In re Civil Beat Law Ctr. for the Pub. Interest

1

IN RE CIVIL BEAT LAW CENTER FOR THE PUBLIC INTEREST, Movant.

Civ. No. 23-00175 SOM-RT

United States District Court, D. Hawaii

May 17, 2023

ORDER GRANTING IN PART AND DENYING IN PART CIVIL BEAT'S MOTION TO UNSEAL THE GOVERNMENT'S DOWNWARD DEPARTURE MOTION

SUSAN OKI MOLLWAY, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION.

Civil Beat Law Center for the Public Interest (“Civil Beat”) moves for an order unsealing the Government's Motion for Downward Departure, filed in United States v. Cullen, Crim. No. 22-00013 SOM. Civil Beat argues that the public right of access guaranteed by the First Amendment and by common law requires the unsealing all or most of the downward departure motion. The Government disagrees with this premise and contends that even if a presumption of openness were applicable here, the need to protect the safety of the defendant and the integrity of ongoing investigations must override any interest in public disclosure.

Regardless of whether a presumption of openness applies here, parts of the Government's downward departure motion are appropriate for public disclosure, while other parts should be redacted under any standard. The court grants in part and denies in part Civil Beat's motion.

II. BACKGROUND FACTS.

A. The Underlying Criminal Case.

Ty Cullen, a former elected state legislator, was charged in 2022 with one count of Honest Services Wire Fraud, in violation of 18 U.S.C. §§ 1343 and 1346. See USA v. Cullen, Crim. No. 22-00013 SOM, ECF No. 1.^[1] Cullen entered a guilty plea pursuant to a plea agreement.

Cullen assisted federal officials in ongoing investigations of others. The parties agreed and this court found at the time of sentencing that Cullen's assistance had been substantial. The Government moved for a sentence below the advisory sentencing guideline range pursuant to United States Sentencing Guideline (USSG) § 5K1.1, urging the court to impose a prison term between 24 and 30 months, rather than a term within the guideline range of 37 to 47 months. See USA v. Cullen, Crim. No. 22-00013 SOM, ECF No. 23 (stating in Cullen's publicly available sentencing memorandum, “The government has filed a Motion for Downward Departure based on Cullen's substantial assistance . . . and the government is recommending that the court depart downward 4 levels to an offense level of 17”).

Citing the Government's recommendation, this court sentenced Cullen to 24 months in prison. See id. at ECF No. 27.

B. Civil Beat's Motion to Unseal.

On April 7, 2023, Civil Beat moved for an order unsealing the Government's Motion for Downward Departure filed a few weeks earlier in Cullen's criminal case.^[2] See ECF No. 1. Civil Beat argues that the First Amendment and common law give rise to a presumption of openness applicable in this case and that, pursuant to that presumption and the facts of this case, the court should unseal the motion completely or, at a minimum, with redactions. See id. Civil Beat concedes that, even if a presumption of openness applies here, compelling interests may override it. See id. at PagelD # 8-9. However, Civil Beat argues that the downward departure motion should not have been completely sealed at the time of filing given the absence of any Government statement justifying such sealing, and that, even if the motion implicates compelling interests, a complete sealing of the document is still likely improper. See ECF No. 1, PageID # 14-15. Civil Beat suggests several alternatives to complete sealing, including redactions, limited release to a select group of persons or entities, and/or delayed release once the circumstances giving rise to any compelling interest have subsided. See ECF No. 1, PageID # 14-15.

In its response, the Government has signaled some openness to unsealing, but only with heavy redactions. See ECF No. 16. The Government argues that, even if a public right to access applies to USSG § 5K1.1 motions, “the facts of this case rebut any resulting presumption of openness.” See ECF No. 16, PageID # 96 (quoting United States v. Doe, 870 F.3d 991, 998 (9^th Cir. 2017)).

