Considering the public’s right of access to judicial materials, concisely explained by the court, a redacted version of the search warrant for Anthony Weiner’s and Huma Abedin’s laptop computer is filed on the S.D.N.Y.’s website (affidavit and warrant here). In Re: Search Warrant 2016 U.S. Dist. LEXIS 178313 (S.D.N.Y. Dec. 19, 2016):
II. Discussion.
The redactions proffered by the government fall into two categories: information related to the ongoing criminal investigation into Subject 1 and information identifying law enforcement personnel involved in the closed investigation into Secretary Clinton. The Court accepts the government’s reactions in whole and will additionally redact any information identifying Subject 2. The Court will address the public’s right to access judicial documents as it applies to information concerning Subject 2 and the involved law enforcement personnel.
A. The Public’s Right to Access Judicial Documents.
The public has a common law presumptive right to access judicial documents. Bernstein v. Bernstein Litowitz Berger & Grossmann LLP, 814 F.3d 132, 139 (2d Cir. 2016). In addition, the First Amendment protects the public’s right to access judicial documents and proceedings. See Hartford Courant Co. v. Pelligrino, 380 F.3d 83, 91-92 (2d Cir. 2004).
The Second Circuit’s approach to determining whether a document is a judicial document for the purposes of the First Amendment and common law rights of access emphasizes the role of the document in the judicial process. See United States v. Erie Cty., 763 F.3d 235, 239-40 (2d Cir. 2014). To be considered a judicial document, “the item filed must be relevant to the performance of the judicial function and useful in the judicial process.” Lugosch v. Pyramid Co. of Onondaga, 435 F.3d 110, 119 (2d Cir. 2006) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)).
Search warrant applications require the close and careful scrutiny of a judicial officer, and are thus judicial documents See In re Sealed Search Warrants Issued June 4 & 5, 2008, No. 08-M-208 (DRH), 2008 WL 5667021, at *2 (N.D.N.Y. July 14, 2008) (finding search warrants, returns, applications, and supporting affidavits to be judicial documents). Search or seizure warrant applications and supporting affidavits are critical to judicial determinations of whether the Fourth Amendment’s probable cause standards are met. Thus, they are not only “relevant to the performance of the judicial function” of issuing warrants, but necessary. United States v. All Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d 577, 583-84 (S.D.N.Y. 2009) (finding seizure warrants to be judicial documents). The Court thus concludes that the search warrant and related documents applicant seeks to unseal are judicial documents for the purpose of analyzing the applicability of the common law presumption of access and the First Amendment right of access.
B. First Amendment Right of Access.
The Second Circuit has articulated two approaches for determining whether the First Amendment right of access applies to particular judicial records. Lugosch, 435 F.3d at 120. First, under the “experience and logic” approach, the First Amendment protects access where (1) the documents “have historically been open to the press and general public,” and (2) where “public access plays a significant positive role in the functioning of the particular process in question.” Id. (internal quotation marks omitted). “The second approach considers the extent to which the judicial documents are derived from or are a necessary corollary of the capacity to attend the relevant proceedings.” Id. (alterations and internal quotation marks omitted). If a First Amendment right of access is found, documents “may [only] be sealed if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.” Id. (quoting In re New York Times Co., 828 F.2d 110, 116 (2d Cir. 1987)). However, “[b]road and general findings by the trial court … are not sufficient to justify closure.” Id. (internal quotation marks omitted).
In the present case the first approach most aptly applies because the public and the press do not have a “capacity to attend” search warrant application proceedings. Hartford Courant Co., 380 F.3d at 93; see Applicant’s Mem. 7. The Court concludes that under the experience and logic approach, applicant does not have a protected First Amendment right to access the subject warrant application materials. As Judge Swain explained, the experience prong does not support a First Amendment right of access to warrant application materials because warrant application proceedings have historically been “highly secret in nature” and closed to the press and the public. All Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d at 583. In addition, the applicant has failed to provide any evidence that, as a general matter, warrant materials from closed investigations which do not result in criminal charges have historically been made available to the public or the press. Accordingly, the Court finds that no First Amendment right of access exists for the search warrant and related documents applicant seeks at this time.
C. Common Law Right of Access.
The Court now turns to whether applicant has a common law right to access the documents he wishes to unseal. Once a court determines that the item in question is a judicial document, and thus subject to the common law presumption of access, the court must “determine the weight” of that presumption. Erie Cty., 763 F.3d at 239 (quoting Lugosch, 435 F.3d at 119). “The weight to be given to the presumption of access is governed by the role of the material at issue in the exercise of Article III judicial power and the resultant value of such information to those monitoring the federal courts.” Erie Cty., 763 F.3d at 239 (quoting Amodeo, 71 F.3d at 1049) (internal quotation marks omitted). The court must then balance competing considerations against disclosure, and may only deny public access to the document when the competing interests outweigh the presumption of access. Id.
The Second Circuit has found that where the documents “directly affect an adjudication, or are used to determine the litigants’ substantive legal rights” the presumption of access is very high and may only be overcome by “extraordinary circumstances.” Bernstein, 814 F.3d at 142 (internal quotation marks and citations omitted). Search warrants and associated documents go to the heart of the judicial function. The judicial determination whether to grant a search warrant, and thus allow the government to enter and search private property, directly affects individuals’ substantive rights. See In re Sealed Search Warrants Issued June 4 & 5, 2008, 2008 WL 5667021, at *3 (finding that the presumption of access to search warrants and related documents carries the maximum possible weight). Documents that a court relies on in making this determination, such as affidavits, directly affect the court’s adjudication of those rights. See All Funds on Deposit at Wells Fargo Bank, 643 F. Supp. 2d at 584. The common law presumption of access to the search warrant and related materials sought by applicant is thus entitled to great weight.
The Court must next balance the competing interests against disclosure. …
In this case, Director Comey has made a public statement that Secretary Clinton was the subject of a now closed government investigation. (Ltr, Dir. Comey to Sen. Burr, et al., Nov. 6, 2016). Secretary Clinton or her recent presidential campaign have responded to comments made about her by Director Comey. She has little remaining privacy interest in the release of documents identifying her as the subject of this investigation. … The Court concludes that Subject 2’s strong privacy interest in keeping his or her identity secret outweighs the public’s common law presumptive right of access in this case.
The Court now turns to balancing the common law presumption of access against the government’s interest in keeping the identity of the government agents involved in the investigation into Secretary Clinton’s emails sealed. The government’s proposed redactions would include shielding the name of the special agent whose statements provided the basis for Magistrate Judge Fox’s finding of probable cause and that agent’s supervisor. In addition, the government opposes disclosure of the introductory paragraph of the affidavit that describes the agent’s experience, as well as the names of three law enforcement personnel on the warrant return. While it is a somewhat close question, this investigation was conducted by special agents who work in the fields of national security and counterintelligence. Information regarding their identities could compromise other investigations. The government has a strong interest in not compromising the activities of agents working in these sensitive areas. At this stage the Court will accept the government’s proffered redactions.
