In Re Application of the New York Times Company

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

IN RE APPLICATION OF THE NEW
YORK TIMES COMPANY FOR ACCESS
TO CERTAIN SEALED COURT Miscellaneous Action No. 21-91 (JEB)
RECORDS.

MEMORANDUM OPINION

In 2017, The New York Times published an article that described in depth how then-FBI

Director James Comey had handled the investigation into former Secretary of State Hillary

Clinton’s private email servers. The article contained classified information. Nearly three years

later, in December 2020, the Government sought to learn more about communications between

the potential leaker(s) of that information and the four Times reporters who had worked on that

story. It thus applied to a magistrate judge for an order requiring Google, which administered the

Times’s email system, to confidentially provide certain non-content information about emails

sent by and to those reporters during the relevant period. After news of these and subsequent

court filings became public, the Times — understandably concerned by these developments —

sought access from this Court to the Application, a subsequent Motion by the Government, and

associated materials on the case’s docket. As the Government has now agreed to release parts of

the Application, the entirety of the relevant Motion, and the other docket entries in the case with

only a few minor redactions, this dispute has been narrowed considerably.

The Court now concludes that nearly all of the remaining redacted information in the

Application should stay under seal and will thus deny the Times’s Motion for Access to the

Application except as to one specific piece of information: the name of the Assistant U.S.

Attorney who filed the Application. It will also order that the docket itself and the remaining

1
docket entries in the underlying case, In re Application of USA for 2703(d) Order for Six Email

Accounts Serviced by Google LLC for Investigation of Violation of 18 U.S.C. §§ 641 and 793,

No. 20-sc-3361, be unsealed consistent with the limited redactions proposed by the Government.

I. Background

The 2017 New York Times article that ignited this case described then-Director Comey’s

handling of the investigation into Hillary Clinton’s private email servers during the 2016

Presidential campaign. It focused in particular on decisions by the FBI about when to make

various announcements discussing the progress of the investigation, given the sensitive timing of

the upcoming election. See ECF No. 1 (Times Motion to Unseal) at 3; Matt Apuzzo, Michael S.

Schmidt, Adam Goldman, & Eric Lichtblau, Comey Tried to Shield the F.B.I. from Politics. Then

He Shaped an Election, The New York Times (Apr. 22, 2017), https://nyti.ms/3CdK8Rt. The

article was based on interviews with current and former law-enforcement and other Government

officials. See Times Mot. at 3. It also included classified information, which was not

specifically identified as such and which was not “authorized for disclosure and remains

classified to this day.” ECF No. 14 (Redacted App.) at 5. As a result, following the article’s

publication, an agency in the intelligence community “made a criminal referral” in the summer

of 2017, which led to an investigation by the FBI and prosecutors at the Justice Department. Id.

In December 2020, three years down the road, the Government filed an Application under

seal for an order pursuant to the Stored Communications Act, 18 U.S.C. § 2703(d), to collect

information from Google about the emails of four current or former Times journalists. See

Times Mot. at 2; see also Redacted App. The Application covered only non-content information

such as to whom the emails were sent and when they were sent and received. See Case No. 20-

2
sc-3361, ECF No. 1 (Jan. 5 Order) at 4–5 (available at https://bit.ly/3C6q4k0); see also Times

Mot. at 5.

Magistrate Judge Zia Faruqui granted the Application on January 5, 2021. See Jan. 5

Order at 1–2. His Order prevented Google from disclosing the existence of the Order for one

year, a restriction that was included because “there is reason to believe that notification of the

existence of this Order will seriously jeopardize the ongoing investigation, including by giving

targets an opportunity to destroy or tamper with evidence.” Id. at 1–2. Several months later,

Magistrate Judge Faruqui granted the Government’s ex parte motion of February 25, 2021. This

modified the January 5 Order by permitting Google to tell the Times’s Deputy General Counsel

David McCraw about the prior order, but prohibited McCraw from sharing news of the Order

with other Times leadership or the reporters themselves. See Case No. 20-sc-3361, ECF No. 4

(March 3 Order); see also Times Mot. at 2. Other materials on the docket before Magistrate

Judge Faruqui were also kept under seal as the case proceeded.