Along with its response, the Government submitted a declaration and a copy of its § 5K1.1 motion with proposed redactions. See ECF No. 17. While the response, which included some argument, was publicly viewable, the declaration and the proposed redactions were submitted under seal. This court promptly instructed the Government to submit an unsealed version of the proposed redactions so that Civil Beat could see what the Government was proposing to disclose. The court further instructed the Government to provide unsealed explanations for its proposed redactions that did not reveal the substance of the material the Government was arguing needed to remain sealed. The Government then filed an amended response along with its proposed redactions and explanations, which were publicly accessible. See ECF Nos. 19, 19-1, 19-2. The gist of the Government's position was that, no matter what standard applies, some information must remain secret to safeguard ongoing investigations and to protect the defendant. See ECF Nos. 19, PageID # 114-17, and ECF Nos. 19-1, 19-2.

In a reply memorandum, Civil Beat suggested that the Government has been too heavy-handed in its redactions. See ECF No. 20. According to Civil Beat, there is no basis for redacting Cullen's name from the motion or so broadly concealing the description of his assistance and cooperation. See ECF No. 20, PageID # 140-46.^[3]

C. The Unintended Disclosure.

Unfortunately, in submitting its amended response and proposed redactions for public viewing, the Government failed to lock in its redactions. The redactions were electronic, and the Government's mishandling of the redactions meant that the electronically filed redacted downward departure motion was subject to a process by which persons with technical know-how could electronically undo the redactions. This actually occurred.

The technical process and the consequence of the undoing of the redactions was described by the online news publication that discovered the Government's error. That news organization is called Civil Beat, but, according to the movant in this action, Civil Beat's Law Center, the news organization operates independently of the Law Center. (The court's understanding is that the Law Center and the online news publication were created by and with funding from the same individual and so are related at least in terms of their origins. To avoid confusion relating to names, this court clarifies here that in referring to “Civil Beat” in this order, the court is referring to the movant in this action, not to the online news publication.) The Government has replaced the document with the reversible redactions with a document not subject to the same reversible process.

The online news publication published an article about the Government's error and reported that, after meeting with federal prosecutors, the publication has opted not to publish the full document in its possession. However, the publication did include in its article the text of most of Paragraph 7 of the downward departure motion.

D. Civil Beat's Present Argument Relating to Public Disclosure.

In a supplemental memorandum, Civil Beat argues that the online news organization's possession of the unredacted downward departure motion should lead this court to deem that motion to be subject to unsealing because it is now in public hands. See ECF No. 22.

III. LEGAL STANDARD.

Foundational to our legal system is the principle that “[p]ublic scrutiny of a criminal trial enhances the quality and safeguards the integrity of the factfinding process[.]” Globe Newspaper Co. v. Superior Ct. for Norfolk Cnty., 457 U.S. 596, 606 (1982). Both the United States Constitution and the common law give effect to this principle by favoring transparency in regards to most judicial proceedings and records. See Doe, 870

F.3d at 996-97. This takes the form of a presumption of openness that courts must adopt as they consider issues of disclosure and nondisclosure of judicial records. See id. Those who seek to overcome this presumption and to close proceedings or seal records face a difficult climb, the steepness of which depends on whether the presumption derives from the Constitution or the common law. See United States v. Bus. of Custer Battlefield Museum & Store Located at Interstate 90, Exit 514, S. of Billings, Mont., 658 F.3d 1188, 1197 (9th Cir. 2011) (“The First Amendment is generally understood to provide a stronger right of access than the common law.”).

Civil Beat asserts that the presumption applies to the Government's downward departure motion. If the presumption does apply, the Government may seek to overcome it, which may raise the question of whether complete nondisclosure is justified or whether a narrower alternative will suffice. This court does not decide here which, if any, presumption applies, or what, if any, strength any applicable presumption carries here. No matter what standard applies, this court concludes that, while total sealing is not warranted, redactions are justified. The court nevertheless includes a discussion in this order of the underpinnings of what Civil Beat asserts is an applicable presumption, as that may be helpful to any discussion of the issues before this court.

A. The First Amendment Right of Public Access.

While not expressly stated in the text, the First Amendment gives rise to a “presumed right of access to court proceedings and documents.” See Oregonian Pub. Co v. U.S. Dist. Ct. for Dist. of Or., 920 F.2d 1462, 1465 (9th Cir. 1990). This presumed right applies to many, but not all, proceedings and documents. To determine whether this constitutional right applies to a particular...