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Friday, June 22, 2007
Associated Press Says Public Has Right to Blacked Out Names in Search Warrant

This post essentially continues the debate within the comments to Michael's excellent post yesterday regarding the disclosure of the Diamondbacks scouting report. I had to beat Howard to it.

This week, the Associated Press asked a federal judge to make public the names of baseball players a government agent said were implicated in drug use by former major league pitcher Jason Grimsley. When the affidavit signed by the government agent to obtain a search warrant on Grimsley's home was made public in June 2006, the names of the players the agent said Grimsley accused of using performance-enhancing drugs were blacked out. The AP now says it has a right to the blacked out names.

According to the AP, "Any privacy interests of individuals named in the affidavit are insufficient to overcome the public's right to access." The AP also said that if prosecutors provided the complete affidavit to baseball steroids investigator George Mitchell, "then they should not be allowed to invoke the privacy interests of third parties as a shield to prevent disclosure to others."

So let's continue the debate. Does the public have a "right" to the names of players who were blacked out by federal prosecutors? After all, the very reason the prosecutors blacked out the names to begin with was to maintain the players' confidentiality and privacy interests. Thus, the privacy interests of the players whose names were blacked out should definitely be taken into consideration. However, as Jimmy H. mentioned in the comments section to Michael's post, the public interest in steroids usage is definitely much greater than a scouting report found on a dugout floor. So the blacked out names of the players would most likely be considered "newsworthy". But there is an "entertainment" aspect working here as well. Let's face it, this would be a great sell for the AP if they could just get their hands on these names. The public loves to read about steroids in baseball. You can bet the AP wouldn't be in court this week if these players played professional football.

What I find most interesting though, is that the AP assumes it has a legal right of access to the names if prosecutors gave George Mitchell access. What law says that? So now the press can go to court and demand legal access to any information it wants whenever that information has previously been disclosed in confidence to a third party? That's a scary thought.....


Scary indeed...

It would be interesting to know what they are relying on, since they obviously think they are somehow entitled to the information.

Moreover, as I mentioned earlier in the previous discussion, there is an important element of public interest here, BUT, you would still have to go through the same weighing of interests discussed in the D-Back paper thread.

can the public have such a strong interest (or right of information) in the names of the other players possibly involved in this steriod scandal, that it would entitle a news wire to make those names public? I dont think so. First of all, as I understand it, all they have so far are allegations, not proven facts. Second, criminal defendants are still suppoed to be presumed innocent until proven guilty. In the media-heavy world of pro sports, to hand out the names of these players would tarnish their reputations and possibly cost them a fortune in endorsements and future contracts, not to mention the emotional turmoil for the player and his family.
Secondly, publicly announcing the names of plaeyers suspected of involvment with steroids would probably cause great harm to any criminal investigation into the use and distribution of illegal steroids.

I fail to see how the AP could possibly be entitled to this information, and furthermore feeds right into my point about the questinalbe ethics and moral commitments of certain members of the press.

On a side note, I have to disagree with Prof Karcher on his statement that this same scenario would not play out if the players were pro football players. With the Bengals constantly in the news because of several players off-field criminal acts, the vikings..err..booty cruise (for a lack of a better word), past steroid scandals involving Romo and other high strung players. and lets not forget the new commish and his promise to put up a better face for profootball, suspending players because of behavior reflecting negatively on the NFL...
I think the press would jump at an opportunity to start a similar steroid circus that has followed MLB for the past years... but..I could be wrong.

Blogger Jimmy H -- 6/22/2007 9:51 PM  

Under the First Amendment, the right to free speech is held to genreally include the right to access to court proceedings, and that includes information filed in court, like this affidvant.

Anonymous Anonymous -- 6/22/2007 10:29 PM  

The word "generally" should be given some weight here...

The courts seem troubled with this privacy v access debate.

Consider this statement by the Florida Supreme Court:

We agree that, in the management of court records, information protected by
statute or court rules must remain secure from improper disclosure. Furthermore,
in addressing this issue, we must ensure that public trust and confidence in the
courts is not undermined, citizens' privacy rights are respected, and access and
privacy policies are consistently applied in all parts of the state

Granted, this was said in connection to the debate on internet access to court records, but still goes to show that access to court records is not guaranteed, nor is it immune privacy considerations.

Blogger Jimmy H -- 6/22/2007 11:35 PM  

The "right" is granted by the Freedom of Information Act, 5 U.S.C § 552. I assume FOIA is the basis for the AP petition, although the story does not say--I am not aware of any other constitutional or statutory basis for this claim.