In spring 2021, the Times’s outside counsel contacted the Justice Department and the

Assistant U.S. Attorney involved in the case before Magistrate Judge Faruqui to request that they

withdraw the Application and permit greater disclosure of the court’s orders. See Times Mot. at

7. In early June, Magistrate Judge Faruqui approved requests from the Government “to quash

the January 5 Order and the March 3 Order, thus freeing Mr. McCraw to tell the four reporters,”

as well as Times leadership and members of the public about the Order. Id. Magistrate Judge

Faruqui also partially unsealed other docket entries in the case at the Government’s request. See

ECF No. 11 (Government Motion to Partially Unseal) at 3 n.1. Additionally, Justice informed

the reporters that it had obtained several months of their 2017 phone records and had

unsuccessfully sought non-content information about their emails. See Times Mot. at 7.

3
 On June 8, 2021, shortly after these disclosures were made, the Times filed the Motion

for Access to Certain Sealed Court Records now before this Court seeking to unseal the

Application, the Government’s ex parte motion from February 25, 2021, the docket itself in the

underlying case, and the redactions that remained on docket entries in that case. The

Government responded by moving to partially unseal the Application. See Gov. Mot. at 1. This

Court granted that motion, but as the Times pointed out in its reply, this still left redacted

significant portions of the Application related to the investigation. See Minute Order of

September 20, 2021; ECF No. 16 (Times Reply). The Government also noted that its ex parte

motion seeking to limit disclosure to only one lawyer at the Times had already been unsealed at

the Government’s request and thus need not be addressed. See Gov. Mot. at 3 n.1.

As the Government had not fully responded to the Times’s motion in regard to the entries

numbered ECF Nos. 2–17 on the docket in In re Application of USA for 2703(d) Order for Six

Email Accounts Serviced by Google LLC for Investigation of Violation of 18 U.S.C. §§ 641 and

793, Case No. 20-sc-3361, in October 2021, this Court ordered the Government to file a pleading

addressing which redactions it wished to maintain on those entries. See Minute Order of October

28, 2021. In that pleading, the Government agreed to lift many of the redactions it had originally

proposed on the docket entries, including those covering the following areas: the specific

criminal statutes in the underlying investigation; material identifying executives, reporters, and

counsel for the Times; and the names of Google’s counsel and the Government’s attorneys. See

ECF No. 18 (Government Resp. to Order of the Court) at 1. It also shared a PDF of the case

docket that contained no redactions other than one obscuring a lawyer’s PACER username. This

leaves only two minor redactions for the Court to consider on the docket entries: 1) one set

containing the four reporters’ full email addresses in Attachment A to the January 5, 2021, Order;

4
and 2) one phrase-long redaction on the Motion to Withdraw the Application filed in June 2021.

See Gov. Resp. at 2. The Court need not address the redaction of the PACER username because

it orders that the docket itself be unsealed consistent with the Government’s motion and

Magistrate Judge Faruqui’s order of June 30, 2021. See Gov. Mot. at 3.

So where does that leave us? The Times still seeks the unsealing of two categories of

material: 1) many of the remaining redactions in the Government’s § 2703(d) Application; and 2)

the two related docket entries in case 20-sc-3361. See Times Mot. at 2. As the former category

is considerably larger, the Court spends most of its discussion there. It also notes that it is has

reviewed in camera all outstanding redactions.

II. Analysis

The Times requests access to judicial records under both the common law and the First

Amendment, which entail separate but similar inquiries. The Court looks at them in turn.

A. Common-Law Right of Access

“In the courts of this country — including the federal courts — the common law bestows

upon the public a right of access to public records and documents.” Wash. Legal Found. v. U.S.

Sentencing Comm’n, 89 F.3d 897, 902 (D.C. Cir. 1996) (internal quotation marks omitted). This

doctrine of transparency, which includes the right to access “judicial records,” Nixon v. Warner

Commc’ns, Inc., 435 U.S. 589, 597 (1978), is grounded in the public’s “interest in keeping a

watchful eye on the workings of public agencies.” SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C.

Cir. 2013) (internal quotation marks and citation omitted). “[E]nsuring the integrity of judicial

proceedings” serves as another pillar of this mission. See Metlife, Inc. v. Fin. Stability Oversight

Council, 865 F.3d 661, 665 (D.C. Cir. 2017) (citation omitted). Given these underpinnings, the

5
public’s entitlement to judicial records “is fundamental to a democratic state.” Id. (citation

omitted).

