In the Matter of the Application of Jason Leopold to Unseal Certain Electronic Surveillance Applications and Orders

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 25, 2019 Decided July 7, 2020

No. 18-5276

IN RE: IN THE MATTER OF THE APPLICATION OF JASON

LEOPOLD TO UNSEAL CERTAIN ELECTRONIC SURVEILLANCE

APPLICATIONS AND ORDERS,

JASON LEOPOLD AND REPORTERS COMMITTEE FOR FREEDOM

OF THE PRESS,

APPELLANTS

v.

UNITED STATES OF AMERICA,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:13-mc-00712)

Katie Townsend argued the cause for appellants. With her

on the briefs was Jeffrey Light.

Christopher T. Bavitz was on the brief for amici curiae

Former United States Magistrate Judges in support of petitioners

and reversal.

Laura R. Handman, Kurt A. Wimmer, Bruce W. Sanford,

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Mark I. Bailen, and David McCraw were on the brief for amici

curiae Media Organizations in support of appellants.

Charles S. Sims was on the brief for amici curiae First and

Fourth Amendment Scholars in support of petitioners-appellants

and in support of reversal.

Aaron D. Mackey was on the brief for amici curiae

Electronic Frontier Foundation and Riana Pfefferkorn in support

of petitioners-appellants.

Peter S. Smith, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Jessie K. Liu, U.S.

Attorney, and Elizabeth Trosman, Chrisellen Kolb, and Pamela

S. Satterfield, Assistant U.S. Attorneys.

Before: TATEL and GARLAND, Circuit Judges, and

SILBERMAN, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Journalist Jason Leopold and the

Reporters Committee for Freedom of the Press applied to the

district court to unseal certain electronic surveillance orders and

related filings in closed investigations. The district court

Clerk’s Office, the U.S. Attorney’s Office, and the applicants

were able to reach accommodations regarding some of the

applicants’ requests. Although the district court determined that

the documents are judicial records subject to the common-law

right of public access, it denied the remaining requests due to the

administrative burden of unsealing.

The public’s right of access to judicial records is a

fundamental element of the rule of law. Administrative burden

is relevant to how and when a judicial record may be unsealed,

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but not to whether it may be released at all. We therefore

reverse the judgment and remand the case for further

proceedings.

I

A

This case involves three kinds of court orders authorizing

electronic surveillance: judicial warrants issued pursuant to the

Stored Communications Act (SCA), court orders issued pursuant

to § 2703(d) of that Act, and court orders issued pursuant to the

Pen Register Act.

SCA warrants can be used to compel “the disclosure by a

provider of electronic communication service of the contents of

a wire or electronic communication[] that is in electronic

storage” for 180 days or less. 18 U.S.C. § 2703(a). SCA

warrants can also be used to compel the disclosure by a provider

of remote computing service of “the contents of [specified] wire

or electronic communication[s]” without notice to the

subscriber, or to compel “a provider of electronic

communication service or remote computing service to disclose

a record or other information pertaining to” a subscriber. Id.

§ 2703(b)(1)(A), (c)(1).1 In federal court, the government may

obtain an SCA warrant “using the procedures described in the

Federal Rules of Criminal Procedure.” Id. § 2703(a), (b)(1)(A),

(c)(1)(A). A law enforcement officer or attorney must submit an

affidavit or other information to a magistrate judge, and the

1

The intricacies of the SCA’s coverage are not relevant here. For

a helpful description, see Orin S. Kerr, A User’s Guide to the Stored

Communications Act, and a Legislator’s Guide to Amending It, 72

GEO. WASH. L. REV. 1208, 1213-20 (2004).

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judge must issue the warrant if there is probable cause. FED. R.

CRIM. P. 41(d).

SCA § 2703(d) orders can be used to access, with notice to

the subscriber, the contents of specified wire or electronic

communications held by a remote computing service or, without

notice, subscriber records held by an electronic communication

or remote computing service. 18 U.S.C. § 2703(b)(1)(B)(ii),

(c)(1)(B), (c)(3). Under the statute, the government can obtain

a § 2703(d) order from a court by offering “specific and

articulable facts showing that there are reasonable grounds to

believe” the records or information sought “are relevant and

material to an ongoing criminal investigation.” Id. § 2703(d).2

Pen register orders authorize law enforcement to install pen

registers and trap-and-trace devices. Pen registers capture

outgoing metadata; trap-and-trace devices capture incoming

metadata. See 18 U.S.C. § 3127(3), (4). Collectively, they tell

the government such things as what number a person dialed,

what address a person was emailed from, and when someone

sent a text. They do not capture the contents of those messages.