FOIA says the public (here, the media seeking the information, likely for disclosure to the public at some future point) does have a right to information gathered and held by federal agencies, unless the documents or information at issue fall within one of several enumerated statutory exemptions. Importantly, FOIA makes the default rule that information about government activities must be disclosed upon request and imposes on the government the burden of showing that some exception to that default rule applies. § 552(a)(4)(B). Interestingly, FOIA also entitles AP to reasonable attorneys fees if it "substantially prevails" in its claims for this information. § 552(a)(4)(E). Those are all pretty clear ways of establishing a right to obtain this information.

The most likely exemption here is § 552(b)(7)(C), which removes from disclosure information gathered for law-enforcement purposes where disclosure "could reasonably be expected to constitute an unwarranted invasion of personal privacy." Now the court must balance those privacy interests (and the concerns that Jimmy H mentions) against the public interest in information about the investigation of potential criminal wrongdoing involving a vital cultural institution. And this is where the AP's argument that the Mitchell Commission received unredacted documents comes into play: The fact that the names already have been revealed to one source undercuts the argument that the sought disclosure would constitute an unwarranted invasion of personal privacy. When information can go out to one source or via one route, it undermines the argument that it should not go out to another source or via another route. So this becomes one additional fact, not a conclusive one, thrown into the judicial balancing. And again, that balancing should be weighted in favor of disclosure.

The government could argue that § 552(b)(7)(A), exempting disclosure if it could "reasonably be expected to interfere with enforcement proceedings," also is in play. I do not know enough about the status of the Grimsley investigation and whether the IRS also is targeting the named players.

Everyone seems to agree that the identity of potential steroid users in baseball is newsworthy--it involves unlawful activity, and the government investigation of unlawful activity, affecting an important social and cultural institution. The fact that "the public loves to read about steroids in baseball" does not diminish that newsworthiness or the imperative of the media reporting on it. Maybe the public loves to read about steroids precisely because it is newsworthy. Maybe it is for some other reason. But this is where Rick and I part paths: to my mind, it does not matter why the public is interested in some information. Nor can I fault the press for gathering and reporting on things that its audience is going to want to read about. We are just going to have to agree to disagree about "entertainment" having any meaning as a legal or ethical line.

Along the same lines, I do not understand Jimmy H's condemnation of the ethics and moral commitments of the press. Again, if the contamination of baseball's integrity by illegal drug use among players is newsworthy, I do not see what is unethical or immoral about a media outlet pursuing the full truth of that story, including the identities of those who might have broken the law and/or the rules of baseball or been involved in the breaking of those rules. I certainly see nothing immoral or unethical about making the argument in court that you should be given this information in light of a law that specifically grants access to this information.

Blogger Howard Wasserman -- 6/22/2007 11:45 PM  

I'm sure the Duke lacrosse players would've liked something similar to an indictment with their names blacked out--especially those who were never charged, much less the three who were. THEY had to deal with the press'
"ethics and moral commitments" for a year.

Anonymous Anonymous -- 6/23/2007 2:06 AM  


Your argument assumes that the AP is trying to get the Court to compel the DOJ to turn over the unredacted affidavit. In that case, FOIA would apply.

But I'm not sure that's what's going on. The application was filed with the court as part of the affidavit application. Therefore, it's likely a court record. There's a well established First Amendment and common law right of access to documents filed in support of court proceedings. Civil litigators in commercial disputes grapple with these issues when trying to obtain protective orders under FRCP 26 covering not only documents produced in litigation, but also documents attached to court filings. The standard for justifying a protective order in the latter situation is much higher.

My guess is the affidavit was filed under seal. The fact that the government then gave an unredacted copy of that filed document to George Mitchell is, in my view compelling evidence that the document ought not to be subject to a protective order. If I have the facts right, then Prof. Karcher's fear is misplaced, because the right is limited to documents submitted to a court, not any communication with third parties.

Anonymous Anon -- 6/23/2007 11:18 AM  


Thank you for clearing up the FOIA, I knew very little about the how the act works.

Perhaps I was wronged by a reporter in a past life, that would explain my inherent disstrust in the news media. But seriously, I understand the role of the media in an informed society, and the majority of what they do, for information purposes or entertainment, benefits the public. I am simply fed up with how some reporters run with stories without concern for who ends up getting hurt, all under some type of justification that "the public has a right to know". for example, reporters have been quick to get the names of killed soldiers out there, sometimes before the families have even had a chance to be informed. And anonymous brought up an interesting point regarding the Duke players, the media had them all but convicted within the first week or so of the incident... of course much of that can be attributed to the conduct of Nifong.
But, I have already made this point in previous comments, so I'll refrain from taking up more space on why I believe some reporters lack ethics and morals.