The Times believes that under this common-law right of access, some of the remaining

redactions in the Government’s Application and in other docket entries should be lifted. To

succeed on this claim, the Times must clear two hurdles. First, it must demonstrate that the

information it seeks access to in fact qualifies as a “judicial record.” In re Fort Totten Metrorail

Cases, 960 F. Supp. 2d 2, 6 (D.D.C. 2013) (citing Wash. Legal Found., 89 F.3d at 902). Whether

this requirement is satisfied depends on “the role [the document] plays in the adjudicatory

process.” United States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997). Something “intended

to influence” a court’s pending decision — such as a party’s brief — is most likely a judicial

record, see Metlife, 865 F.3d at 668, while a document would not qualify if it is one that the

court “made no decisions” about and did not “otherwise rel[y]” on. See Am. Int’l Grp., 712 F.3d

at 3–4.

A court’s conclusion that a document constitutes a judicial record triggers a “strong

presumption in favor of public access.” EEOC v. Nat’l Children’s Ctr., Inc., 98 F.3d 1406, 1409

(D.C. Cir. 1996) (citation omitted). But making it over this first bar is not enough to entitle the

moving party to view the records it seeks, as the common-law “right is not absolute.” Am. Int’l

Grp., 712 F.3d at 3. Rather, at the second stage of the Court’s inquiry, it must determine whether

“the government’s interest in secrecy outweighs the public’s interest in disclosure.” Id. To map

this broad inquiry on to a particular factual circumstance, the D.C. Circuit has developed a six-

pronged test, known as the Hubbard factors, which “fully account[s] for the various public and

private interests at stake.” Metlife, 865 F.3d at 665–66 (citing United States v. Hubbard, 650

F.2d 293, 317–22 (D.C. Cir. 1980)). These factors are:

6
 (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;

(5) the possibility of prejudice to those opposing disclosure; and

(6) the purposes for which the documents were introduced during
the judicial proceedings.

Nat’l Children’s Ctr., 98 F.3d at 1409 (citing Hubbard, 650 F.2d at 317–22). A finding in favor

of the Government “might act to overcome th[e] presumption” in favor of access. Id.

1. Judicial Records

There is no question that the Application is a judicial record. The D.C. Circuit has

explained that “applications for [18 U.S.C. § 2703(d)] orders and their supporting documents

(e.g., accompanying affidavits)” are judicial records. In re Leopold to Unseal Certain Elec.

Surveillance Applications & Ords., 964 F.3d 1121, 1128 (D.C. Cir. 2020). The other documents

with redactions are Attachment A to the January 5 Order, the Motion to Withdraw the

Application, and the docket itself. Although neither party addresses the status of these

documents, there is no reason to believe that they are not judicial records as well. Id. at 1128–29

(court orders and dockets are judicial records); see also Metlife, 865 F.3d at 667 (brief is judicial

record). The Court is thus free to turn to the Hubbard factors.

2. Hubbard Factors: Section 2703(d) Application

The conclusion that the Application is a judicial record creates a presumption in favor of

its disclosure. See Wash. Legal Found., 89 F.3d at 902. The question of whether the redactions

7
should remain in place then turns on whether the six Hubbard factors sufficiently tip the scales

back in the Government’s favor. See Nat’l Children’s Ctr., 98 F.3d at 1409.

At the outset, the Times acknowledges that portions of the Application “can and should

remain under seal,” and it is “not asking this Court to lift redactions that would reveal the

source(s) of information obtained as part of The Times’s newsgathering efforts, or the methods

by which the Times may have communicated with its source(s).” Times Reply at 5. Many of the

redactions in fact fall into this category, which both parties agree should remain sealed. The

Court also recognizes that the Times is in the unenviable position of having to argue for access to

information that it cannot be sure is contained in the record. In fact, much of the information that

the Times hopes to acquire — such as details on the officials involved in authorizing the

surveillance, the basis for secrecy, and the role of any political pressures — does not appear in

the Application. Cf. Times Reply at 1. With those caveats, the Court will now consider how

each Hubbard prong applies to the information redacted.

