Judge’s error in sealing affidavits hardly harmless

Friday, August 12, 2005

Courts are frequently — and fairly — criticized for elevating form over substance. In many cases, however, the fairer criticism is that a court has failed to recognize that form can be substance.

One of those cases is Media General Operations v. Buchanan. In Buchanan, the 4th U.S. Circuit Court of Appeals acknowledged a federal magistrate judge in Virginia failed to follow proper procedures when she sealed affidavits submitted in support of terrorism-related search warrants. The court, however, found the errors to be harmless and denied the requests of The New York Times and The Tampa Tribune to unseal the affidavits.

In some ways, the court’s decision is not surprising. The court, after all, hardly can be expected to unseal affidavits and jeopardize ongoing terrorism investigations simply because proper procedures had not been followed. Because those procedures protect important substantive rights, however, the court should have gone out of its way to ensure their integrity in the future. Instead, the 4th Circuit shrugged its shoulders at the procedures, unmoved by pleas that they safeguard the public’s right of access to judicial proceedings.

Under federal law, affidavits submitted in support of a search warrant typically become part of an open court file after the warrant is served and returned. If the affidavit contains sensitive information, however, the government may ask the judge to seal the affidavit.

Because judicial records are presumed to be open, courts have developed procedures for sealing these affidavits. First, the judge must independently review the government’s justifications for secrecy. Second, the judge must consider alternatives to sealing. And third, the judge must issue specific findings and conclusions supporting the sealing.

In Buchanan, a prosecutor applied to Magistrate Judge Theresa Buchanan for search warrants in an ongoing investigation of Islamic charities and businesses believed to be connected to the Sept. 11, 2001, terrorist attacks. In support of the applications, the prosecutor submitted lengthy affidavits, which he asked Buchanan to seal.

Buchanan issued the warrants and ordered the affidavits sealed. She did not specify her reasons for sealing the affidavits, however, or indicate she had independently reviewed the government’s justifications for secrecy and considered alternatives to sealing.

About two months later, the newspapers asked Buchanan to unseal the affidavits. Buchanan denied the newspapers’ request on May 30, 2002, saying “it was clear and apparent from the affidavits that any disclosure of the information there would hamper an investigation.” Buchanan, however, did not issue a written opinion specifying her reasons for maintaining the sealing order or indicating she had considered alternatives to sealing.

The newspapers then brought an action asking the district court to, among other things, order Buchanan to unseal the affidavits. After the district court dismissed the case, the newspapers appealed to the 4th Circuit.

In rejecting the appeal, the 4th Circuit focused on Buchanan’s decision denying the newspapers’ request to unseal the affidavits rather than on her initial decision to seal them. While acknowledging Buchanan had not followed proper procedures when sealing the affidavits, the court held that her subsequent consideration of the issues satisfied those requirements, even though that consideration had not expressly included specific findings or the weighing of alternatives. In reaching this conclusion, the court diminished both the form and substance of the procedural protections Buchanan had ignored.

First, the court said specific findings and express consideration of alternatives are required only to provide appellate courts “sufficient information for meaningful appellate review.” Second, the court observed that a judge’s findings in appropriate circumstances also can be placed under seal. These facts, the court said, demonstrate the procedural requirements are “for the benefit of the court, not the public.” Therefore, as long as an appellate court can determine the reasons for sealing, it is not necessary that the reasons be set forth in writing.

The 4th Circuit’s analysis is flawed and troubling. The requirement that a judge set forth findings and conclusions does much more than facilitate appellate review. Initially, of course, it impresses upon the judge the seriousness that should accompany the sealing of a court record. It also requires the judge to reach and fully consider the issues, a consideration that, performed properly, might obviate the need for an appeal. Further, it provides the public a basis for understanding and evaluating the judge’s action. The requirement thus is hardly ministerial, as the 4th Circuit suggested. To the contrary, it protects public access to an open judiciary.

Apparently concerned about his colleagues’ reasoning, Judge M. Blane Michael wrote a concurring opinion emphasizing the importance of both the procedural requirements and the necessity they be fulfilled at the time of sealing. Michael, however, concluded Buchanan’s error was harmless because, in his opinion, she during the May 30 hearing offered sufficient reasons for upholding the sealing order.

In an era in which government increasingly seeks to use secret judicial proceedings as a weapon in the war on terror, it seems likely the decision in Buchanan will encourage judges to seal more search-warrant materials and offer fewer reasons for doing so. When that occurs, it will be clearer to everyone that the 4th Circuit’s decision was more about substance than it was about form.

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