It will be interesting to find out if they are using FOIA like you explained, or the the common law argument expressed by Anon.

Blogger Jimmy H -- 6/23/2007 12:43 PM  

Based on what I have subsequently read, I believe Anon is correct. I misread the original stories as indicating that the AP was seeking the affidavit from the IRS or DOJ, when it appears it is seeking it from the federal district court that issued the warrant based on that affidavit.

Even though the controlling law is different, we basically are dealing with the same thing: a balancing of the First Amendment and common law rights to open court records against the privacy concerns that justify the court permitting the redaction (essentially, a partial sealing of the affidavit). The balance is not as heavily weighted towards disclosure as under FOIA, but the court still must consider whether redaction was justified, weighed against the public interest in information about wrongdoing in an important cultural institution. And again, I think the fact that an unredacted version was disclosed seriously undercuts the privacy argument.

Blogger Howard Wasserman -- 6/23/2007 4:03 PM  

Anon and Howard:

Well, it's not clear from the press release whether prosecutors even gave the names to Mitchell. The AP says, IF the prosecutors give the names to Mitchell, then the AP is entitled to them. So I'm not even sure Mitchell has access to them.

But let's assume for sake of argument that the prosecutors did give them to Mitchell. This disclosure would not undercut the privacy argument regarding disclosure to the AP! It's apples and oranges. Mitchell has been performing a comprehensive investigation into steroid usage on behalf of MLB, the employer of these individuals. He is ONE person that would have access to the names, and he is privy to all sorts of private and confidential information as part of this investigation that the public is not. As far as the individual privacy interests impacted here, the impact of giving these names to Mitchell as part of MLB's investigation does not even come close to the impact of giving the names to the AP so that they can merely tell the entire world in a press release that these named players COULD POSSIBLY be involved in steroid usage. There is not even a debate on that one. Any court is going to see that distinction.

Blogger Rick Karcher -- 6/23/2007 5:53 PM  

George Mitchell and, for that matter, MLB, stand in the same position vis a vis the United States' investigation as does the AP--outsiders looking in. Neither Mitchell nor MLB is a party to the investigation. Mitchell is not working with or assisting the government on its investigation and the government is not assisting Mitchell in his investigation.

The government is not investigating on behalf of MLB, but in its own interest in uncovering and punishing illegal activities. Thus the fact that MLB employs the named individuals does not give it (or Mitchell, working on its behalf) a greater interest in the information uncovered. Imagine the government investigates securities fraud at Big Corp and executes a search warrant on the property of Employee A, based on an affidavit that named Employees X, Y, and Z as potentially involved in wrongdoing, although their names were redacted in the filed affidavit. Big Corp.'s internal investigator would not have a greater claimt to learn the identities of X, Y, and Z *from the court* than any other member of the press or public.

And Mitchell is not just one person receiving this information for his own use. It is possible (if not likely) that, at some point, he will disclose the identities of the named players in a published report on his investigation. Mitchell and the AP are engaged in essentially the same enterprise--investigating and seeking to uncover the truth about the use of steroids in Major League Baseball. Mitchell is doing so on behalf of MLB, while AP is doing so on behalf of its mission as a news organization. But the goal is the same. And so is the use that either is likely to make of the names sought.

Which is not to say that either Mitchell, MLB, or the AP is entitled to the unredacted affidavit. Only that MLB and Mitchell are not so different from the AP that the disclosure to the former has no effect on the privacy balance for disclosure to the latter.

Blogger Howard Wasserman -- 6/23/2007 11:02 PM  


Surely you can't be arguing that the AP and Mitchell are in the same situation in evaluating the privacy interests of the players. If you want to say that the public's right to simply know the names of players that one player mentioned to a govt. agent outweighs the privacy interests of these players, which I completely disagree with, then just say that. But do you really not acknowledge that the privacy impact is much greater with disclosure to the AP than it is to Mitchell?

Blogger Rick Karcher -- 6/24/2007 9:28 AM  


The Mitchell investigation is not a joint enterprise between players and owners -- "MLB" on a grand scale -- trying to root out steroid use. If that were so, you could make the case that the players' privacy has not already been substantially abridged if their names were shared with Mitchell.

Instead, this is a case of an employer trying to investigate illegal drug use among its employees. Giving the names to Mitchell is a possible first step toward suspension, the voiding of contracts, and public ridicule -- some of the the very things that privacy rights are designed to protect. Publication of the information in the press would be another step along this path. But if the information was given to Mitchell, a giant first step has already been taken.

