Reporters Committee sought unsealing of electronic surveillance records
On March 1, 2024, Judge David R. Stras of the U.S. Court of Appeals (8th Circuit) affirmed a ruling of the U.S. District Court for the District of Minnesota that the Reporters Committee for Freedom of the Press (RCFP), a media advocacy group, did not have standing to demand the unsealing of electronic surveillance records because it had only a “generalized, abstract interest” in doing so. Reporters Committee for Freedom of the Press v. United States of America. The Silha Center for the Study of Media Ethics and Law had joined an amicus brief in support of the RCFP’s appeal, prepared by Davis Wright Tremaine on behalf of a media coalition.
In October 2022, Chief Judge Patrick J. Schiltz of the District of Minnesota had dismissed an application by the RCFP seeking access to records regarding all orders permitting searches or surveillance under 18 U.S.C. § 2703(d) of the Stored Communications Act (“SCA”) and 18 U.S.C. § 3121 of the Pen Register Act (“PRA”) (i.e., pen/trap orders). An amended application also sought an order that all application materials would be unsealed presumptively 180 days after filing, unless the government established that continued sealing was necessary to serve a compelling interest. It also asked the Clerk’s Office to create dockets for all applications seeking a warrant or surveillance order under five specific authorities including Federal Rule of Criminal Procedure 41, the SCA, and the PRA, regardless of the outcome of the applications. In his decision, Schiltz stated that the RCFP lacked standing to pursue the application and did not articulate a “concrete plan” or “imminent intent” to review any of the materials it had asked to be unsealed. See In Re Amended Application of the Reporters Committee for Freedom of the Press to Unseal Certain Surveillance Orders and Related Materials.
In its appeal to the Eighth Circuit, the RCFP argued that “the public has a general right to inspect and copy public records and documents, including judicial records and documents” and that “a denial of access ‘inflicts an injury-in-fact,’” Nixon v. Warner Commc’ns, Inc., 435 U.S. 589, 597 (1978); In re Granick, 388 F. Supp. 3d 1107, 1117 (N.D. Cal. 2019). It further argued that the right to observe judicial proceedings and inspect judicial records is “one of the essential qualities of a court of justice” and an “indispensable attribute” of the judicial system. Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 567 (1980). It cited previous cases where courts had “repeatedly recognized that ‘any member of the public has the standing . . . to move the court to unseal the court file.’” Brown v. Advantage Eng’g, Inc., 960 F.2d 1013 (11th Cir. 1992); In re Iowa Freedom of Info. Council, 724 F.2d. 658 (8th Cir. 1983); Davis v. E. Baton Rouge Par. Sch. Bd., 78 F.3d 920 (5th Cir. 1996).
In addressing the lower court’s ruling that the RCFP lacked standing, the organization claimed that like any member of the public or the press, it, too, had a right to court documents and suffered a similar injury-in-fact, and only needed to prove that it was denied access to judicial records it was “arguably entitled to inspect.” The RCFP contended that “[b]efore filing its initial [a]pplication, [it] tried to access [electronic-surveillance] records via . . . CM/ECF [the Case Management/Electronic Case Files system],” but was unsuccessful.
The amicus brief noted that news organizations rely on access to electronic surveillance records to report on issues of tremendous public interest, such as public safety, criminal justice, and government surveillance, and that this right stems from the First Amendment’s protection of the press and of newsgathering. Without the freedom to access documents that reveal how the judicial and law enforcement systems are functioning, the press would be hamstrung in its reporting on these issues. Amici further pointed out that access to surveillance order and search warrant information enhances public oversight over prosecutorial and judicial conduct, and allows the press to promote public scrutiny of government conduct. Countering the argument that the RCFP was not currently seeking specific records, amici pointed out that the press often does not learn about newsworthy matters until materials are docketed or unsealed, and the RCFP’s application was an attempt to obtain a court-wide remedy to that problem. Finally, amici noted that news organizations and others rely heavily on the RCFP because it is “uniquely positioned to gain large-scale access to these records” due to its “long track record of successfully seeking access to electronic surveillance records that aid the press’s reporting on criminal issues.”
However, in his ruling, Stras reiterated that the RCFP failed to provide “concrete plans to review or use the materials,” stating that “A party cannot bring an anticipatory lawsuit to head off an injury that could happen some day [emphasis in the original].” Stras observed that the RCFP should have named the clerk of court as a defendant in its application, and should have cited its prior unsuccessful attempts to access the records in its filings at the district court level. Furthermore, because the RCFP did not provide information regarding “who tried to access the materials, when they tried to do it, or what relationship they had to the [RCFP] [emphasis in the original],” nearly every ingredient necessary for standing was missing. See Reporters Committee for Freedom of the Press v. United States of America.