In re Associated Press
| Docket Number | Civil Action 5:22-mc-00111 |
| Decision Date | 01 September 2023 |
| Parties | IN RE ASSOCIATED PRESS, et al. |
| Court | U.S. District Court — Southern District of Texas |
Pending before me is an Application to Unseal Court Records (“Application”) filed by The Associated Press Gannett Co., Inc., Gray Media Group, Inc., Hearst Corporation, and the Texas Tribune (collectively “Applicants”). Dkt. 1. Having reviewed the briefing and the applicable case law, and for the reasons explained below, I conclude that all of the court records at issue, except for the docket sheets, should remain under seal. Accordingly, the Application (Dkt. 1) is GRANTED in part and DENIED in part.[1]
Applicants initiated this proceeding to unseal “certain court records related to search warrants obtained pursuant to Federal Rule of Criminal Procedure 41 and executed at the Laredo home and campaign office of U.S. Representative Henry Cuellar on or about January 19, 2022.” Dkt. 1 at 1. In particular, Applicants request the unsealing of “search warrant applications any supporting affidavits, the search warrants themselves, the returns, the docket sheets, and any related judicial records” (collectively, the “search warrant materials”). Id.
The searches of Rep. Cuellar's home and campaign office on January 19, 2022 were widely reported by the news media after observers saw FBI agents carrying out the searches at both locations. One press report noted that more than “two dozen agents filed in and out of the [Cuellar] residence,” removing “large bags, plastic bins, and a computer” and loading those into federal vehicles. Valerie Gonzalez, FBI Probe Targets Rep. Cuellar's Home, Campaign HQ in Laredo, MONITOR (Jan. 19, 2022), https://myrgv.com/local-news/2022/01/19/fbi-activity-underway-near-rep-cuellars-home-in-laredo/. That same media outlet reported that “[a]gents were also present at [Rep. Cuellar's] downtown campaign office in Laredo.” Id.
The FBI expressly acknowledged that it searched Rep. Cuellar's property as part of an ongoing investigation. “The FBI was present [on January 19, 2022] in the vicinity of Windridge Drive and Estate Drive [near Rep. Cuellar's home] in Laredo conducting court-authorized law enforcement activity.” FBI Confirm Search near Texas Home of Rep. Henry Cuellar, CNBC (Jan. 20, 2022, 8:36 AM), https://www.cnbc.com/2022/01/20/fbi-confirm-search-near-texas-home-of-rep -henry-cuellar.html. “The FBI cannot provide further comment on an ongoing investigation,” said Rosanne Hughes, a public affairs officer out of the FBI's San Antonio Division. Id. Although the FBI spokesperson said the FBI was conducting “court-authorized law enforcement activity,” she did not say what the FBI was investigating. Id.
A few days after federal agents searched his home and campaign office, Rep. Cuellar publicly acknowledged a federal investigation: “There is an ongoing investigation that will show that there was no wrongdoing on my part,” Cuellar said. Patrick Svitek, After FBI Raid, U.S. Rep. Henry Cuellar Says Investigation Will Prove “No Wrongdoing on My Part,” TEX. TRIB. (Jan. 25, 2022, 4:00 PM), https://www.texastribune.org/2022/01/25/henry-cuellar-texas-fbi/. In April 2022, a few months after the searches took place, Rep. Cuellar's attorney, Joshua Berman, told CBS News: Aaron Navarro, Texas Rep. Henry Cuellar Is Not the Target of FBI Investigation, His Attorney Says, CBS NEWS (Apr. 13, 2022, 9:21 PM), https://www.cbsnews.com/news/henry-cuellar-texas-representative-not-fbi-investigation-target/.
At the same time that Applicants filed this action to unseal certain court records related to the searches of Rep. Cuellar's home and campaign office, Applicants provided the Court with a Memorandum of Points and Authorities in Support of Application. See Dkt. 1-1. To allow for full consideration of the issues surrounding the request to unseal the search warrant materials, I ordered the Government to provide a brief setting forth its stance on whether certain court records should be unsealed. See Dkt. 5. I also gave Applicants the opportunity, once the Government outlined its position, to file a reply brief in support of its request to unseal court records. See id.
