Case 1:16-mc-00351-BAH Document 44 Filed 08/03/16 Page 1 of 16

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OT COLUMBIA

IN THE MATTER OF THE

APPLICATION OF THE WP COMPANY Civil No. 16-MC-351 (BAH)
LLC dtbla THE WASHINGTON POST
FOR ACCESS TO CERTAIN SEALED FILED UNDER SEAL
COURT RECORDS

AND EX PARTE

GOVERNMENT'S RESPONSE TO
THE COURT'S JU LY 19.2016 ORDER
The United States, by and through its attorney, the United States Attorney

for the District of Columbia, respectfully submits its Response to the Court's July
19, 2016, Order drrecting the Government to address the following: "

(2)

and (3) whether the government's prior submissions docketed at

[26] and [30-1] in this case may be filed in redacted form on the public docket."

Summary of the Government's

Resnonse to the Court's .Iulv 19. 2016 Order

Case 1:16-mc-00351-BAH Document 44 Filed 08/03/16 Page 2 of 16

Finally, consistent with the Court's Order, attached hereto as Exhibits

2 are the Government's

1 and

proposed redactions regarding Doc. Nos. 26 and 30.1,

respectively.

BackEround
On February 22, 2016, the Washington Post ("the Post") filed a motion for
public access to certain sealed court records "relating to search warrants issued in
connection with the investigations by the United States Attorney's Of6ce for the

District of Columbia (the 'USAO') into campaign frnance corruption during the 2010
election of Vincent C. Gray ("Mayor Gray") as mayor of the District of Columbia,
2

Case 1:16-mc-00351-BAH Document 44 Filed 08/03/16 Page 3 of 16

and related investigations into Mayor Gray, Jeffrey E. Thompson and Eugenia L.

Harris, the formal conclusion of which was recently announced by the USAO (the
'Election Investigations')." See Post's Mot. (Doc. No. 1) at 1. On March 24,2O16, the

government filed its

initial

Response to the Washington Post's motion for public

access to certain sealed court records

("Initial Response"). The government's Initial

Response was filed under seal and ex parte. See Doc. No. 7 (Notice of

April

1, 2016, the Court granted

Filing).

On

in part and denied in part the Washington Post's

motion for public access to certain sealed court records.

Court's ruling, the government filed

its

In

accordance

with the

to the

Election

proposed redactions

Investigation warrant materials on April 8, 2016 and its final redactions to those

materials on April f5, 2016. See Doc. Nos. 8 &14. Therefore, on April 15, 2016,
redacted versions of the Election Investigation warrant materials were released to
the public.

In its Initial Response, the government did not oppose the Washington Post's
motion

to unseal the Election Investigation warrant materials, with

certain

redactions to protect uncharged third parties, confrdential informants, and personal

information such as phone numbers and addresses.

Motion to Unseal (Filed Under Seal) at 7-9.

ee id..

at

9.

See Government Response to

Case 1:16-mc-00351-BAH Document 44 Filed 08/03/16 Page 4 of 16

d. at 4.

On June 6, 2016, the government filed a Supplemental Response to the

Washington Post's motion

for public

access

to certain

sealed court records

("Supplemental Response") (Doc. No. 26) (Sealed). The government's Supplemental

Response advised the Court that "the FBI has completed its frnal witness interview

on May 24, 2016, and that, after reviewing the Memorandum of Interview, the U.S.

Attorney's Offrce has declined to proceed with criminal charges against any
individuals involved in the investigation." Id. aL 3.

at 3-4. According to the Docket in this matter, it appears

that the Clerk of the Court closed this matter on June 8, 2016.
Nevertheless, on June 15, 2016, the Washington Post filed a "Supplemental
submission

in further support of motion for public

records" ("supplemental Submission") (Doc. No.

Submission, the Post reiterated

access

to certain sealed court

27). In the Supplemental

its interest in the search warrant materials

and

requested "some limited access to the Government's ex parte filings in this case, or,

in the alternative, requests a conference with the Court to discuss potential ways to
4

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provide the Post with the opportunity to respond to arguments against disclosure of

materials" the Government raised in its previous submissions. Id. at

l.

On June 29, 2016, the Government frled a response to the

Post's

Supplemental Submission ("Government's Supplemental Submission") (Doc. No.

30). In this

response,

Doc. No. 26. Id. at 4

On July 19, 2016, the Court directed the Government to address the
following: "(1) whether the government has taken any steps and,

if

so, to identiS,

such steps, to noti$r any individuals whose privacy interests may be implicated

through the additional disclosure requested by WP; (2) whether the government
asserts any compelling interest
disclosure in this case and,

if

that may be harmed through any additional

so, to identify such interests and the basis for their

assertion, including, for example communications

with any individuals notified

under (1) above; and (3) whether the government's prior submissions docketed at
[26] and [30-1] in this case may be frled in redacted form on the public docket."

Discussion

I.

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II.

Case 1:16-mc-00351-BAH Document 44 Filed 08/03/16 Page 7 of 16

Doc. 26 at 3).

A.

Applicable Legal Priuciples

Both the First Amendment and the common iaw provide possible bases for an
interested party to seek public access to criminal proceedings and documents.

See

1z

re Application of New York Times Co. for Access to Certain Sealed Court Records

("In re New York Times"),585 F. Supp. 2d 83, 87 (D.D.C. 2008). As explained in/ra,

Case 1:16-mc-00351-BAH Document 44 Filed 08/03/16 Page 8 of 16

however, these rights are "qualified." A court may restrict public access in light of
competing interests.