2

The Supreme Court has held, under the Fourth Amendment, that

a § 2703(d) order “is not a permissible mechanism for accessing”

historical cell-site location information. Carpenter v. United States,

138 S. Ct. 2206, 2221 (2018). Before compelling a wireless carrier to

turn over that information, the government generally must “get a

warrant” supported by probable cause. Id. The Sixth Circuit has

similarly held that the Fourth Amendment bars the government from

compelling a commercial internet service provider “to turn over the

contents of a subscriber’s emails without first obtaining a warrant

based on probable cause.” United States v. Warshak, 631 F.3d 266,

288 (6th Cir. 2010); see also H.R. REP. NO. 114-528, at 9 (2016)

(noting that, soon after the Warshak decision, the Department of

Justice began using warrants for email in all criminal cases, and that

this “practice became Department policy in 2013”).

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To obtain a pen register order, a government attorney must

certify “that the information likely to be obtained is relevant to

an ongoing criminal investigation.” Id. § 3122(b)(2). A court

must issue the order if it finds that the appropriate certification

has been made. Id. § 3123(a)(1).

SCA warrants, SCA § 2703(d) orders, and pen register

orders allow law enforcement to collect different kinds of

electronic information. But the mechanics of their authorization

are similar: the government submits an application, and a court

issues an order granting or denying the application. Thus, all

three generate similar records that are filed in the court: the

application (and supporting documents) filed by the government,

the order issued by the court, and the court clerk’s docket

entries. Heretofore, the United States District Court for the

District of Columbia has routinely maintained all of those

materials under seal. In re Application of Leopold (Leopold II),

327 F. Supp. 3d 1, 5 (D.D.C. 2018).

B

In July 2013, Jason Leopold, an investigative reporter now

with BuzzFeed News, applied to the district court for an order

unsealing some of those materials. In August 2016, the

Reporters Committee for Freedom of the Press successfully

moved to intervene. Retrospectively -- that is, with respect to

past filings -- the Reporters Committee sought to unseal

applications, supporting documents, and court orders for SCA

warrants, SCA § 2703(d) orders, and pen register orders in

closed investigations. Reporters Committee Appl. 1 (J.A. 34).

Prospectively -- that is, with respect to future filings -- the

Reporters Committee sought access to the court (typically,

magistrate court) docket sheets for those materials, as well as the

eventual unsealing of the underlying materials themselves. Id.

at 1-2 (J.A. 34-35). The applicants argued that “[t]he press and

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the public have a particularly powerful interest in obtaining

access to court documents concerning judicial authorization for

the use of [those] law enforcement tools . . . . [J]udicial

oversight and, in turn, public oversight of the judicial process,

is necessary to guard against government overreach.” Id. at 2

(J.A. 35).

The applicants and the U.S. Attorney’s Office, “with

guidance from [the district] Court, engaged in discussions on

how properly to vindicate, in light of substantial law

enforcement investigative and individual privacy concerns, the

public’s interest in transparency of judicial records concerning

the government’s use of statutorily authorized investigative

tools.” Leopold II, 327 F. Supp. 3d at 6. The government

acknowledged “that applications and orders relating to

electronic surveillance methods need not necessarily be

permanently sealed,” and it released some information. In re

Application of Leopold (Leopold I), 300 F. Supp. 3d 61, 68, 71

(D.D.C. 2018) (quoting Gov’t Resp. 2). The applicants

“clarified that the petition sought no personally identifying

information concerning investigative targets,” id. at 69, and

narrowed their requests. From the record, this case appears to

be marked by remarkable good faith and accommodation.

Guided by the district court, the applicants, the U.S. Attorney’s

Office, and the district court Clerk’s Office took meaningful

steps to improve transparency in this district. We applaud the

district court for its effective work in moving the process

forward.

With respect to past filings, the applicants ultimately

received: (1) information about the total number of electronic

surveillance applications and more specifics about pen register

orders, including basic docket information, for a nine-year

period; (2) certain details that the government “extracted” from

the files of 10% of pen register matters; and (3) the unsealing

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(with redactions) of four “sample” pen register applications and

orders. Id. at 100.

With respect to future filings, the Clerk’s Office and the

U.S. Attorney’s Office entered into a Memorandum of

Understanding. Pursuant to the memorandum, the latter can

now electronically file pen register and SCA § 2703(d)

applications, which are docketed in a standardized format. Id.

at 103-04 & n.37. The dockets are not made available to the

public. Instead, the Clerk’s Office generates semiannual reports

listing docket numbers, case captions, and certain other docket

information on a six-month delay. Id. at 104 n.36.

