigations are truly closed, taking into account
related cases that could be damaged by premature disclosure of
surveillance and particular difficulties that could arise if the
lawyers involved have left the government. Id. at 51:38-52:44.
The applicants may argue about the application of those
concerns to individual documents, but they accept their
importance.
It is undisputed, then, that in considering the legitimate
interests identified in Hubbard, a court may reasonably find that
the administrative burden of protecting those interests should
affect the manner or timing of unsealing. As the district court
said, the Clerk’s Office cannot simply press “print” and unseal
docket information that might jeopardize personal privacy or
ongoing investigations. Leopold I, 300 F. Supp. 3d at 98. The
applicants cannot and do not expect the U.S. Attorney’s and
Clerk’s Offices to disclose records without redactions or to drop
everything and make unsealing their top priority.
But although administrative burden is relevant to how and
when documents are released, it does not justify precluding
release forever. The records at issue here are not nailed into a
nondescript crate, stored deep in a sprawling, uncataloged
warehouse. Cf. RAIDERS OF THE LOST ARK (Lucasfilm Ltd.
1981). Production may be time-consuming, but time-consuming
is not the same thing as impossible.
-23-
For example, the district court denied the applicants’
request for additional information from past pen register filings
because it would “divert significant amounts of valuable
[Assistant U.S. Attorney] time and resources.” Leopold I, 300
F. Supp. 3d at 98. Based on the government’s previous
extraction of the same information for 10% of pen register
matters, the court estimated that extracting information for the
remaining matters would take -- at the high end -- “nearly
twenty 40-hour work weeks.” Id.12 Twenty 40-hour work
weeks is not an insubstantial amount of time. But for five
people, extraction would take only four weeks. Over two years,
that becomes only two weeks per year. Although we do not
denigrate the substantial amount of work involved, which will
undoubtedly take people away from other important tasks, at
some point the work becomes spread out over enough people
and enough time that the burden is minimized.
Treating administrative burden as dispositive with regard to
public access to judicial records would also lead to unacceptable
differences between districts. The number of electronic
surveillance orders of different kinds varies substantially
between judicial districts.13 If burden were dispositive, judicial
12
Similarly, the court cited administrative burden in denying the
applicants’s request for basic docket information from past SCA
§ 2703(d) filings, essentially the same kind of information the court
had previously released regarding pen register matters. The court
noted that providing the pen register information had taken “several
Court and Clerk’s Office personnel days to complete,” and that
providing similar information regarding § 2703(d) materials was likely
to take even more time. Leopold I, 300 F. Supp. 3d at 99.
13
Cf. U.S. Courts, Wire A1 (Dec. 31, 2018),
https://www.uscourts.gov/statistics/table/wire-a1/wiretap/2018/12/31;
see 18 U.S.C. § 2519(1).
-24-
records of precisely the same kind could be publicly accessible
in some districts and not others.
Nor would this result be limited to interdistrict variances.
If administrative burden could justify the permanent sealing of
electronic surveillance orders, there would be no basis for failing
to extend that holding to the many other kinds of sensitive
filings in the general dockets of district judges. Hence, the same
documents could be publicly accessible not only in some courts
and not others, but also in the dockets of judges with fewer such
filings and not in those with many more, even in the same court.
That result would also be unacceptable. Obtaining access may
take longer from a district or judge with a larger number of
orders than another, but at the end of the day (or many days), the
same kind of record should be accessible from both.
Accordingly, in our judgment, the burden of producing
judicial records may not permanently foreclose their unsealing.
III
Providing public access to judicial records is the duty and
responsibility of the Judicial Branch.14 Precluding public access
because of the personnel-hours required to produce those
records is no more warranted than precluding public access to
high-profile trials because of the costs of crowd control.
Administrative burden, when taken into consideration as
necessary to protect other relevant interests, may affect how and
when judicial records may be released. But it is not dispositive
of whether judicial records may be released at all.
14
This is not to suggest that the administrative burden must fall
entirely on court personnel. Redaction, for example, is a task best
undertaken (or at least proposed) by the governmental entity that
submitted the surveillance application in the first place.
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The district court has already taken important steps to
increase the transparency of filings related to the electronic
surveillance orders at issue on this appeal. We remand the case
to that court to determine, in its sound discretion, how and when
greater access can be provided.15
Reversed and remanded.
15
We are fully aware that the current coronavirus pandemic has
imposed -- and will continue to impose -- enormous burdens on the
normal operations of the Clerk’s Office and U.S. Attorney’s Office.
Needless to say, the district court may take those burdens into account
in determining “how and when” greater access can be provided.