In re WP Co.

• Decision Date: 18 August 2016
• Docket Number: Civil Action No. 16-mc-351 (BAH)
• Citation: 201 F.Supp.3d 109
• Parties: In the MATTER OF THE APPLICATION OF WP COMPANY LLC d/b/a The Washington Post for Access to Certain Sealed Court Records
• Court: U.S. District Court — District of Columbia

201 F.Supp.3d 109

In the MATTER OF THE APPLICATION OF WP COMPANY LLC d/b/a The Washington Post for Access to Certain Sealed Court Records

Civil Action No. 16-mc-351 (BAH)

United States District Court, District of Columbia.

Signed August 18, 2016

Eric J. Feder, Davis Wright Tremaine LLP, New York, NY, Laura Rose Handman, Davis Wright Tremaine, LLP, Washington, DC, for In the Matter of the Application of WP Company LLC d/b/a The Washington Post for Access to Certain Sealed Court Records.

MEMORANDUM OPINION

BERYL A. HOWELL, Chief Judge

The WP Company LLC d/b/a The Washington Post (the "Post") filed this action seeking the unsealing of search warrant materials "relating to" the investigation by the United States Attorney's Office for the District of Columbia ("USAO") into alleged campaign finance violations during the 2010 District of Columbia mayoral election (the "Campaign Finance Investigation"). See Mot. Public Access Certain Sealed Ct. Recs. ("Post's Mot."), ECF No. 1. After the Post's motion was granted in part and denied in part, In re the Application of WP Co. ("Wash. Post I "), No. CV 16–MC–351 (BAH), 2016 WL 1604976 (D.D.C. Apr. 1, 2016), materials filed in connection with eighteen search warrants, issued between February 2012 and January 2015, were unsealed and made publicly accessible with limited redactions. Contending that the government has yet to unseal search warrants filed in furtherance of concededly "ancillary investigations" of Jeffrey E. Thompson, who was prosecuted as part of the Campaign Finance Investigation, the Post now seeks the unsealing of these additional warrant materials. See Suppl. Submission Supp. Post's Mot. ("Post's Suppl.") at 2, ECF No. 27.¹ For the reasons set out below, the Post's request for further unsealing in this case is denied.

I. BACKGROUND

Though styled as a "supplemental memorandum," the Post's latest filing is more easily understood as a new motion to unseal documents that, in the Post's view, "relate to" the Campaign Finance Investigation but were not previously unsealed in response to the Post's original motion in this action.² Indeed, while submitting that it "does not know precisely ... the current posture" of this action, Post's Suppl. at 1, the Post brought its present request nearly three months after resolution of the Post's original motion, Wash. Post I , 2016 WL 1604976, and a week after the case was administratively closed, see Min. Entry, dated June 8, 2016. Nonetheless, as explained below, see infra Part II.B.1, because the Post now seeks access to materials that were not at issue in the Court's disposition of the Post's original motion, the Post's present request for additional disclosure must be considered on its own merits. To that end, to determine whether any additional disclosure is warranted under either the First Amendment or the common law, the factual and procedural history preceding the Post's present motion is briefly summarized.

This action began in earnest on February 19, 2016, when the government and Jeffrey E. Thompson jointly moved for a protective order governing the production of materials turned over to Thompson as a part of his prosecution arising out of the Campaign Finance Investigation. See Protect. Order Governing Mats. Prod. Def., United States v. Thompson , No. 14–cr–49 (CKK) (D.D.C. Feb. 22, 2016), ECF No. 49. Three days later, the Post initiated this case by moving, pursuant to Local Rule of Criminal Procedure 57.6, for the unsealing of "court records relating to search warrants issued in connection with" the Campaign Finance Investigation and any "related investigations" of three individuals linked to the alleged campaign finance violations in that investigation. See Post's Mot. at 1.³

"Specifically, the Post [sought] access to: the search warrants, applications, supporting affidavits, court orders, and returns relating to the [Campaign Finance Investigation] ..., whether or not the warrant was issued and/or executed." Id. at 1. In support, the Post explained that this investigation "concerned issues at the very core of the First Amendment—the integrity of the District of Columbia's elections and its public officials." Id. at 3. Moreover, asserting a "similarly strong interest in more fully reporting on these matters to the public," id. (citing Decl. Laura R. Handman (Feb. 22, 2016), ECF No. 1-3), the Post contended it has a qualified right of access, under both the First Amendment and the common law, to any warrant materials filed in furtherance of the Campaign Finance Investigation. See Mem. Supp. Mot. Public Access Certain Sealed Ct. Recs. ("Post's Mem.") at 10–26, ECF No. 1-2. On March 24, 2016, the government submitted a sealed, ex parte response to the Post's motion, see Gov't's Notice of Filing, ECF No. 7, which has since been partially unsealed, see Order on Mot. Part. Unseal, ECF No. 21. As set out in the redacted response, the government did not object to the unsealing of warrant materials tied to the Campaign Finance Investigation with appropriate redactions to protect the privacy interest of individuals named in the documents to be disclosed. Gov't's Resp. Post's Mot. ("Gov't's Resp.") at 7–9, ECF No. 22.