The first prong is “the need for public access to the documents at issue.” Nat’l Children’s

Ctr., 98 F.3d at 1409. The D.C. Circuit recently admonished that in assessing the need for public

access, a district court “should consider the public’s need to access the information that remains

sealed, not the public’s need for other information sought in the overall lawsuit.” CNN v. FBI,

984 F.3d 114, 119 (D.C. Cir. 2021). The Government asserts that “any need for public access

here is satisfied by release of the portions of the Application which the government seeks to

unseal.” Gov. Mot. at 5 n.3. The Times rejoins that “the public . . . has a powerful interest in

learning what the Government included (or chose not to include) in its Application that would

lead the Court to” determine that notifying the Times when the Application was granted could

have disrupted the investigation. See Times Mot. at 13. The Court concurs generally with the

8
Times that there is a strong public interest in understanding on what basis the Government

sought to surveil members of the media.

The Court next considers “the extent of previous public access to the documents.” Nat’l

Children’s Ctr., 98 F.3d at 1409. In assessing this factor, it must look to the “the public’s

previous access to the sealed information, not its previous access to the information available in

the overall lawsuit.” CNN, 984 F.3d at 119. When the Times filed its initial motion to unseal,

no records had yet been produced, leaving this factor neutral. See Times Mot. at 14. Now,

however, the Government has unsealed a significant portion of the Application but left some

information redacted and inaccessible to the public. Because there is no indication that this

specific sealed material has ever been released, despite publicity around the general contours of

the investigation, this factor continues to be neutral. Vanda Pharms., Inc. v. FDA, No. 19-301,

2021 WL 1820264, at *7 (D.D.C. May 6, 2021) (second Hubbard factor neutral when no

previous access to sealed portions of documents).

Third, the Court addresses “the fact that someone has objected to disclosure, and the

identity of that person.” Nat’l Children’s Ctr., 98 F.3d at 1409. Here, the Justice Department

has objected to disclosure of the sealed material. See Gov. Mot. at 5–9. Although “litigants to

[a] proceeding have a lesser claim to privacy than third parties” when they object in that

proceeding, see Hyatt v. Lee, 251 F. Supp. 3d 181, 185 (D.D.C. 2017) (citation omitted), the

Department has a unique interest in protecting the integrity of its investigations, and it would be

difficult for another third party — such as the source, a witness, or a specific law-enforcement

officer — to object without revealing precisely the information the Government seeks to protect.

See CNN, 984 F.3d at 120 (noting that litigant FBI was natural objector to unsealing intelligence

9
sources because sources themselves could not complain). The nature of the objection thus

supports the Government.

The fourth and fifth prongs of the Hubbard test can be considered together and bear

heavily on this case. These two are “the strength of any property and privacy interests asserted”

and “the possibility of prejudice to those opposing disclosure.” Nat’l Children’s Ctr., 98 F.3d at

1409. The crux of the Government’s argument rests on these two factors, as it maintains that

individual privacy interests, law-enforcement interests, and the protection of classified and

grand-jury information are all at stake.

The Government initially emphasizes that the “privacy, reputational, and due process

interests” of “the witnesses and uncharged subjects of the investigation” weigh against

disclosure. See Gov. Mot. at 5. In particular, it has redacted “detailed information about

subjects of the investigation — including information that could identify them, the extent of their

cooperation with law enforcement, and their private activities,” some of which was drawn from

witness interviews and search warrants. Id. at 6. The Times has already agreed that the

information about reporters’ sources should not be unsealed. To the extent that the privacy of

other parties is also implicated, it is well recognized that “individuals have an obvious privacy

interest . . . in keeping secret the fact that they were subjects of a law enforcement investigation,”

and this “privacy interest also extends to third parties who may be mentioned in investigatory

files, as well as to witnesses and informants who provided information during the course of an

investigation.” Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 854 F.3d 675,

682 (D.C. Cir. 2017) (internal citations and quotation marks omitted) (discussing privacy interest

in FOIA context). And when, as here, that investigation has concluded without an indictment,

those privacy interests remain. See Matter of the Application of WP Co. LLC, 201 F. Supp. 3d

10
109, 122 (D.D.C. 2016) (“[C]ourts have been reluctant to recognize even a qualified public right

to access to [post-investigation warrant] materials where, as here, an investigation concludes

without indictment.”).