Despite this admirable cooperation, the parties eventually

reached an impasse. Regarding past filings, the applicants still

sought basic docket information for SCA § 2703(d) matters and

specified details to be extracted from 100% of pen register

matters filed by the U.S. Attorney’s Office since 2008 -- both

involving closed investigations only. Proposed Order 4-5 (J.A.

848-49). The applicants no longer sought any of the actual

documents or any retrospective relief whatsoever with respect

to SCA warrants. Regarding future filings, they requested real-

time access to basic docket information, as well as the

presumptive unsealing at the close of investigations of

applications (and supporting documents), orders, and docket

entries for SCA warrants, SCA § 2703(d) orders, and pen

register orders. Id. at 2-3, 5-8 (J.A. 846-47, 849-52); see

Leopold Br. 3.

The district court denied additional relief and later denied

reconsideration. See Leopold I, 300 F. Supp. 3d 61; Leopold II,

327 F. Supp. 3d 1. The court began by rejecting the applicants’

contention that the First Amendment requires public access to

the requested materials, holding that the applicants had failed to

show that there was a “tradition of openness” with respect to

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those materials, as required by the case law. Leopold I, 300 F.

Supp. 3d at 91 (citing United States v. Brice, 649 F.3d 793, 795

(D.C. Cir. 2011)).

The district court then went on to address the applicants’

contention that they have a common-law right of access to the

same materials. After concluding that each of the three

categories of documents at issue are “judicial records,” the court

applied this circuit’s six-factor Hubbard balancing test for

unsealing judicial records. Id. at 92-97 (citing United States v.

Hubbard, 650 F.2d 293 (D.C. Cir. 1980)); see infra Part II.C

(describing the Hubbard factors). The court found that the

Hubbard factors weighed in favor of access. Leopold II, 327

F. Supp. 3d at 22. Nonetheless, it held that the “significant

administrative burden” of unsealing justified denial of any

access at all to past filings, and to anything more than “limited

information” contained in future filings. Id. at 5, 21; see id. at

7, 22; Leopold I, 300 F. Supp. 3d at 97. The court further held

that the applicants had forfeited their request for real-time access

to docket information. Leopold I, 300 F. Supp. 3d at 106.

The applicants now appeal the denial of their requests for

additional relief. In this court, they acknowledge that they

forfeited their request for real-time docket information,

Recording of Oral Arg. at 9:15-9:23, and emphasize that their

appeal only involves materials from closed investigations, id. at

9:42-9:54. In brief, the applicants still seek three things:

(1) retrospectively, basic docket information for all SCA

§ 2703(d) matters filed from 2008 to the present; (2)

retrospectively, specified details to be extracted from 100% of

pen register matters filed from 2008 to the present; and (3)

prospectively, the presumptive unsealing at the close of

investigations of applications (and supporting documents),

orders, and docket entries for SCA warrants, SCA § 2703(d)

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orders, and pen register orders. See id. at 9:42-9:54, 9:15-9:23;

Proposed Order 2-3, 5-8 (J.A. 846-47, 849-52).

The applicants appeal the district court’s decision on both

First Amendment and common-law grounds. We reach only the

latter. The applicants indicated at oral argument that they

believe they can receive all of the relief they request under the

common law. Recording of Oral Arg. at 22:05-22:20. In light

of the result we reach with respect to the common law, we avoid

unnecessarily passing on a constitutional question of first

impression in this circuit. This approach accords with the

“fundamental and longstanding principle of judicial restraint,”

which “requires that courts avoid reaching constitutional

questions in advance of the necessity of deciding them.”

Stillman v. CIA, 319 F.3d 546, 548 (D.C. Cir. 2003) (quoting

Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439,

445 (1988)).

II

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.” MetLife, Inc. v. Fin. Stability Oversight

Council, 865 F.3d 661, 663 (D.C. Cir. 2017). At bottom, it

reflects the antipathy of a democratic country to the notion of

“secret law,” inaccessible to those who are governed by that law.

The right “antedates the Constitution,” id. at 674 (quoting

United States v. El-Sayegh, 131 F.3d 158, 161 (D.C. Cir. 1997)),

and has been recognized by this court since at least 1894, see Ex

parte Drawbaugh, 2 App. D.C. 404, 407-08 (1894).

In 1978, the Supreme Court held it was “clear that the

courts of this country recognize a general right to inspect and

copy public records and documents, including judicial records

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and documents.” Nixon v. Warner Commc’ns, Inc., 435 U.S.

589, 597 (1978) (footnote omitted). In 1980, in United States v.

Hubbard, our court likewise noted “this country’s common law

tradition of public access to records of a judicial proceeding,”

stressing that “[a]ccess to records serves the important functions

of ensuring the integrity of judicial proceedings in particular and

of the law enforcement process more generally.” 650 F.2d at

314-15. “Like the First Amendment,” we explained, “the right

of inspection serves to produce an informed and enlightened

public opinion. Like the public trial guarantee of the Sixth

Amendment, the right serves to safeguard against any attempt to

employ our courts as instruments of persecution, to promote the

search for truth, and to assure confidence in judicial remedies.”

