In re Application for Access to Video Exhibits

575 F.Supp.3d 101

IN RE: APPLICATION FOR ACCESS TO VIDEO EXHIBITS

Case No. 21-mc-90 (RC)

United States District Court, District of Columbia.

Signed December 6, 2021

Charles D. Tobin, Ballard Spahr LLP, Washington, DC, for Cable News Network, Inc., American Broadcasting Companies, Inc., Associated Press, Buzzfeed, Inc., CBS Broadcasting Inc., Dow Jones & Company, Inc., Wall Street Journal, E.W. Scripps Company, Gannett Co., Inc., Gray Media Group, Inc., Los Angeles Times Communications LLC, National Public Radio, Inc., Nbcuniversal Media, LLC, New York Times Company, Pro Publica, Inc., Tegna, Inc., WP Company LLC.

Natasha Taylor-Smith, Federal Community Defender Office, Philadelphia, PA, for Kyle Fitzsimons.

MEMORANDUM OPINION

GRANTING PETITIONER'S APPLICATIONS FOR ACCESS TO VIDEO AND AUDIO EXHIBITS

RUDOLPH CONTRERAS, United States District Judge

I. INTRODUCTION

Pending before the Court are two applications submitted on behalf of sixteen media organizations (the "Press Coalition") for access to the video and audio exhibits ("Exhibits") submitted during the pretrial detention proceedings in the criminal case United States v. Fitzsimons , No. 21-cr-158 (D.D.C.) ("Criminal Case"). Defendant Kyle Fitzsimons was among the hundreds of people who stormed the Capitol on January 6, 2021 to stop Congress from certifying the results of the 2020 presidential election. Following Fitzsimons's arrest and 10-count indictment, he was ordered detained pending trial and his subsequent motion to revoke the detention order and for pretrial release was denied. To support its request for pretrial detention and its opposition to revoke pretrial detention, the Government submitted three video recordings of Fitzsimons on January 6 and two video and audio recordings of Fitzsimons's conduct prior to, and after, January 6. The Government agrees that the video and audio exhibits can be released. See Gov't Resp. to Appl. Regarding Video Ex. Release ("Gov't Resp."), Criminal Case ECF No. 31; Gov't Resp. to Min. Order Regarding Suppl. Appl. for Access to Video & Audio Exhibits ("Gov't Suppl. Resp."), Criminal Case ECF No. 41. Defendant, however, objects to both applications, arguing that the risk of prejudice at trial is too great. See Def.’s Resp. to Appl. Regarding Video Exhibit Release ("Def.’s Resp.") at 3, Criminal Case ECF No. 32; Def.’s Resp. to Suppl. Appl. for Access to Video & Audio Exhibits ("Def.’s Suppl. Resp.") ¶ 5, ECF No. 42. For the reasons below, the Court grants the Press Coalition's application.

II. FACTUAL BACKGROUND¹

"Defendant Kyle Fitzsimons was among the hundreds of people who stormed the Capitol on January 6, 2021 to stop Congress from certifying the results of the 2020 presidential election." United States v. Fitzsimons , No. 21-cr-158, 2021 WL 4355411, at *1 (D.D.C. Sept. 24, 2021). "He was arrested at his home in Maine on February 4, 2021 and charged with a 10-count indictment on February 26, 2021." Id. In response to the Government's motion to detain Fitzsimons pending trial, Fitzsimons declined a pretrial detention hearing in Maine and was transported to the District of Columbia. See id. at *2. Following a pretrial detention hearing on April 6 and 7, 2021 before Magistrate Judge G. Michael Harvey of the U.S. District Court for the District of Columbia, Fitzsimons was ordered detained pending trial. See id. ; 4/6/21 Detention Hr'g Tr. ("4/6/21 Tr."), Criminal Case ECF No. 19; 4/7/21 Detention Hr'g Tr. ("4/7/21 Tr.") at 25:8–23, Criminal Case ECF No. 20.

Approximately two months after the April pretrial detention hearings, the Press Coalition filed a request for access to the Exhibits that the Government submitted to the court pursuant to Standing Order No. 21-28. See Appl. for Access to Video Exhibits ("Appl.") ¶¶ 4–6, ECF No. 1. "The government submitted three (3) videos" as exhibits at the two April hearings which "[n]either party sought a sealing order for ... upon their submission." Gov't Resp. at 2. The exhibits² included video from a body-worn camera worn by a Metropolitan Police Officer ("Exhibit 7a"),³ video surveillance from the Capitol Building ("Exhibit 7"), and a video and audio recording of a Town of Lebanon, Maine meeting that Fitzsimons called into the day after the riots to speak about his opinions of the event ("Exhibit 2").⁴ See Gov't Mem. in Supp. Pretrial Detention ("Gov't Mot.") at 3–4, Criminal Case ECF No. 7; Gov't Opp'n Def.’s Mot. to Revoke Detention Order ("Gov't Opp'n") at 3–4, Criminal Case ECF No. 35. Additionally, the Government submitted to the court an audio recording exhibit of "a voice mail that was left by Mr. Fitzsimons to a congressional office on December 20th, 2020." 4/6/21 Tr. at 21:12–16. These Exhibits were accompanied by several screenshots from the videos in the complaint and detailed descriptions of what the Exhibits depicted in the Government's brief. See Statement of Facts to Compl. at 3–7, Criminal Case ECF No. 1; Gov't Mot. at 1, 3–4, 7–8, 10.