In addition to privacy interests, the redactions covering subjects of the investigation and

witnesses also serve “compelling law enforcement interests” even after the investigation’s

closure. See Gov. Mot. at 7. If the sealed information were released, the Government explains,

future investigators would risk losing the “ability to obtain truthful information from subjects or

witnesses” since those individuals might not trust that their statements would in fact be kept

private. Id. Courts in this district have repeatedly recognized the need to protect witness

anonymity. See, e.g., Matter of the Application of WP Co. LLC, 201 F. Supp. 3d at 127

(maintaining secrecy of search warrants given importance of “ensuring that investigators are able

[to] obtain information and assistance from individuals with direct knowledge of criminal

conduct”); In re Los Angeles Times Commc’ns LLC, No. 21-16, 2021 WL 2143551, at *4

(D.D.C. May 26, 2021), appeal filed, No. 21-5128 (D.C. Cir. June 9, 2021) (addressing

importance of witness anonymity in context of First Amendment right of access). Although the

investigation at issue has been discussed in the media, “[t]hese interests are no less great where

some of the relevant information has been reported on in the news media . . . particularly where

the specific information in the materials has not been disclosed.” In re Los Angeles Times

Commc’ns LLC, 2021 WL 2143551, at *4. The need to protect law-enforcement activities and

individual privacy both put a thumb on the scales for the Government.

Other redactions are intended to protect classified material. The Department objects to

unsealing information that might reveal or confirm “the precise nature of the classified

information that was disclosed in the Times’s Article,” although the Application itself contains

11
no classified material. See Gov. Mot. at 7. The Application addresses how classified

information was discussed with reporters and the classification level of the information. See

Redacted App. at 5, 9–14; see also Gov. Mot. at 7. There is no question that “[t]he Government

has a compelling interest in protecting both the secrecy of information important to our national

security and the appearance of confidentiality so essential to the effective operation of our

foreign intelligence service.” Snepp v. United States, 444 U.S. 507, 510 n.3 (1980). The Times

counters that the former Director of National Intelligence already “declassified information about

the same investigation in October 2020,” leaving little need to protect material from an

Application filed that December. See Times Reply at 7 n.8. The release that the Times points to

does not address the material redacted in the Application, which suggests that a need for secrecy

existed in December 2020 and continues now. See ECF No. 16-2 (DOJ-REQ-0000135). This

counsels against lifting the redactions. See Dhiab v. Trump, 852 F.3d 1087, 1098 (D.C. Cir.

2017) (“The law of this circuit is that the need to ‘guard against risks to national security

interests’ overcomes a common-law claim for access.”) (quoting Hubbard, 650 F.2d at 315–16).

Finally, the Government asserts that other information must stay sealed “to protect

against disclosure of grand jury information subject to Federal Rule of Criminal Procedure 6(e).”

See Gov. Mot. at 8. Rule 6(e) affords very limited exceptions for the release of grand-jury

information, none of which is satisfied here. See Fed. R. Crim P. 6(e)(3); see also In re Leopold,

964 F.3d at 1133 (“That Rule expressly makes secrecy the default and thus displaces the

common-law right of access.”). Given the strong default of secrecy for grand-jury information,

the Court finds that it is appropriate to keep in place redactions relating to such material. These

key fourth and fifth factors thus strongly oppose unsealing.

12
 The sixth and final factor is “the purposes for which the documents were introduced

during the judicial proceedings.” Nat’l Children’s Ctr., 98 F.3d at 1409. Under this prong,

“[t]he public’s entitlement to judicial records is commensurate with the documents’ importance

to the judicial proceeding in question.” Matter of Leopold to Unseal Certain Elec. Surveillance

Applications & Ords., 300 F. Supp. 3d 61, 96 (D.D.C. 2018), rev’d on other grounds, 964 F.3d

1121 (D.C. Cir. 2020). The Government submitted the Application to convince the Court to

authorize the collection of non-content information about emails sent by and to New York Times

journalists. There is no question that Magistrate Judge Faruqui relied on these documents “in his

decision.” Cf. Hubbard, 650 F.2d at 321 (noting fact that documents were not “expressly relied

upon by the trial judge in his decision” as reason for withholding). Although it is not clear from

the January 5 Order which material most influenced his decision to issue the Order and whether

that material has now been unsealed, it seems likely that at least some of the redacted

information might be among that material. As a result, this factor counsels toward release of the

information.