That's why the players are fighting strenuously to keep the information away from him, as well as the public in general.

Jimmy Golen

Blogger Jimmy -- 6/24/2007 2:43 PM  

First, I'm still struggling with the legal source that gives the AP the right to these names, other than to simply say "if Mitchell has it then the world gets it." The argument seems to go such that, the players have waived their right to confidentiality for ALL purposes IF disclosed to Mithell (similar to the way the attorney-client privilege works). So I'm still not understanding what legal basis the AP is asserting, nor what would give the court any basis to issue an order to compel the disclosure of this information. If I were the judge, I'd tell the AP to go interview people and do your own investigation. In other words, I don't even understand what gives the AP any legal basis to even argue that it should prevail under a balancing test.

Jimmy G.,

Even applying a balancing test, I'm confused by your argument. You acknowledge that giving the names to Mitchell is the first step towards suspension, the voiding of contracts, and public ridicule -- all of which privacy rights are designed to protect. I agree with you in that respect. But the purpose of any investigation (whether performed by the govt. or Mitchell) is to determine whether Grimsley's allegation about these unnamed players has any validity. These investigations MAY lead to suspension and voiding of contracts, and then ultimately public ridicule if that happens. The investigations MAY also lead to no suspension and no voiding of contracts because the investigations reveal that the allegation has no validity. The problem is that public disclosure right now takes a huge step of public ridicule (which can't be undone) before the investigations are completed.

You, like Howard, obviously feel that the privacy rights are still trumped in the public disclosure of these blacked out names. But as I said to Howard, I don't know how you can possibly argue that disclosure to Mitchell has the SAME privacy impact as disclosure to the press.

Blogger Rick Karcher -- 6/25/2007 8:45 AM  

The source of right is the general First Amendment/common law principle that courts and court records should be open to the public. This runs against the court's inherent power to issue confidentiality orders with respect to filed papers, which may be issued "on good cause shown." Resolution of the claim of right requires a balancing of the basis for good cause (here, the privacy interests of the named players) against the public interest in disclosure.

I am in no way arguing (and I do not read Jimmy as arguing) that merely because the names were disclosed to Mitchell creates a right of disclosure in the AP. The argument is that, if the court is weighing the interest in disclosure against the interest in privacy and the documents already have been disclosed in some way, that diminishes (note: NOT eliminates, but diminishes) the weight of the privacy interest for purposes of that balancing. The point is that the fact of prior disclosure is a relevant consideration; no one is suggesting that it is controlling.

It then falls to the government to explain why the impact on privacy interests is different from disclosure to the AP as opposed to Mitchell. Rick believes they are different and the difference is obvious. I am not so sure. The problem is that we do not know what AP is going to do with the names and we do not know what Mitchell will do with the names. Jimmy argues that Mitchell will use them to threaten suspensions, void contracts, and ultimately "out" steroid users in baseball; Rick argues they may not lead Mitchell in that direction. True enough. Similarly, we do not know if the AP is going to simply print the names or if it will use the names as a piece of its broader investigation and maybe its investigation will lead AP to conclude that the players, although named, did nothing wrong.

In short, we do not know what ANYONE will do with the names if they are obtained. But that makes it impossible to say, right now, that disclosure to Mitchell is so fundamentally different from disclosure to AP that it has no impact on the court's weighing.

Note, by the way, that I am not arguing that the names will or should be released to the AP. I actually think the AP has a really tough argument to make because courts generally have been solicitous of their own power to enter confidentiality orders with respect to filed documents and their own evaluation of what "good cause" demands.

Blogger Howard Wasserman -- 6/25/2007 11:43 AM  

But I'm under the impression that there already has been some sort of order issued on grounds of confidentiality/privacy when the names were blacked out, and thus good cause has already been shown. If prosecutors give Mitchell the names (which it still isn't clear to me whether they have done that), the issue then is simply whether that one voluntary disclosure by prosecutors is a breach of the original confidentiality order. Maybe the players could argue it's a breach of the order. But the AP can't argue that. The question is what gives the AP the right to have the order lifted or reversed? The AP is now sort of arguing to the judge: well, there obviously wasn't "good cause shown" to issue the order if prosecutors are willing to give the names to Mitchell.

So is there some procedural rule that permits a non-party to the litigation to go into court and essentially demand that the court reverse or lift previously issued protective orders in which good cause has already been shown?

