United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS United States District Judge.
John Riley ("Riley"), a member of the public and
reporter for Newsday, has petitioned the court to unseal a
sealed, classified letter (the "Sealed Letter")
submitted by Defendant's counsel to the court in the
above-captioned case. (See Mot. to Unseal ("Mot.")
(Dkt. 56).) For the following reasons, the Motion is DENIED.
connection with its submission of sentencing material, the
Government moved for- and the court ordered-entry of a
protective order pursuant to, inter alia, Section 3
of the Classified Information Procedures Act
("CIPA"), 18 U.S.C. App. 3 § 3, and Rules
16(d) and 57 of the Federal Rules of Civil Procedure. (See
Mot. for Protective Order (Dkt. 37); Protective Order (Dkt.
40).) That Protective Order establishes procedures for
limiting public disclosure of documents or information
relating to the case that are designated as "classified
... in the interests of national security" or derived
from designated classified information. (Protective Order
submitted the Sealed Letter to the court on March 23, 2017,
pursuant to CIPA, noting that the letter was
"presumptively classified." (See Not. of
CIPA Filing (Dkt. 48).) On April 20, 2017, in connection with
a status conference held on the same day, Defendant's
counsel submitted a letter to the court to "frame the
issues at hand" in that conference. (Def. Apr. 20, 2017,
Ltr. (Dkt. 55) at 1.) The purpose of that hearing was to
discuss redactions to a classified Government submission. In
their letter, Defendant's counsel referenced the Sealed
Letter, stating that it sought "specific answers to some
of the reasonable inferences that can be drawn from the
Government's [classified] submission." (Id.
April 20, 2017, Riley moved the court to unseal the Sealed
Letter. (Mot.) Both the Government and Defendant
have stated that they do not object to release of those
portions of the Sealed Letter determined to be unclassified.
(Gov't Resp. to Mot. (Dkt. 61) at 1.); Def. Resp. to Mot.
(Dkt. 59) at 1-2.) Subsequent to these submissions, the
Classified Information Security Officer charged with
protecting classified information related to this case
provided the court with a redacted copy of the Sealed Letter,
which had been determined to be unclassified.
court finds that continued sealing of the redacted portions
of the Sealed Letter is proper in light of the standards
governing public access to judicial documents and so denies
the motion to unseal.
public enjoys a presumptive right of access to judicial
documents under the common law and a "qualified First
Amendment right... to access certain judicial
documents." Lugosch v. Pyramid Co. of Onondaga,
435 F.3d 110, 119, 120 (2d Cir. 2006) (internal quotations
marks and citation omitted). Where the common law right
applies, the court must apply a "presumption of access,
" with the weight of the presumption determined by the
"role of the material at issue in the exercise of
Article III judicial power" and its "resultant
value ... to those monitoring the courts." United
States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 1995). In
those cases, the "court must balance competing
considerations against disclosure, " permitting a
document to be sealed from public access only where the
"competing interests outweigh the presumption."
Lugosch, 435 F.3d at 120. The qualified First
Amendment right of access provides an additional, stronger
level of protection than does the common law right, such that
courts may only resist disclosure where "specific, on
the record findings are made demonstrating that closure is
essential to preserve higher values and is narrowly tailored
to serve that interest." United States v. Erie Cty.
N.Y., 763 F.3d 235, 239 (2d Cir. 2014) (internal
quotation marks and citations omitted). Either or both of
these rights of access may extend to criminal sentencing
proceedings, and documents used in aid of those proceedings
are "presumed to be open to the public." United
States v. Huntley, 943 F.Supp.2d 383, 385 (E.D.N.Y.
2013) (citing Nixon v. Warner Commc'ns, 435 U.S.
589, 597-98 (1978fl: see United States v. Alcantara,
396 F.3d 189, 196-98 (2d Cir. 2005)); United States v.
McLaughlin, No. 06-CV-965 (RJS), 2009 WL 4729877, at *1
(S.D.N.Y. Dec. 10, 2009) (holding that the common law
provides a "presumptive right of access" to a
rights of access afforded by the common law and First
Amendment are not absolute, however, and the need for
disclosure may be overcome where the party seeking to seal
the documents can show that there are "countervailing
factors" (in the common law framework), see
Amodeo, 71 F.3d at 1050, or that sealing is necessary to
preserve "higher values" (in the First Amendment
context), see Alcantara, 396 F.3d at 200. Courts
have listed a number of qualifying "higher values"
which may justify sealing, including the Government's
interest in protecting national security and related
information. See United States v. Aref. 533 F.3d 72,
82 (2d Cir. 2008) (redaction for "higher values"
justified on a showing that information sought would
"impair identified national interests"); cf
United States v. Moussaoui, 65 F.App'x 881, 887
(4th Cir. 2003) (unpublished) ("At the outset, we note
that there can be no doubt that the Government's interest
in protecting the security of classified information is a
compelling one.") "The party moving to seal a
document (or to maintain it under seal) bears the burden of
establishing that sealing is warranted." United
States v. Zazi, Nos. 09-CR-663 (RJD), 10-CR-19 (RJD),
2010 WL 2710605, at *2 (E.D.N.Y. June 30, 2010).
court finds that continued sealing of the redacted portions
of the Sentencing Memorandum is warranted, as the national
security interests implicated by the redactions to the Sealed
Letter constitute "higher values" sufficient to
outweigh the presumption of public access.
court has reviewed both the redacted and original copies of
the Sealed Letter in camera and finds the redactions
to be both consistent with the Government's interest in
protecting national security. The redactions to the Sealed
Letter relate only to classified information of the type that
necessitated the Protective Order in the first instance
(see Protective Order ¶ 10) and are necessary
to prevent the inadvertent public disclosure of information
that could do "exceptionally grave damage to the
national security of the United States" (id. ¶ 13).
The court further finds that the redactions, limited as they
are to a handful of words and phrases, are "no broader
than necessary" to protect the public's qualified
First Amendment right to access judicial documents.
Aref, 533 F.2d at 82.
court therefore finds that "higher values"
necessitate the proposed redactions and continued sealing of