Id. at 315 n.79 (internal quotation marks and alteration

omitted).3

In light of these considerations, there is a “strong

presumption in favor of public access to judicial proceedings,”

including judicial records. Id. at 317; see MetLife, 865 F.3d at

663. In some cases, that presumption may be outweighed by

competing interests. In Hubbard, we identified such interests,

650 F.2d at 317-22, and subsequent cases crafted them into a

six-factor test, see infra Part II.C & note 9. The “Hubbard test

has consistently served as our lodestar” for evaluating motions

to seal or unseal judicial records “because it ensures that we

fully account for the various public and private interests at

stake.” MetLife, 865 F.3d at 666 (collecting cases). And

Hubbard-like balancing tests are the standard for ruling on

3

See also Cowley v. Pulsifer, 137 Mass. 392, 394 (1884)

(Holmes, J.) (“[I]t is of the highest moment that those who administer

justice should always act under the sense of public responsibility, and

that every citizen should be able to satisfy himself with his own eyes

as to the mode in which a public duty is performed.”).

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motions to seal or unseal judicial records in every circuit. Id. at

671 & n.13 (collecting cases).

A

The district court held that all of the materials at issue here

are judicial records, Leopold I, 300 F. Supp. 3d at 92, a ruling

the government does not contest. As we have previously

explained, “not all documents filed with courts are judicial

records.” SEC v. Am. Int’l Grp., 712 F.3d 1, 3 (D.C. Cir. 2013).

Rather, “whether something is a judicial record depends on ‘the

role it plays in the adjudicatory process.’” Id. (quoting

El-Sayegh, 131 F.3d at 163); see League of Women Voters v.

Newby, No. 19-7027, slip op. at 7 (D.C. Cir. June 26, 2020). We

agree with the district court that the materials the applicants seek

are judicial records.

As set forth in Part I, the requested materials include three

kinds of court orders -- SCA warrants, SCA § 2703(d) orders,

and pen register orders, which we collectively refer to as

“electronic surveillance orders” -- as well as applications for

such orders, their supporting documents, and associated court

dockets.4

There is no doubt that the court orders themselves are

judicial records. Court decisions are the “quintessential business

of the public’s institutions.” EEOC v. Nat’l Children’s Ctr.,

Inc., 98 F.3d 1406, 1409 (D.C. Cir.1996). And the issuance of

public opinions is core “to the transparency of the court’s

decisionmaking process.” MetLife, 865 F.3d at 668. Indeed,

since at least the time of Edward III, judicial decisions have

been held open for public inspection. 3 EDWARD COKE,

4

We do not consider other kinds of electronic surveillance orders

or their related filings.

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REPORTS, at iii-iv (London, E. & R. Nutt & R. Gosling 1738)

(1602).5 It is not surprising, therefore, that the only other circuit

to have specifically considered SCA § 2703(d) orders has held

that they are judicial records. In re Application of United States

(Appelbaum), 707 F.3d 283, 290-91 (4th Cir. 2013).

The same is true of applications for such orders and their

supporting documents (e.g., accompanying affidavits). In

MetLife, we held that appellate briefs and appendices are judicial

records because they are “intended to influence” the court and

the court “ma[kes] decisions about them.” 865 F.3d at 668

(internal quotation marks omitted); see League of Women

Voters, slip op. at 8. Applications for electronic surveillance

orders and their supporting documents are likewise intended to

influence the court, and the relevant orders are certainly

“decisions about them.” Our sister circuits have held that the

closest (although not perfect) analogues -- search warrant

applications and supporting affidavits -- are judicial records.6

5

See 3 COKE, supra, at iii-iv (“These records . . . are faithfully

and safely kept . . . . And yet not so kept but that any subject may for

his necessary use and benefit have access thereunto, which was the

ancient law of England, and so is declared by an Act of Parliament in

[1372].” (capitalization altered)).

6

See, e.g., United States v. Sealed Search Warrants, 868 F.3d

385, 390 (5th Cir. 2017) (holding “that the qualified common law

right of access can extend to an individual seeking to access pre-

indictment search warrant materials,” including, in that case,

supporting affidavits); United States v. Bus. of the Custer Battlefield

Museum & Store, 658 F.3d 1188, 1193 (9th Cir. 2011) (holding that

“[a]ffidavits in support of seizure or search warrants . . . clearly fall

within the definition of judicial documents” (internal quotation marks

omitted)); In re Application of Newsday, Inc., 895 F.2d 74, 79 (2d Cir.