In balancing all the factors, therefore, the Government’s showing is sufficient to

overcome the presumption in favor of disclosure, particularly given that it prevails as to the

fourth and fifth factors. In these circumstances, unsealing the bulk of the redactions is not

proper.

On one point, however, the Times prevails. It opposes the redaction in the Application

and other motions of “the name(s) of the Assistant United States Attorney(s) who were on the

papers.” Times Reply at 7. The Government recently concluded that “the names of the

government attorney(s) need not remain redacted” on docket entries 2–17 in In re Application of

USA for 2703(d) Order for Six Email Accounts Serviced by Google LLC for Investigation of

13
Violation of 18 U.S.C. §§ 641 and 793. See Gov. Resp. at 1. Presumably this conclusion

extends also to the Application itself. In the unlikely event that it does not, the Court still

determines that lifting the redaction is proper.

Although little attention has been devoted to the privacy interests and risk of prejudice

associated with releasing an attorney’s name and office contact information, the limited

precedents that exist in similar circumstances suggest that this information should be unsealed.

When considering the privacy interests at stake in disclosing lawyers’ names in the context of

FOIA Exemption 7(C), which protects personal information in law-enforcement materials, courts

have found that the “disclosure of the lawyers’ names would not result in an unwarranted

invasion of personal privacy” when those lawyers “were not accused of any misconduct[,] they

were not witnesses to alleged wrongdoing,” and the defense had not indicated they would be

personally endangered. King & Spalding, LLP v. Dep’t of Health & Hum. Servs., 395 F. Supp.

3d 116, 122 (D.D.C. 2019) (internal citations and quotation marks omitted); but see Pub. Citizen,

Inc. v. Dep’t of Educ., 388 F. Supp. 3d 29, 43 (D.D.C. 2019) (allowing withholding of attorney’s

name in FOIA case when particular lawyer so well known to practice certain kind of law that

revealing name would show type of legal services sought). Here, as the Times notes, “The

Government has made no effort to justify redacting these names,” Times Reply at 7, and, indeed,

the Government has asserted nothing about how releasing the names could endanger law-

enforcement activity or officials’ personal safety. Unsealing the names is also consistent with

the need for accountability and openness that animates the common-law right of access, and the

Court thus orders that these redactions be lifted in all records.

14
 3. Hubbard Factors: Other Docket Entries

Next, the Court turns to how the Hubbard factors apply to the redactions that remain on

Attachment A to the January 5 Order and the Motion to Withdraw Application from June 2021.

As previously noted, the first set of redactions obscures the full email addresses of the relevant

Times journalists. The parties never discuss those redactions in their briefing, which is

understandable inasmuch as the Times already has these addresses and would likely seek to

protect its journalists from the harassment that might result from releasing the addresses. If the

Times wishes to have these redactions lifted, it may so inform the Court.

The second redaction in the Motion to Withdraw Application covers information relating

to the underlying investigation in this matter. Although, as noted earlier, that investigation has

ceased, the Court finds that it is still appropriate to keep this phrase-long redaction in place for

the reasons described for other investigative materials in Section III.A.2 above.

B. First Amendment Right of Access

Moving on to the First Amendment right of access, courts have traditionally used the

“experience and logic” test to determine whether such a right applies. See Press-Enterprise Co.

v. Superior Ct. of California for Riverside Cty., 478 U.S. 1, 9 (1986). Under the “experience”

prong, a court considers “whether the place and process have historically been open to the press

and general public.” Id. at 8. Meanwhile, under the “logic” prong, a court asks “whether public

access plays a significant positive role in the functioning of the particular process in question.”

Id. “If the particular proceeding in question” satisfies that test, “a qualified First Amendment

right of public access attaches,” and “the trial court must determine [at least in a criminal case]

15
whether the situation is such that the rights of the accused override the qualified First

Amendment right of access.” Id. at 9.

