The opinion of the court was delivered by: Platt, District Judge
MEMORANDUM FOR ACCESS TO CERTAIN and ORDER SEALED DOCUMENTS IN 05-M-1539
Before this Court is an application by San Francisco Chronicle and Albany Times Union newspapers to unseal redacted and sealed information in a search warrant affidavit submitted to the Court in United States v. The Premises Known and Described As [Redacted], No. 05-1539 (E.D.N.Y.).*fn1 The Applicants base their applications in this proceeding on the First Amendment and federal common law rights of access to publicly filed judicial documents. For the following reasons, the motion is DENIED. The additional request to hold oral argument in the same matter is also DENIED.
On December 14, 2005, federal agents executed a search warrant at the home of Kirk Radomski. The warrant was based on an affidavit by IRS Special Agent Jeff Novitzky which describes the evidence demonstrating that Mr. Radomski illegally distributed anabolic steroids to various professional baseball players. As a result of the search that occurred and the subsequent investigation, Mr. Radomski was indicted for steroid distribution, in violation of 21 U.S.C. § 841(a)(1), and money laundering, in violation of 18 U.S.C. § 1956. On April 27, 2007, Mr. Radomski pleaded guilty. In announcing the guilty plea, the government noted that Mr. Radomski would be required to cooperate with the government on an ongoing basis, and further noted that Mr. Radomski would be required to cooperate with the Mitchell Commission in its task of investigating illegal steroid use in Major League Baseball.
On the same date that Mr. Radomski pleaded guilty, the government filed a motion to unseal portions of the search warrant affidavit for Mr. Radomski's home. The unsealed material included information outlining the government's investigative steps in gathering information in support of the search of Mr. Radomski's home. The government redacted two categories of information: (1) personal information of Mr. Radomski and (2) names of individuals who have not been charged with any crime. The government asserts that this information is relevant to an ongoing investigation.
The San Francisco Chronicle and Albany Times Union have made their application to this Court to unseal the redacted portions of the search warrant materials in the pending action based on two grounds: (1) First Amendment right of access, and (2) federal common law right of access to publicly filed judicial documents. We will address each ground seriatim.
The Second Circuit has articulated two approaches to determine whether a First Amendment right of access applies to particular judicial documents. Lugosch v. Pyramid Co., 435 F.3d 110, 120 (2d Cir. 2006). First is the "logic and experience" approach which recognizes a First Amendment right where the documents have historically been open to the public, and where public access plays a significant role in the oversight and functioning of the judiciary. Id. The second approach considers the extent to which access to the documents is a necessary corollary of the public's capacity to attend relevant judicial proceedings. Id. Applicants fail to satisfy either approach.
There is no tradition of public access to the names of unindicted third-parties and to specific personal identifying information where disclosure of this information is sought by the public. Additionally, there is no traditional right of public access to search warrant materials nor is there a traditional right for the public to attend search warrant proceedings, which are conducted ex parte. To the contrary, pre-trial proceedings in general are historically not proceedings which are made open to the public. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 21-24 (1986) (Stevens J., dissenting) (discussion of historical lack of openness of pre-trial proceedings); Times Mirror Co., v. U.S., 873 F.2d 1210, 1213-14 (9th Cir. 1989) (no historical tradition of access to warrant proceedings).
Furthermore, public access to the names of baseball players with whom Mr. Radomski is associated, and to Mr. Radomski's home address and telephone number at the time of the search, has no role in the oversight or functioning of the judicial and law enforcement processes of applying for, approving, and executing search warrants. Requiring public disclosure would have a negative effect on the government's effort to investigate criminal conduct including the potential of witness corruption, the destruction of evidence, and the flight of persons under investigation.
Applicants also fail to satisfy the second approach. Because there is no traditional public right to attend search warrant proceedings, public disclosure of the search warrant materials cannot be "a necessary corollary of the capacity to attend the relevant proceedings." Hartford Courant Co. v. Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004).
Even if this Court were to determine that a qualified First Amendment right of access applies to search warrant materials, the redactions may remain sealed if "specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Lugosch, 435 F.3d at 120.
In this case, the sealed affidavit lays out sufficient information for this Court to make an on-the-record finding that continued closure is necessary to preserve ongoing criminal investigations in the pending action. These ongoing investigations (1) continue to rely on the cooperation of Mr. Radomski, (2) have relied on and may continue to rely on the cooperation of third parties whose names have been redacted in the affidavit and who have already been contacted by the government, (3) may rely on the future cooperation of third parties whose names have been redacted, and (4) have relied on ...