1990) (recognizing that a search warrant application is “a public

document subject to a common law right of access”); Balt. Sun Co. v.

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And the Fourth Circuit has held that Ҥ 2703(d) motions are

‘judicial records’ because they [are] filed with the objective of

obtaining judicial action or relief pertaining to § 2703(d)

orders.” Appelbaum, 707 F.3d at 291.

We reach the same conclusion regarding court dockets.

Although judges do not always rely upon dockets themselves in

reaching decisions, dockets are nonetheless judicial records

because they are “created and kept [by courts] for the purpose of

memorializing or recording . . . matter[s] of legal significance.”

Wash. Legal Found. v. U.S. Sentencing Comm’n, 89 F.3d 897,

905 (D.C. Cir. 1996). In a docket, a judge or clerk “briefly notes

all the proceedings and filings in a court case.” Docket,

BLACK’S LAW DICTIONARY (11th ed. 2019). A court case is by

definition a “matter of legal significance,” and the docket

memorializes it. Moreover, dockets provide a “kind of index to

judicial proceedings and documents,” facilitating public access

to the underlying documents. Hartford Courant Co. v.

Pellegrino, 380 F.3d 83, 93 (2d Cir. 2004). It would make little

sense to provide public access to court documents but not to the

indices that record them and thus make them accessible.

Accordingly, we agree with the district court that all of the

requested materials are judicial records.

Goetz, 886 F.2d 60, 64 (4th Cir. 1989) (holding that “affidavits for

search warrants are judicial records”); cf. Cowles Publ’g Co. v.

Murphy, 637 P.2d 966, 969 (Wash. 1981) (“Access to search warrants

and affidavits of probable cause can reveal how the judicial process is

conducted. The procedures employed by the prosecutor and law

enforcement can be evaluated. Access may also disclose whether the

judge is acting as a neutral magistrate.”).

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B

Having found that the requested materials are judicial

records, the district court next concluded that a “common law

presumption of access thus attaches . . . , which the government

can rebut only by showing competing interests that compel a

conclusion that justice requires maintaining a seal. The

Hubbard factors govern this analysis.” Leopold I, 300 F. Supp.

3d at 92 (internal quotation marks, alterations, and citations

omitted). The government does not dispute this conclusion.

But the common-law inquiry must yield “when Congress

has spoken directly to the issue at hand.” MetLife, 865 F.3d at

669 (quoting Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918,

937 (D.C. Cir. 2003)). The relevant statute is the Electronic

Communications Privacy Act of 1986 (ECPA), Pub. L. No. 99-

508, 100 Stat. 1848. The Stored Communications Act is Title

II of the ECPA. The Pen Register Act is Title III. We draw

different conclusions for SCA warrants and SCA § 2703(d)

orders on the one hand, and pen register orders on the other.

The Stored Communications Act authorizes courts to issue

SCA warrants and § 2703(d) orders. See 18 U.S.C. § 2703. As

the government acknowledges, the SCA “does not require the

sealing of warrants or § 2703(d) orders and applications in

support thereof.” Gov’t Br. 11. Nor does it mention sealing at

all. It does authorize the government to seek a separate order

prohibiting the service provider from notifying anyone about the

electronic surveillance order, “for such period as the court

deems appropriate” to protect specified law enforcement

interests in connection with ongoing investigations. 18 U.S.C.

§ 2705(b). But because, as the government agrees, the SCA

contains no “default sealing or nondisclosure provisions,” Gov’t

Br. 28, “Congress has [not] spoken directly to the issue at hand,”

and the common-law rule applies, MetLife, 865 F.3d at 669

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(quoting Ctr. for Nat’l Sec. Studies, 331 F.3d at 937). See

Appelbaum, 707 F.3d at 291 (holding that, because Ҥ 2703(d)

orders are ‘judicial records,’ the common law presumption of

access attaches to these documents”).

The Pen Register Act, however, is different. It provides that

a pen register order “shall direct that . . . the order be sealed until

otherwise ordered by the court.” 18 U.S.C. § 3123(d)(1). By

expressly directing sealing until the court orders otherwise,

Congress has displaced the usual presumption in favor of access.

Nonetheless, the Act does not require that pen register orders be

sealed, and by authorizing the court to order otherwise,

Congress plainly contemplated that unsealing may occur.

Moreover, because Congress did not specify a standard for

making the unsealing determination, it did not displace the

common-law standard enshrined in the Hubbard balancing test.