Blogger Rick Karcher -- 6/25/2007 12:39 PM  

Prof. Karcher:

You're confused about the likely course of events leading to Mitchell obtaining the unredacted Grimsley affidavit(assuming Mitchell obtained it at all).

First, the government filed the warrant application, to which the Grimsley affidavit was attached, under seal. The order allowing the warrant application and supporting documents to be filed under seal (most local rules require an order before allowing documents to be filed under seal) most likely did not prevent the DOJ from independently giving the information to third parties. Rather, it prevented third parties from accessing the court record to obtain the information without the consent of the DOJ.

Second, the DOJ (let's assume) gave Mitchell an unredacted affidavit. As noted above, that would not violate the order allowing the document to be filed under seal, but it might undermine the argument for allowing the documents to be filed under seal in the first place.

Third, the AP has now requested that the court unseal the affidavit. Third parties do have standing to make these requests, and often do so when documents of interest are filed under seal. The question now is whether the documents should remain under seal. That the court previously ordered them sealed should not control because that proceeding was ex parte and therefore the AP had no ability to present the arguments it is now presenting.

See generally the case law under FRCP 26(c).

Anonymous Anon 11:18 -- 6/25/2007 1:07 PM  


Does not the language of FRCP 26(c) give the court wide discretion as to what may be sealed?

...may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense...

Blogger Jimmy H -- 6/25/2007 2:26 PM  


So what is the court rule or legal standard under which third parties can "unseal" a previously sealed document?

Blogger Rick Karcher -- 6/25/2007 2:45 PM  

Jimmy H. - Rule 26(c) is certainly broadly worded, but it has been interpreted narrowly in light of the First Amendment concerns involved, and the traditional common law right of access to judicial documents, which serves the vital function of allowing the public to monitor the actions of the judiciary. That being said, personal or private information is often protected under this standard and perhaps it should be here. My only point was the governing standard. For specific case law governing these types of situations, you'll have to look to someone that still has free westlaw access.

Prof. Karcher: The legal standard, at least in civil litigation, is 26(c), and the voluminous case law under it. A few minutes of research will show that media outlets frequently are granted standing to intervene to contest protective order sealing documents. I do not know if there are separate standards governing the sealing of warrant applications or criminal cases generally.

Anonymous Anon 11:18 -- 6/25/2007 5:38 PM  

Anon, We're in the same boat there, its amazing how much you miss the ability to do a simple search on westlaw or nexis.

Blogger Jimmy H -- 6/25/2007 6:21 PM  

Ah, Westlaw. A *VERY* cursory search turned up the following three cases of note:

1) United States v. Kott, 135 Fed. Appx. 69 (9th Cir. 2005) (unpublished and non-precedential), gives a pretty good overview of the current law in the 9th Circuit (Arizona, where the petition is pending, is in the 9th Circuit). Kott holds that there is a presumptive common law right of access to court records, including a warrant affidavit, that can be overcome only for sufficiently compelling reasons (which can include the need to protect reputational interests of the warrant target and/or third parties).

2) Times-Mirror v. United States District Court, 873 F.2d 1210 (9th Cir. 1989) declined to recognize a First Amendment or common law right of access to warrant affidavits, at least during the investigation and/or prior to an indictment.

Kott distinguished Times-Mirror because the investigation in Kott was completed and the target of the investigation and warrant (Mr. Kott) had pled guilty. Still, Times-Mirror is unique among the federal circuits in not recognizing some right of access to records, including warrant affidavits. So I wonder just how good it remains as precedent.

3) Answering Rick's question of what the legal standard should be: In the 9th Circuit, "to assert the common-law right of access, the media is required to make a threshold showing of a legitimate need for disclosure. Once that showing has been made, the court must balance the media's asserted need against any asserted reasons for confidentiality." United States v. Kaczynski, 154 F.3d 930, 931 (9th Cir. 1998) (yes, THAT Kaczynski).

Anon is correct that media outlets regularly petition district courts (and appeal those decisions) seeking access to criminal proceedings and records. One correction, though: FRCP 26(c) does not come into play here, because this is not a civil proceeding. There presently is no Federal Rules of Criminal Procedure on point, although proposed Fed R. Crim. P. 49.1, granting courts specific powers to seal and have redacted filings, could take effect on December 1. Absent the rule, federal courts long have been understood as having inherent powers to seal and redact documents for various reasons.

Blogger Howard Wasserman -- 6/25/2007 11:12 PM  

Just remember one thing here, everyone: The 9th Circuit is notorious for having its decisions overturned by the Supreme Court.

Anonymous Anonymous -- 6/26/2007 10:03 AM  

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