On August 27, 2021, Fitzsimons filed a Motion to Revoke the Detention Order and for Pretrial Release, which the Government opposed. See generally Def.’s Mot. to Revoke Detention Order & for Pretrial Release ("Def.’s Mot."), Criminal Case ECF No. 34; Gov't Opp'n. Following a hearing before this Court on September 16, 2021, Fitzsimons's motion was denied. See Fitzsimons , 2021 WL 4355411, at *8 ; 9/16/21 Mot. Hr'g Tr. ("9/16/21 Tr."), ECF No. 45.

After the September hearing on Fitzsimons's motion to revoke pretrial detention, the Press Coalition filed a supplemental request for access to the Exhibits that included additional exhibits the Government submitted to this Court in support of its opposition brief. See Suppl. Appl. for Access to Video & Audio Exhibits ("Suppl. Appl.") ¶¶ 4–6, ECF No. 6. In addition to the same exhibits the Government submitted at the April pretrial detention hearings, the Government submitted an additional video exhibit at the September hearing of a second video from another body-worn camera worn by a Metropolitan Police Officer ("Exhibit 7b") and a series of recorded jail calls. See 9/16/21 Tr. at 8:21–22, 21:18–24:8. The Government also accompanied these Exhibits with video screenshots, and both parties provided detailed descriptions of the Exhibits in their briefs. See generally Gov't Opp'n; Def.’s Mot. Neither party sought a sealing order for any of the Exhibits upon their submission at the September hearing either. See Gov't Suppl. Resp. at 2.

All parties relied heavily on the Exhibits during each proceeding. See generally 4/7/21 Tr.; 9/16/21 Tr. In addition to being extensively discussed in briefs and before the court at all three hearings, the Government also "showed excerpts of those videos" and played the audio recordings.⁵ Reply Mem. Further Supp. Press Coalition's Appl. For Access to Video Exhibits ("Press Appl. Reply") at 2, ECF No. 4; see generally 4/6/21 Tr.; 4/7/21 Tr.; 9/16/21 Tr. Relying substantially on the Exhibits, the magistrate judge and this Court ordered Fitzsimons detained pending trial. See Order of Detention Pending Trial at 2–4, Criminal Case ECF No. 36; Fitzsimons , 2021 WL 4355411.

III. LEGAL STANDARDS

"The common-law right of public access to judicial records ‘is a fundamental element of the rule of law, important to maintaining the integrity and legitimacy of an independent Judicial Branch.’ "

In re Leopold to Unseal Certain Elec. Surveillance Applications & Orders , 964 F.3d 1121, 1127 (D.C. Cir. 2020) (quoting MetLife, Inc. v. Fin. Stability Oversight Council , 865 F.3d 661, 663 (D.C. Cir. 2017) ). "Release promotes the same instrumental goals underlying the common law right: ‘producing an informed and enlightened public opinion, ... promoting the search for truth, and assuring confidence in judicial remedies.’ " United States v. Munchel , No. 21-cr-118, 567 F.Supp.3d 9–16 (D.D.C. Oct. 8, 2021) (cleaned up) (quoting In re Leopold , 964 F.3d at 1127 ).

Courts must first establish whether the subject of an application is a "judicial record" to determine whether this important right is implicated. See Munchel , 567 F.Supp.3d at 14. "[W]hether something is a judicial record depends on the ‘role it plays in the adjudicatory process.’ " Id. (quoting In re Leopold , 964 F.3d at 1128 ). "[N]ot all documents filed with courts are judicial records ...." In re Leopold , 964 F.3d at 1128 (first alteration in original). Rather, "[d]ocuments and other materials filed in court ‘intended to influence the court’ are judicial records." United States v. Jackson , No. 21-mj-115, 2021 WL 1026127, at *4 (D.D.C. Mar. 17, 2021) (citation omitted) (quoting In re Leopold , 964 F.3d at 1128 ). "[E]very part of every brief filed to influence a judicial decision qualifies as a ‘judicial record.’ " USA v. James , 21-cr-28-12, slip op. at 1, ECF No. 360 (D.D.C. Aug. 23, 2021) (quoting League of Women Voters of U.S. v. Newby , 963 F.3d 130, 136 (D.C. Cir. 2020)).

There is a "strong presumption in favor of public access" when a document is a judicial record. In re Leopold , 964 F.3d at 1127 (quoting United States v. Hubbard , 650 F.2d 293, 317 (D.C. Cir. 1980) ). "[T]his presumption ‘may be outweighed by competing interests’ " by balancing the "public and private interests at stake." In re Application for Access to Certain Sealed Video Exhibits , 546 F.Supp.3d 1, 4 (D.D.C. 2021) [hereinafter In re Klein Exhibits ] (quoting MetLife , 865 F.3d at 665 ). District courts balance the competing interests by applying the "six-factor test crafted by the D.C. Circuit in United States v. Hubbard ." In re Klein Exhibits , 546 F.Supp.3d at 4. This test considers:

(1) the need for public access to the documents at issue;

(2) the extent of previous public access to the documents;

(3) the fact that someone has objected to disclosure, and the identity of that person;

(4) the strength of any property and privacy interests asserted;

(5) the possibility of prejudice to those opposing disclosure; and

(6) the purposes for which the

...