A contrary conclusion would contradict “a fundamental norm of

our judicial system: that judges’ decisions and their rationales

must be available to the public. We would not expect Congress

to upset such a norm without saying so.” MetLife, 865 F.3d at

675 (citation omitted).7

7

As this court has previously noted, the Pen Register Act’s

sealing provision refers only to pen register orders; it says nothing

about applications, supporting documents, or dockets. See Labow v.

DOJ, 831 F.3d 523, 528 (D.C. Cir. 2016) (citing 18 U.S.C.

§ 3123(d)(1)). In Labow, we held that the Pen Register Act was a

qualifying statute under Exemption 3 of the Freedom of Information

Act because it “specifically exempted” such orders from disclosure, id.

at 527 (quoting 5 U.S.C. § 552(b)(3)(A)), but we found it unnecessary

to address whether the Pen Register Act “authorizes withholding

documents other than a pen register order,” id. at 528. Similarly, we

need not decide today whether the Act displaces the usual presumption

in favor of access to pen register materials other than the orders

themselves, because we think it unlikely that -- even with different

presumptions -- the district court will find that the Hubbard test yields

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A useful comparison is to Federal Rule of Criminal

Procedure 6(e)(6), which provides that “[r]ecords, orders, and

subpoenas relating to grand-jury proceedings must be kept under

seal to the extent and as long as necessary to prevent the

unauthorized disclosure of a matter occurring before a grand

jury.” Unlike the Stored Communications Act, the Rule

expressly directs secrecy as the default position, and thus

displaces the common-law right of access. See In re Motions of

Dow Jones & Co., 142 F.3d 496, 504 (D.C. Cir. 1998). And

unlike the Pen Register Act, Rule 6(e)(6) also specifies a

standard for sealing -- “as long as necessary to prevent the

unauthorized disclosure of a matter occurring before the grand

jury.” That standard is different from the interests balanced in

the Hubbard test, and hence displaces that test as well.8

In sum, with respect to SCA materials, we conclude that

Congress displaced neither the common-law presumption of

access nor the Hubbard test for making unsealing decisions.

With respect to pen register orders, we conclude that Congress

did displace the presumption, but did not displace the Hubbard

a different result for pen register orders than for their supporting

materials.

8

Another comparison is to the Wiretap Act, which as amended

is contained in Title I of the ECPA. The Wiretap Act states:

“Applications made and orders granted under this chapter shall be

sealed by the judge. . . . Such applications and orders shall be

disclosed only upon a showing of good cause before a judge of

competent jurisdiction . . . .” 18 U.S.C. § 2518(8)(b) (emphases

added). Although we do not address wiretap orders in this opinion, we

note that the Second Circuit has held that this provision creates a

“categorical presumption against disclosure.” In re Application of

N.Y. Times Co., 577 F.3d 401, 407 n.3 (2d Cir. 2009). We also note

that, unlike the Pen Register Act but like Rule 6(e)(6), the Wiretap Act

establishes its own standard for unsealing: “good cause.”

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test as the standard for unsealing. Therefore, when faced with

a request to unseal either kind of material, the district court

should apply the traditional Hubbard balancing test -- albeit

without a thumb on the scale in the case of pen register orders.

C

Having concluded that the documents sought by the

applicants are judicial records to which the Hubbard test applies,

we now address the applicants’ principal challenge to the

manner in which the district court applied that test: the court’s

determination not to unseal the records because of the

administrative burden required.

Under the Hubbard test, a “seal may be maintained only ‘if

the district court, after considering the relevant facts and

circumstances of the particular case, and after weighing the

interests advanced by the parties in light of the public interest

and the duty of the courts, concludes that justice so requires.’”

MetLife, 865 F.3d at 665-66 (quoting In re NBC, 653 F.2d 609,

613 (D.C. Cir. 1981)). We review the decision to seal or unseal

for abuse of discretion. El-Sayegh, 131 F.3d at 160. “Whether

the lower court applied the proper legal standard in exercising

[its] discretion, however, is a question of law reviewed de

novo.” Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d

346, 349 (D.C. Cir. 2003).

The Hubbard test requires a district court to weigh the

following six factors:

(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;

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(5) the possibility of prejudice to those opposing

disclosure; and (6) the purposes for which the

documents were introduced during the judicial

proceedings.

MetLife, 865 F.3d at 665 (quoting Nat’l Children’s Ctr., 98 F.3d

at 1409).9

In this case, the district court found that those factors

weighed in favor of the applicants’ retrospective access to the

information they seek and that five of the six factors weighed in

favor of disclosure on a prospective basis. Leopold I, 300 F.

Supp. 3d at 97.10 In so holding, the court emphasized that “[t]he

limited scope of the [applicants’] claim is significant -- [they]

seek access only to . . . materials from closed criminal

investigations, and only to those portions of such materials that

do not reveal personally identifying information.” Id. at 91.

