AAN joins amicus brief seeking rapid access to unsealed records

april 25, 2016  10:00 am
In June 2013, police officers in Gardena, CA were involved in a shooting that resulted in several injuries and one death. Video was captured on the dash cams of the officers’ patrol car. The City of Gardena gave the video to the court within the confines of a civil rights lawsuit filed against the city; however, the video was also protected by a court-approved protective order. That lawsuit civil rights lawsuit was settled but a number of media organizations later filed a motion to intervene in that suit, solely for the purpose of requesting the dash cam footage from the court.

Last summer, the U.S. District Court for the Central District of California issued a great ruling: it unsealed all video exhibits and, at the same time, held that any stay of its order would be inappropriate, meaning the video should be made public right away.

The City immediately went to the U.S. Court of Appeals for the Ninth Circuit to get that appeals court to order a stay of the District Court’s ruling, which would prevent release of the video until all appeals were exhausted (in other words, for a long time). By the time the City filed its appeal, the video had been released. Still, though the video has been made public, the City has continued to press on the larger issue of whether the video should have been made public. The City is now arguing to the Ninth Circuit that in such cases in the future, there should be an automatic stay of any decision to release a video of this type.

AAN joined 26 other organizations on an amicus brief that was jointly drafted by the Reporters Committee for Freedom of the Press and the University of Virginia School of Law First Amendment Clinic. The brief argues against a mandatory stay and in favor of retaining the existing 4 part test for determining whether an unsealing order should be stayed.

For the record, that test states that a stay should be issued keeping documents under seal during pendency of appeal of a court order if:

  1. There is a likelihood that the party seeking stay would succeed on the merits on appeal;

  2. There is a possibility of irreparable injury to the parties requesting the stay if the stay is not issued;

  3. There is the possibility of substantial injury to others if the stay is not issued; and

  4. The public’s interest favors secrecy over disclosure.

We base this on the fact that a stay is an “equitable” order which should be granted based on the circumstances involved; it is not a matter of right. The 4 part test helps to balance the equities involved. This interest also dovetails with the interest in access to these records overall. The public has a well-established right to access judicial records that can only be overcome by a showing of “compelling reasons supported by factual findings.” In other words, the initial inquiry regarding unsealing is very fact-specific; so, too, should any decision whether to stay that inquiry, especially since courts are hesitant to tolerate even brief deprivations of the First Amendment rights involved.

The brief then focuses in on the First Amendment interest in transparency and accountability, which overwhelms any interest in keeping the videos confidential. Automatic stays would impede the judiciary’s role as a guardian of the free press and the press’ role as a guardian of the public interest. Even if the videos are incomplete in some way, the answer isn’t to withhold them but for the government to release them and provide context. Of more importance is the need for quick access to newsworthy information. Timely access to court documents makes reporting more accurate, fair and complete. “Delay has consequences; if a controversy rages one day, and the supporting evidence is not released for several years, the public is poorly served.”

Finally, in response to the City’s argument that releases of the videos was improper because of the potential effect on the health and safety of both the local community and the national as a whole, the brief argues that speculative fears do not justify sealing documents, especially when the videos had already been sealed for months before they were released in the first place – in fact, that is quite often the case: by the time there is a motion to “unseal”, the evidence has been sealed for months already.

The case has both general and specific impact on news media. In a purely general sense, if the City wants to press this issue when the case itself is long done, we shouldn’t let them get away with it. But, on a more fundamental level, a ruling in the city’s favor would certain mean an automatic delay anytime the press or public wanted access to video evidence of this type – a delay of months, if not years. That’s a terrible precedent to set that is akin to no access at all. Given that this is a case before the U.S. Court of Appeals for the Ninth Circuit, one could also envision other jurisdictions making the same argument around the country.