concurring in part, dissenting in part:
Petitioner in this case seeks access to the plea bargain entered into by one of the government’s witnesses against him. He has put forth two theories. First, he argues that he has a common law right of access to the file. Second, he argues that he is entitled to see any exculpatory materi*711al in the file under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). While I agree with the majority that the file contains no Brady material, I believe that the common law right of access requires that petitioner be granted access to it.
The majority finds that petitioner has no common law right of access to the file because the government’s interest in the safety of the witness outweighs whatever interest the petitioner may have in the contents of the file. As the court notes, the decision is best left to the discretion of the trial court. However, the trial court’s discretion is not absolute. In re National Broadcasting Co., Inc., 653 F.2d 609, 613 (D.C.Cir.1981). The courts have made it clear that there is a presumption in favor of a public right of access, Nixon v. Warner Communications, 435 U.S. 589, 602, 98 S.Ct. 1306, 1314, 55 L.Ed.2d 570 (1978), and that restricting this right of access “is rarely the proper protection.” In re National Broadcasting, 653 F.2d at 615.
While protection of third persons such as the witness involved in this case is unquestionably a compelling reason for closing files, neither the government, the district court nor the majority of this panel has explained how disclosure of the file will jeopardize the safety of the witness. All have simply asserted that, because they view the defendant in this case to be exceptionally clever, he may, in some manner which we cannot fathom, glean the location of the witness from the contents of the file. This is exactly the argument that the defendant makes which is rejected by the majority in the Brady analysis, i.e., that he, because of his specialized knowledge of the case, may glean from the contents of the file exculpating information that we cannot fathom.
I have reviewed the file for both purposes, as has the majority. I can find no information which I conceive as exculpating and therefore deny the defendant’s request under the Brady analysis. By the same token, I can find nothing that would jeopardize the safety of the witness. Balanced against this is the presumption in favor of a public right of access. If defendant’s speculations cannot overcome the Brady threshold, then I am unwilling to allow the state’s speculations to overcome the presumption in favor of a public right of access, and it is disingenuous for the majority to do so. If the court's finding that there is nothing in the file that will aid the petitioner in his criminal appeals can undermine his legitimate desire to make that determination for himself, then surely the court’s finding that there is nothing in the file that will jeopardize the safety of the witness undermines the state’s fanciful musings about the defendant’s clairvoyance. Since the state has made no reasonable argument that the witness’ safety will be jeopardized by release of these materials, the presumption in favor of the public right of access is not, in my opinion, overcome. Accordingly, I must dissent.