“As such,” the court explained, “the USAO [U.S. Attorney’s

Office] does not contend that disclosure would impede an

ongoing criminal investigation or reveal information that would

impinge on personal privacy.” Id.

9

This court has repeatedly held that those are the factors a court

should weigh in ruling on a motion to seal or unseal a judicial record.

See MetLife, 865 F.3d at 665; Hardaway v. D.C. Housing Auth., 843

F.3d 973, 980 (D.C. Cir. 2016); Primas v. District of Columbia, 719

F.3d 693, 698-99 (D.C. Cir. 2013); In re Sealed Case, 237 F.3d 657,

666 (D.C. Cir. 2001); Nat’l Children’s Ctr., 98 F.3d at 1409; Johnson

v. Greater Se. Cmty. Hosp. Corp., 951 F.2d 1268, 1277 & n.14 (D.C.

Cir. 1991).

10

The only one of the six factors that the court found to weigh

against disclosure was “the extent of previous public access to the

documents.” Leopold I, 300 F. Supp. 3d at 94-95.

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Nonetheless, the court held that there is no right of access

at all to previously filed materials, “in consideration of the

significant administrative burdens that retrospective disclosure

would impose on the Clerk’s Office and USAO.” Id. at 108. As

for future filings, the court recognized only “a limited

prospective right of access to certain information” contained in

the filings, but not to the filings themselves. Leopold II, 327

F. Supp. 3d at 22. The district court held that “significant

administrative burden” defeats any right of access beyond that

afforded by the Memorandum of Understanding between the

Clerk’s and U.S. Attorney’s Offices -- to which the applicants

were not parties. Id. at 21; Leopold I, 300 F. Supp. 3d at 105

n.38. Pursuant to that memorandum, the Clerk’s Office

generates semiannual reports that list docket numbers, case

captions, and certain other information. Leopold I, 300 F. Supp.

3d at 104 n.36. The reports are not the court dockets themselves

and do not indicate whether an application for a warrant or order

was granted or denied. See, e.g., Mot. for Judicial Notice Ex. B,

Attach. A.

“[U]nder Hubbard,” the district court said, “a court may

consider administrative burden in deciding whether to recognize

any right of access in the first place, not [just] that such a right

of access exists but nonetheless gives way to countervailing

considerations.” Leopold II, 327 F. Supp. 3d at 27. A “court

may conclude that no asserted common law right of access

exists in the first place where recognizing such right of access

would impose undue administrative burdens.” Id. The

government does not defend that conclusion.

Hubbard does not resolve the question before us.

Administrative burden is not one of the factors listed in the

Hubbard test, which we adopted to “fully account for the

various public and private interests at stake” in sealing or

unsealing judicial records. MetLife, 865 F.3d at 666. In

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concluding that administrative burden is a permissible factor, the

district court relied upon Hubbard’s further statement that a

court may consider “particularized privacy or other interests”

offered by the party opposing unsealing. Leopold II, 327 F.

Supp. 3d at 27 (quoting Hubbard, 650 F.2d at 323). That phrase

is not included in any of this circuit’s subsequent lists of the

relevant factors -- the closest of which (as quoted above) is “the

strength of any property and privacy interests asserted.”

MetLife, 865 F.3d at 665 (quoting Nat’l Children’s Ctr., 98 F.3d

at 1409); see supra note 9 (collecting cases).

Nor did Hubbard itself mention administrative burden as a

“particularized . . . other interest,” discussing instead only “types

of particularized privacy interests.” 650 F.2d at 323, 324

(emphasis added). Moreover, it used the term “particularized”

to describe “reasons based on the documents’ contents which

might have been thought by the trial judge to justify his

unsealing order” with respect to those particular documents.

Hubbard did not use the term to describe reasons for sealing

entire categories of past and future filings. Id. at 322.11

11

See, e.g., Hubbard, 650 F.2d at 318 n.99 (“We treat the

question whether public access should be granted to particular

documents which have already entered the public domain through

other channels under our discussion of the ‘particularized interests’ at

stake.”); id. at 323 n.116 (“[T]he potential for prejudice inherent in the

documents’ release must be assessed with specific reference to the

documents’ contents. The possibility of prejudice is thus another

‘particularized’ interest which may be asserted to deny public

access.”); id. at 324 (providing that the parties should be given the

chance to “articulate any particularized privacy interest they wish to

assert with respect to a document that is to be released”); see also

MetLife, 865 F.3d at 665 (requiring consideration of “the relevant facts

and circumstances of the particular case” (emphasis added) (internal

quotation marks omitted)).