1.
"[]n

The First Arnendment Qualified Right of Access

determining whether the public has

a qualified right of access

to

criminal proceedings," under the First Amendment, "courts must analyze two
factors," commonly referred to as the "experience and logic"
Times,585 F. Supp. 2d

at87. First, the court must

test. 1n re New

York

consider "whether the place and

process have historically been open to the press and general public." 1d. Second, the

court must determine "'whether public access plays a significant positive role in the
functioning of the particular process is question."' Id. (quoting Press'Enterprise
u. Superior

Co.

Court, 478 U.S. 1, 8-9 (1986)). "[T]he First Amendment right of access is

'qualified,' and is not absolute." Id. at 90. The government may, therefore, offer

compelling reason that a particular criminal proceeding or record should remain out
of public view. See id..z "Under the First Amendment qualified right of access test,

the government must demonstrate that total restriction of the right of access is
narrowly tailored to accomplish its compelling interests." Id. at 91.
The issue presented in In re New York Times was "whether or not there [was]

a First

Amendment qualified

right of

access

to warrant materials after

an

investigation has concluded." 585 F. Supp. 2d at 88. "Applying the 'experience' and

'logic' test

in the first

instance

to the question of post-investigation warrant

Using the "experience and logic" test, the D.C. Circuit has held that the First Amendment
quafified right ofaccess extends to plea agreements. See Washington Posl v. Robinson,935 F.2d
282,287-288 (D.C. Cir. l99l).
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materials," the court concluded that "both prongs

of the Supreme

Court's

'experience' and'logic' test weigh in favor of a qualified First Amendment right of

access to warrant materials after an investigation has been completed[.]"

Id. at 88,

90. First, with respect to the "experience" prong, the court concluded that "[t]he
post-investigation warrant materials sought

in this

case have historically been

available to the public, and therefore meet the first prong of the Supreme Court's

First Amendment qualified right of access test." Id. at 88. Second, with respect to
"logic" prong, the court reasoned that the "openness of judicial processes and
documents gives assurance that established procedures are being followed and that

deviations wiII become known and corrected." Id'. at 90 (internal quotation marks
omitted).3

2.

The Common Law Right of Access

In addition to frnding a First Amendment qualifred right of access to warrant

materials after an investigation has concluded, the court in

In

re New Yorh Times

found that there was a common law right of access to warrant materials after an
investigation has concluded. 585 F. Supp. 2d at 92. But, "[w]hen making a decision

whether or not the public has the right to inspect judicial documents under the
common Iaw test, the

trial court has substantial discretion to make a decision in

Iight of the relevant facts and circumstances of the particular case." 1d. Borrowing
3 Having concluded that there was a First Amendment qualified right of access to postinvestigation warrant materials, the court in In re New York ftr?res concluded that the
govemment, in that particular case, had "not present[ed] a compelling interest in keeping the
materials secret[.]" 585 F. Supp. 2d at90.

Case 1:16-mc-00351-BAH Document 44 Filed 08/03/16 Page 10 of 16

the six-factor test from United States u. Hubbard,650 F.zd 293 (D.C. Cir. 1981), the
court in In re New York Times considered:
(1) the need for public access to the documents at rssue; (2)
public use of the documents; (3) the fact of objection and
identity of those objecting to disclosure; (4) the strength of
generalized property and privacy interests asserted; (5)
possibility of prejudice; and (6) the purposes for which
documents were introduced.
585 F. Supp. 2d

at

92.a

the
the
the
the
the

In In re New Yorh Times, the court, "using its substantial

discretion," held that "the common law factors favor disclosure" in that particular
case.

Id. at

B.

93.

Legal Analysili

The court deemed the sixth Hubbard factor to be inapplicable under the circumstances. See
re New York Times,585 F. Supp. 2d at 92 n.13.

l0

,,

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5 On April 14, 2016, the Washington Post published an article discussing accounts that
"Ii]nvestigators last year began asking questions about the ages ofThompson's sexual partners to
determine whether he had committed a crime" and that "lp]rosecutors also conducted interviews
about money and gifts Thompson gave young men, and about whether he did so to hide sexual
relationships." See Ann E. Marinow, "Case against ex-D.C. mayor Gray stalled over claims key
witness had credibilitv issue." https://www.washingtonp ost.com/local/publ ic-salety/case-againstex-dc-mayor-gray-stal led-over-claims-key-witness-had-credibility -issue/201 6/04/ 1.1/1 1205 53e0l8f- I I e6-9203-7b8670959b88 story.html last visited June l. 2016

ll

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t2

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l3

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l4

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The Government's Proposed Redactions Regarding Doc. Nos. 26 and

30.1.

Consistent with the Court's Order, attached hereto as Exhibits

the

Government's proposed redactions regarding Doc. Nos.

respectivell,.

(Enclosures)

l5

and 2 are

26 and

30.1,

Case 1:16-mc-00351-BAH Document 44 Filed 08/03/16 Page 16 of 16

WHEREFORE, the government respectfully requests that the Court issue

an Order denying the Post's requested disclosure.

Respectfully Submitted,

CHANNING D. PHILLIPS
D.C. Bar No. 415793
United States Attorney
For the District of Columbia
Michael K. Atkinson
D.C. Bar No. 430517
Assistant United States Attorney

By:

DERRICK L. WILLIAMS
Assistant United States Attorney
555 4th Street, N.W.
Washington, D.C. 20530
202-252-7898
Derrick.Williams2@usdoi. sov

DATED: July 26, 2016

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