In accordance with my instructions, the Government filed a Response in Opposition to Motion to Unseal Court Records. Dkt. 7. That pleading, however, was filed entirely under seal-not a single word was available for public view. Even the Applicants could not review the briefing. As a result, the Applicants had no way to discern why the Government opposed their efforts to unseal the search warrant materials.
Unsurprisingly, Applicants promptly filed a Motion to Unseal Response. Dkt. 8. In that motion, Applicants argued that “[t]he Government's desire to litigate this matter in secret cannot be squared with the common law and First Amendment rights of access to judicial records, and it flies in the face of the principle that ‘[o]ur adversarial legal system generally does not tolerate ex parte determinations on the merits.'” Id. at 5 (quoting Application of Eisenberg, 654 F.2d 1107, 1112 (5th Cir. Unit B 1981)). The Government responded with a sealed Opposition to Motion to Unseal Sealed Response of the United States (Dkt. 9), explaining why it objected to unsealing Dkt. 7. I issued a 10-page opinion in which I ordered the partial unsealing of Dkts. 7 and 9, which I believed was “the best way to promote the public's interest in transparency while still protecting the Government's investigation.” See Dkt. 13 at 8. After redacted versions of Dkts. 7 and 9 were made publicly available,[2] I set a date for Applicants to file a reply brief in support of the Application. Applicants timely filed their reply brief. Dkt. 22.
With full briefing from the parties before me, I can now finally consider the ultimate question: whether the search warrant materials should be unsealed.
Applicants contend that the public's right of access under both the common law and the First Amendment demands full or partial unsealing of the search warrant materials. For the reasons described below, the particular circumstances of this case preclude me from granting Applicants' request, except as to the docket sheets.
“The public's right of access to judicial records is a fundamental element of the rule of law.” Le, 990 F.3d at 417 (quotation omitted). This common law right of access allows members of the general public “to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). Search warrants and supporting affidavits are considered “judicial documents” within the public's right of access. Sealed Search Warrants, 868 F.3d at 396.
The common law establishes a “presumption in favor of the public's common law right of access to judicial records.” S.E.C. v. Van Waeyenberghe, 990. F.2d 845, 849 (5th Cir. 1993). This presumption reflects the fact that “[p]ublic confidence in our judicial system cannot long be maintained where important judicial decisions are made behind closed doors and then announced in conclusive terms to the public, with the record supporting the court's decision sealed from public view.” United States v. Holy Land Found. for Relief & Dev., 624 F.3d 685, 690 (5th Cir. 2010) (cleaned up); see also Sealed Search Warrants, 868 F.3d at 395 ().
The right to access public records, however, “is not absolute.” Nixon, 435 U.S. at 598. The United States Supreme Court has determined that “the decision as to access is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case.” Id. at 599. Not surprisingly, the Fifth Circuit has followed suit, requiring district courts to “exercise their discretion by balancing the public's right to access judicial documents against interests favoring nondisclosure.” Sealed Search Warrants, 868 F.3d at 396. Even so, “the district court's discretion to seal the record of judicial proceedings is to be exercised charily.” Van Waeyenberghe, 990 F.2d at 848 (quotation omitted).
In Sealed Search Warrants, the Fifth Circuit directed district courts to exercise their discretion on a case-by-case basis when determining whether to unseal pre-indictment warrant materials:
If the unsealing of pre-indictment warrant materials would threaten an ongoing investigation, the district court has discretion to make redactions prior to unsealing or, where necessary, to leave the materials under seal. The same is true where unsealing such materials might endanger or discourage witnesses from providing evidence or testimony, or where the publication of a warrant could damage an unindicted target's reputation while leaving no judicial forum to rehabilitate that reputation.
868 F.3d at 395. “A case-by-case approach to pre-indictment warrant materials gives the district court discretion in balancing the legitimate interests against public access against the public's interests supporting access.” Id. at 395-96.
When deciding whether to keep search warrant materials under seal district courts must make “detailed, clear, and specific findings.” Id. at 397. “While the district court need not conduct an exhaustive assessment, it must...
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