The D.C. Circuit has not resolved the question of whether the First Amendment right of

access applies to a § 2703(d) application. See In re Leopold, 964 F.3d at 1127 (court “avoid[ed]

unnecessarily passing on a constitutional question of first impression in this circuit” when it

could decide case under common-law right of access). The Times recognizes that it is unlikely

that such an application would satisfy the experience prong given the recent vintage of the Stored

Communications Act, which was enacted in 1986. See Times Mot. at 18; see also In re

Leopold, 300 F. Supp. 3d at 91 (finding “no historical tradition of openness

exists as to . . . § 2703(d) materials”). It argues that the Court should nonetheless find that a First

Amendment right of access applies under the logic prong, citing an instance in which the right

attached to post-investigation warrant materials. See Times Mot. at 18–19; see also In re New

York Times Co., 585 F. Supp. 2d 83, 89–90 (D.D.C 2008) (finding First Amendment right of

access for warrant materials in investigation after Government identified sole suspect).

The Court need not reach this question, however, because even if it were to determine

that the First Amendment right of access attaches, that would not afford the Times the relief it

seeks. See Press-Enterprise, 478 U.S. at 14. To overcome that right of access, the Government

must show “that the denial [of public access] is necessitated by a compelling governmental

interest, and is narrowly tailored to serve that interest.” Globe Newspaper Co. v. Superior Ct. for

Norfolk Cty., 457 U.S. 596, 606–07 (1982). Although the Government offers little on this point

beyond the reasons it put forth against unsealing under the common law, the Court finds that

both a compelling government interest and narrow tailoring are present here given the risks that

16
exposure of the sealed materials could pose and the limited nature of the remaining redactions.

See Gov. Mot. at 9.

When previously considering the potential risks that could arise from disclosure of the

redacted material, the Court identified reasons to fear “a substantial probability” of prejudice to

compelling government interests, including law-enforcement activities, the privacy of third

parties, grand-jury activities, and classified information. See Press-Enterprise, 478 U.S. at 13–

14; see also Section III.A.2 supra. The fact that the leak investigation has garnered public

attention does not diminish this probability of prejudice. Contrary to an assertion made by the

Times, when applying the First Amendment right of access, the D.C. Circuit has not “expressly

recognized . . . that the release of information already publicized by the news media cannot

threaten an ongoing investigation enough to justify continued sealing of records.” Times Mot. at

20 (citing to Washington Post v. Robinson, 935 F.2d 282, 291–92 (D.C. Cir. 1991)). In that

case, the Circuit explained that in a particular instance the information in a plea agreement could

be unsealed because the basis for it “was already within the public knowledge.” Washington

Post, 935 F.2d at 291. “[I]n a different case” there might be good reason not to unseal if doing

so would “threaten an ongoing criminal investigation” or an individual’s personal safety. Id.

Here, even though the investigation has closed, risks remain surrounding the disclosure of

classified information and protecting subjects and sources. Good reason thus persists to keep the

redactions in place as they are needed to effectively ward off the threatened harms from

disclosure.

Finally, the Government’s release of much of the § 2703(d) Application and associated

docket entries evinces a narrowly tailored approach and suggests that no alternative limitation

remains to protect the interests involved. See Press-Enterprise, 478 U.S. at 13–14. Indeed, prior

17
to the partial unsealing, the Times had suggested that to keep the materials sealed, the

Government would need to “demonstrate that alternative measures, such as redaction, cannot

adequately redress that risk.” See Times Mot. at 21. The Government has adopted precisely this

more limited option and since much of the Application has now been released, no “reasonable

alternative[]” to nondisclosure remains that would protect the remaining privacy and security

interests. See Press-Enterprise, 478 U.S. at 14. Similarly, with respect to docket entries 2–17,

the Government has maintained only two minor redactions aimed at protecting the privacy of the

Times’s journalists themselves and investigative secrecy. Even if the First Amendment right of

access were to attach, therefore, the Court finds that the remaining redactions would be

warranted.

III. Conclusion

For these reasons, the Court will grant in part and deny in part the Times’s Motion for

Access to Judicial Records. It will also order that the Docket be unsealed in In re Application of

USA for 2703(d) Order for Six Email Accounts Serviced by Google LLC for Investigation of

Violation of 18 U.S.C. §§ 641 and 793, and that docket entries 2–17 be partially unsealed

consistent with the redactions proposed by the Government. The unredacted versions of those

documents will be filed under seal and a redacted version filed on the public docket. A separate

Order so stating will issue this day.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: December 6, 2021

18