Reviewing these submissions, the Court construed the Post's motion to seek "only warrant materials related to the now-closed Campaign Finance Investigations." Wash. Post I , 2016 WL 1604976, at *2 n. 2. Consequently, the Court granted in part and denied in part the Post's motion, and directed the government to file copies of the relevant warrant materials, with redactions to protect: "(1) the identities of uncharged third parties, (2) the identities and personal identifiers of any confidential informants, and (3) any personal identifying or contact information." Id. at *3. Following an in camera review, and certain limited additional redactions, the government released redacted versions of more than ninety documents, totaling nearly 1000 pages, for public review on April 15, 2016. See Gov't's Final Redactions, ECF No. 18.

While this action was pending, the sentencing of Thompson in the parallel criminal action was approaching. In connection with that sentencing, the government, on May 26, 2016, indicated its intention to submit a supplemental filing in the instant case that "may impact the content of the parties' memorand[a] in aid of sentencing and their respective allocutions at the sentencing hearing." Gov't's Consent Mot. Extend Time File Parties' Mems. Aid Sentencing & Cont. Sent. Hr'g at 3, United States v. Thompson , No. 14–cr–49 (CKK), ECF No. 54. The government has since clarified that certain materials currently under seal describe aspects of Thompson's "substantial assistance that did not result in public charges." Gov't's Mem. Aid Sent. ("Gov't's Thompson Sent. Mem.") at 16 n.8, United States v. Thompson , No. 14–cr–49 (CKK) (D.D.C. July 15, 2016), ECF No. 59. Specifically, the government explained that "arguably impeaching evidence related to other alleged conduct" had been identified "that potentially could have been used to undermine [Thompson's] credibility as a trial witness." Id. at 18. While choosing not to sponsor Thompson as a trial witness, the government emphasized that it was "unable to corroborate the most serious allegations related to [Thompson]'s other conduct, [and therefore] declined to pursue criminal charges related to such conduct." Id. at 18 n.9.

On June 3, 2016, the government made a supplemental filing, under seal and ex parte , in the instant case, which is now publicly available in redacted form. See Gov't's Suppl. Resp. Post's Mot. ("Gov't's Suppl."), ECF No. 37-1. In this redacted filing, the government explains that it has "completed its final witness interview" and "has declined to proceed with criminal charges against any of the individuals involved" in certain unidentified investigations. Id. at 3. Noting both this Court's prior recognition of the important governmental and individual privacy interests potentially harmed by the Post's requested disclosure, as well as Thompson's earlier stated interest in maintaining records related to him under seal, the government explained that it would be "impractical" to protect these interests through targeted redactions. Id. at 6.

In response to the government's supplemental filing, the Post filed its present request for additional unsealing on June 15, 2016. See Post's Suppl. The Post's supplemental filing cites the newspaper's own recent reporting that, during its investigation of alleged campaign finance violations, the USAO uncovered and investigated allegations concerning unrelated personal conduct involving Thompson. Id. at 4–5. Specifically, the Post points to information, based on "confidential and on-the-record sources," that investigators pursued allegations regarding Thompson's sexual relationships, as well as efforts to conceal these relationships from the public. Id. According to the Post's reporting, the investigation of this separate personal conduct ultimately influenced the USAO's charging decisions in relation to the Campaign Finance Investigation and, as such, was "plainly critical to the progress and outcome of" that investigation. Id. at 5. The Post notes, however, that the search warrant materials unsealed under the Court's prior orders in this case "did not include any materials related" to any such personal conduct investigations. Id.

With the government's revelation about "impeaching evidence related to other alleged conduct" by Thompson, Gov't's Thompson Sent. Mem. at 18, the Post now clarifies that its original motion sought not only warrant materials issued in connection with the Campaign Finance Investigation, but also any such materials arising from "related" investigations involving three individuals targeted by the USAO. Post's Suppl. at 7. The Post acknowledges that it is unaware of "the full scope of these ‘related investigations' ..., or whether those investigations were formally concluded along with...