The opinion of the court was delivered by: FOSCHIO
On April 25, 1995, the undersigned issued a search warrant for the premises at 6289 Campbell Boulevard, Pendleton, New York, the residence of William McVeigh and his daughter, Jennifer McVeigh. The McVeighs are, respectively, the father and sister of Timothy James McVeigh, who, at the time the search warrant was issued, was a suspect in the tragic bombing of the Murrah Federal Building in Oklahoma City. Timothy McVeigh and another person, Terry Nichols, were subsequently indicted for this crime and are awaiting trial in the United States District Court in Denver, Colorado.
To facilitate the intense investigating efforts of the Government, the search warrant and application were sealed by the undersigned on April 22, 1995 and except for opening and resealing on April 24, 1995 to file the return, and again on August 10, 1995 to make a copy for pretrial discovery purposes, the papers have remained sealed until the court took the instant motion under advisement.
Since April, 1995, the court has received several informal requests from the media for access to the search warrant. Each time, upon being advised by the Government that there was a continuing investigative need to maintain the warrant under seal, the court verbally and by letter response to written inquiries, declined to unseal the documents.
On January 10, 1997, Petitioner moved by order to show cause to unseal the warrant and related filings as to the McVeigh residence.
On January 13, 1997, the Government, by affidavit of Kathleen Mehltretter, Assistant United States Attorney, stated she had conferred with the Government's prosecution team in the McVeigh case and advised the court that the Government had no objection to the requested unsealing. ("Government's Affidavit")
However, on January 22, 1997, Timothy McVeigh filed his opposition to the motion. On January 21, 1997, Jennifer McVeigh filed her opposition to the motion. Petitioners filed their reply memorandum on January 23, 1997.
Oral argument was deemed unnecessary.
For the reasons which follow, the motion is GRANTED, in part and DENIED, in part subject to limited redactions necessary to protect the personal privacy interests of Jennifer McVeigh and William McVeigh.
First, there is no dispute among the parties that Timothy McVeigh has been indicted and that neither Jennifer McVeigh nor her father, William McVeigh, are targets of the investigation. Second, given the posture of the case against Timothy McVeigh, and the fact that the Government has no objection to the unsealing, the court finds that the public's interest in access to a search warrant which has been executed and filed in the Clerk's office of this court has attached to the warrant at issue as a public document. United States v. Warner Communications, 435 U.S. 589, 597-90, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978); Application of Newsday, Inc., 895 F.2d 74, 79 (2d Cir. 1990) (recognizing warrant and related applications as public document filed under seal "subject to common law right of access").
Timothy McVeigh argues that unsealing the warrant with the attendant publicity will deprive him of a fair trial. Certainly, this court is mindful of McVeigh's Sixth Amendment rights. But the question is whether the public's right of access under the First Amendment can be overcome by findings that there is a "substantial probability that the defendant's right to a fair trial will be prejudiced by publicity that closure would prevent and, second, that reasonable alternatives to closure cannot adequately protect the defendant's fair trial rights." Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 14-15, 92 L. Ed. 2d 1, 106 S. Ct. 2735 (1986). McVeigh asserts that the requested unsealing would invite publication of material similar to information which the district court judge, Hon. Richard P. Matsch, assigned to his trial, has refused to unseal. T. McVeigh Opposition at p. 2. However, Petitioners note that, according to the Government's Affidavit filed in this matter, Judge Matsch has been aware of this application and this court has not received any indication that Judge Matsch has expressed any concern regarding the instant application to unseal the warrant papers for the McVeigh residence. Government's Affidavit at P 4. Further, Timothy McVeigh's papers in opposition fail to establish, as required under Press-Enterprise Co., supra, why there is a substantial probability that McVeigh's right to a fair trial will be prejudiced and that reasonable alternatives to nondisclosure cannot adequately protect his fair trial rights. Press-Enterprise Co., supra. The Court's observations in Press-Enterprises that careful voir dire can screen out jurors "whose knowledge of the case would disable them from rendering an impartial verdict," and that "the First Amendment right of access cannot be overcome by the conclusory assertion that publicity might deprive the defendant of that right [to a fair trial]" are apposite to the issue here. Accordingly, the court finds no justification to refuse Petitioners' request on this ground.
However, the Second Circuit has recognized that the public's right of access is "qualified by recognition of the privacy rights of the persons whose intimate relations may thereby be disclosed." Application of Newsday, Inc., supra, at 79. Courts should therefore exercise discretion to avoid unjustified disclosure of such intimate personal information by ordering redactions of the requested documents as needed to protect the individual privacy interests of "innocent third parties as well as those of defendant's." Id. There is no dispute that neither Jennifer nor William McVeigh are targets of the investigation relating to the Oklahoma bombing. Applying this standard, the court finds that certain information listed in the warrant's return and a statement attributed to Mr. William McVeigh contained in the application qualify as protectable information under the "intimate relations" exception to disclosure.