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“In closed investigations that were not recognized by the government, public access to materials has historically been limited and the petitioner gives no reason to believe that the essential interests advocating such access would not be present in this case “wrote the former Howell attorney for the Senate Judiciary Committee, who was appointed to the bank by President Barack Obama.
Howell said the publication of materials – which she has not confirmed to exist – could harm both “significant privacy interests” and “government investigative interests”. She kept part of her opinion under wraps and denied the Times’ request for access to a sealed Justice Department statement on the matter.
Katie Townsend, the reporters’ committee on freedom of the press who filed the unsealed petition on behalf of the Times, said no decision had been made as to whether to appeal.
“In a situation like this, where it was publicly reported that a search warrant in connection with a criminal investigation into stock deals was carried out by a seated US Senator, the public interest in access to the warrant materials could not have been higher. And that’s true whether or not the investigation ended without charge, ”Townsend said. “We are very disappointed with the court’s decision and are looking into the next steps.”
While Howell insisted that the Justice Department never officially approved the investigation, Townsend noted that Burr had publicly acknowledged the investigation. In fact, he issued a statement in January of this year welcoming the probe’s closure.
Some advocates of better access to court records said they were concerned about Howell’s ruling because it threatened to obscure information about officials’ behavior and because it seemed to ignore the fact that many federal courts automatically unseal the majority of their search warrants.
“It’s offensive,” said Seamus Hughes, a George Washington University researcher and renowned expert in searching unsealed court records for missed messages. “It will radically restrict public access to court records. … Search warrants provide a level of sunlight that is important for a democracy. “
Hughes said any privacy concerns contained in personal records are significantly lower for a U.S. Senator. “The privacy bar should be lower for an officer, ”he said.
Hughes also noted that Howell apparently indicated that secrecy is or should be the default for search warrant records in non-indictable cases, but it is not in many places.
“Search warrants are routinely unsealed for reasons unrelated to whether or not criminal proceedings are initiated,” he said. “The western district of Virginia automatically unseals the vast majority of search warrants after a certain period of time. Connecticut does exactly the same thing. … edit something [portions.] Most of them don’t. … To say that it is unknown is a stretch in my opinion. “
A Burr attorney, Alice Fisher, did not immediately respond to an email Wednesday night for comment on the verdict.
Technically, Howell’s decision does not set a precedent. In practice, however, it is binding – at least for now – on similar cases in Washington, since requests to unseal them would likely be directed to her while she is the chief judge.
Howell’s decision surprised some court observers as she was generally a strong advocate for better disclosure of court records. At the request of a reporter, they initiated a major overhaul of the way the court documents and manages various recordsFacilitated disclosure of some information about various internet and phone record requests. And sometimes she has insisted on public disclosure of court judgments even when prosecutors have argued that they should be kept completely under wraps.
Disclosure: Gerstein is a member of the Steering Committee of the Reporters’ Committee on Freedom of the Press.