Judge Touts Transparency Win After 5-Year Records Fight

WASHINGTON (CN) – A federal judge has opened the door for the public to access certain sealed government documents related to surveillance in closed criminal cases.

The Reporters Committee for Freedom of the Press brought their lawsuit to access such information in 2013 with Jason Leopold, an investigative journalist who earned the nickname “FOIA terrorist” for his frequent invocation of the Freedom of Information Act.

Though Leopold and the RCFP had initially requested access to some 20 years of sealed government documents regarding now-closed criminal investigation, the Department of Justice reported back even the details of closed investigations could jeopardize national security and witness safety, among other issues.

Chief U.S. District Judge Beryl Howell noted in an opinion Monday that the ensuing collaboration between the parties “substantially narrowed the legal dispute,” dodging the pitfalls of otherwise acrimonious litigation.

Under the Stored Communications Act, Leopold requested that the U.S. Attorney’s Office for the District of Columbia release all docket numbers in closed investigations, associated with government applications and orders relating to various surveillance devices — including pen registers, trap and trace devices, tracking devices, cell site location, stored email, telephone logs, and customer account records from electronic service providers for all closed cases.

Leopold also wanted the agencies to begin unsealing aforementioned documents going forward after 180 days, but the USAO called this expiration  date arbitrary.

As the parties worked to narrow the scope of the request, Howell said that Leopold won access to docket numbers and limited docket information for pen-register surveillance, trap-and-trace devices, and certain Stored Communications Act matters filed during an agreed-upon range of years.

To assess both the burdens of redacting and unsealing the requested records and the value of the information yielded, meanwhile, the USAO released redacted applications and orders for pen-register surveillance and trap-and-trace devices, from a sampling of such matters filed in 2012.

Ultimately the USAO extracted, unsealed and released agreed-upon categories of information from 10 percent of these 2012 cases.

Summarizing Leopold’s criticism of such limited sampling, Judge Howell noted that the journalist argued anything less than access to 100 percent of materials “might be worse than useless by yielding incomplete and misleading information.”

“Yet the administrative burden on the USAO and Clerk’s Office that would be triggered by compelling the USAO to fulfill the petitioners’ request for unsealing and disclosure of fifteen categories of extracted information in all PR/TT matters filed over nine years, would be unduly significant,” the 70-page opinion continues.

Howell thus denied the reporters retrospective relief but said they are entitled to prospective relief, “given the USAO’s and Clerk’s Office’s recently adopted administrative and operational changes in processing sealed government surveillance applications in criminal investigative matters.”

“Such standardized captions will enable the Clerk’s Office periodically to generate reports on the CM/ECF system reflecting the total number, matter docket numbers, and case captions associated with sealed matters, which reports may be unsealed and made publicly accessible, undertaking the burdensome task of redacting personally identifiable or target information that may otherwise — and historically has been — placed in the caption,” Howell added.

Howell also said that the memorandum of understanding “will facilitate the unsealing and disclosure of limited information revealing the numbers, case captions and filing dates of additional categories of sealed surveillance materials, as such materials are added to coverage under the MOU.”

The ruling concludes with an order for the Clerk’s Office to assign more specialized docket numbers going forward so that case types are more readily identifiable, helping to make the process less daunting.

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