N.D.Ill.: Chicago Sun-Times gets access to SW affidavit briefly accidently unsealed on PACER under common law right of access to judicial records

The Chicago Sun-Times got access on PACER to a search warrant affidavit that was filed and briefly not sealed. They opened and copied it before it was sealed. Now they seek access to the file. The court finds that the government’s interest in sealing the affidavit, which is not infinite anyway, is outweighed by the common law right of access to materials that would ultimately have to be unsealed anyway. United States v. Suppressed, 2019 U.S. Dist. LEXIS 36565 (N.D. Ill. Mar. 7, 2019):

With that unfortunate reality at hand, the court must conclude that under the particular facts and circumstances of this case the public interest underlying the Tribune’s common law right of access to the search warrant affidavit outweighs any remaining interest in the secrecy of the affidavit. See Sealed Search Warrants, 868 F.3d at 396. Two cases in particular inform that conclusion. In In the Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1312-13 (7th Cir. 1984), a report that was produced in discovery only under seal was later admitted into evidence and discussed at a public proceeding. Although the entire report was not publicly disclosed, the court concluded that “enough of it was disclosed” to dissolve any justification to restrict further public access. Id. at 1313. In balancing the presumption of access against the interest in confidentiality, the court determined that privacy interests underlying a privileged report are reduced after a partial loss of confidentiality, and that after such a loss the district court did not abuse its discretion in ordering the report’s disclosure. Id. at 1314-16. Similarly, in Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 (2d Cir. 2004), the court found that the district court had abused its discretion in referring to the magnitude of a confidential settlement agreement in a public order but reasoned that “however confidential it may have been beforehand, subsequent to publication it was confidential no longer.” The court noted that once information that was secret is prominently disseminated, the court does not have the power “to make what has thus become public private again,” because once information is public, “it necessarily remains public.” Id. at 144 & 145 n.11.

The government attempts to distinguish those cases by pointing out that “the sealed document at issue in this case was never admitted in evidence or discussed in open court.” (R. 34, Gov’t Resp. at 10.) That is of course true, as is the distinguishing characteristic that here the court’s exposure of confidential information was unintentional as opposed to intentional. But the end result—public disclosure—is the same, and that loss of confidentiality reduces the interest in maintaining secrecy, tipping the balance in favor of the Tribune’s interest in accessing the document. That is especially so because here the court’s sealing order is subject to a rule limiting the seal to 180 days and requiring the government to file a motion before any expiration date justifying the seal’s extension. See N.D. Ill. L.Cr.R. 41. In other words, the applicable seal in this case was never a permanent one, and the default is for the seal to expire absent an on-going justification for secrecy. See id. Given the extent of the public disclosure in this case, the court is unable to find that a sufficient justification exists here to overcome the Tribune’s interest in accessing the document.

The court fully understands and shares the government’s concern that unsealing the affidavit here provides an undesirable incentive for the press to seek out and exploit errors in the sealing process. But the common law right of access requires this court to weigh the facts and circumstances of this particular case to determine whether the public’s right to know outweighs any remaining privacy interests in light of the Sun-Times’s reporting. See In re the Matter of the Search of Fair Finance, 692 F.3d at 433. The court has not been advised of any facts or assertions demonstrating that certain information in the currently sealed affidavit has not yet been publicly disclosed and should remain sealed. Nor has it been advised of any specific harm that would stem from granting the Tribune’s motion.

In that vein, the court has also considered whether it would be appropriate to unseal only a redacted version of the search warrant affidavit, shielding from public view any information that has not yet been published by the Sun-Times. See, e.g., United States v. Cohen, ___ F. Supp. 3d ___, 2019 WL 472577, at *5 (S.D.N.Y. Feb. 7, 2019) (allowing disclosure of search warrant affidavit with redactions to protect on-going investigation and subjects under scrutiny). But the government has neither requested that relief nor highlighted any information that has not yet been published and requires continued secrecy. More importantly, because the Sun-Times is in possession of the full affidavit, it could disseminate any as-yet unpublished information at any time. It would not make sense for the court to go through a redacting exercise that would need to be repeated anytime the Sun-Times makes additional information public. As such, the court finds that there are insufficient facts or circumstances to justify continuing the affidavit’s seal now that its contents have been widely disseminated.