-21-

In re Sealed Case, in which we recognized that

“administrative burdens [can] justif[y] the denial of across-the-

board docketing” of grand jury ancillary proceedings, is not to

the contrary. 199 F.3d 522, 527 (D.C. Cir. 2000). As we

explained there, “the grand jury context is unique. It is because

of their unique status that grand jury processes are not amenable

to the practices and procedures employed in connection with

other judicial proceedings.” Id. at 526. Indeed, as we noted

above, Federal Rule of Criminal Procedure 6(e)(6) provides that

records “relating to grand-jury proceedings must be kept under

seal to the extent and as long as necessary to prevent the

unauthorized disclosure of a matter occurring before a grand

jury.” That Rule expressly makes secrecy the default and thus

displaces the common-law right of access. See Dow Jones, 142

F.3d at 504; supra Part II.B.

This is not to say that administrative burden is irrelevant in

a court’s consideration of a motion to unseal judicial records.

Here, for example, the district court did not point to burden as

something that it simply would rather not impose on the

government and Clerk’s Office. Rather, it pointed to burden as

a concern related to other factors that are expressly recognized

in the Hubbard test: namely, preventing prejudice to open

investigations and protecting privacy interests. See MetLife, 865

F.3d at 665. As the district court explained, it declined to

recognize a retrospective right of access “in light of the

considerable administrative burden that such extensive unsealing

. . . would impose on the USAO and the Clerk’s Office, due to

the necessity of identifying, reviewing and redacting sensitive

law enforcement and privacy-protected information from any

unsealed records.” Leopold II, 327 F. Supp. 3d at 7.

The applicants recognize these concerns. In the district

court, they accepted information extracted from pen register

orders, rather than insisting on release of the orders themselves,

-22-

in order to minimize the risk of “inadvertent disclosure” that

could occur even with redaction. Leopold I, 300 F. Supp. 3d at

77. At oral argument, they acknowledged that the government

and court must be able to redact documents in order to protect

privacy and law enforcement interests. Recording of Oral Arg.

at 11:25-11:46. And we do not understand them to take issue

with the suggestion, raised at oral argument, that the district

court can generally leave it to the government to decide in good

faith when investigations are truly closed, taking into account

related cases that could be damaged by premature disclosure of

surveillance and particular difficulties that could arise if the

lawyers involved have left the government. Id. at 51:38-52:44.

The applicants may argue about the application of those

concerns to individual documents, but they accept their

importance.

It is undisputed, then, that in considering the legitimate

interests identified in Hubbard, a court may reasonably find that

the administrative burden of protecting those interests should

affect the manner or timing of unsealing. As the district court

said, the Clerk’s Office cannot simply press “print” and unseal

docket information that might jeopardize personal privacy or

ongoing investigations. Leopold I, 300 F. Supp. 3d at 98. The

applicants cannot and do not expect the U.S. Attorney’s and

Clerk’s Offices to disclose records without redactions or to drop

everything and make unsealing their top priority.

But although administrative burden is relevant to how and

when documents are released, it does not justify precluding

release forever. The records at issue here are not nailed into a

nondescript crate, stored deep in a sprawling, uncataloged

warehouse. Cf. RAIDERS OF THE LOST ARK (Lucasfilm Ltd.

1981). Production may be time-consuming, but time-consuming

is not the same thing as impossible.

-23-

For example, the district court denied the applicants’

request for additional information from past pen register filings

because it would “divert significant amounts of valuable

[Assistant U.S. Attorney] time and resources.” Leopold I, 300

F. Supp. 3d at 98. Based on the government’s previous

extraction of the same information for 10% of pen register

matters, the court estimated that extracting information for the

remaining matters would take -- at the high end -- “nearly

twenty 40-hour work weeks.” Id.12 Twenty 40-hour work

weeks is not an insubstantial amount of time. But for five

people, extraction would take only four weeks. Over two years,

that becomes only two weeks per year. Although we do not

denigrate the substantial amount of work involved, which will

undoubtedly take people away from other important tasks, at

some point the work becomes spread out over enough people

and enough time that the burden is minimized.

Treating administrative burden as dispositive with regard to

public access to judicial records would also lead to unacceptable

differences between districts. The number of electronic

surveillance orders of different kinds varies substantially

between judicial districts.13 If burden were dispositive, judicial

12

Similarly, the court cited administrative burden in denying the

applicants’s request for basic docket information from past SCA

§ 2703(d) filings, essentially the same kind of information the court

had previously released regarding pen register matters. The court

noted that providing the pen register information had taken “several

Court and Clerk’s Office personnel days to complete,” and that

providing similar information regarding § 2703(d) materials was likely

to take even more time. Leopold I, 300 F. Supp. 3d at 99.

13

Cf. U.S. Courts, Wire A1 (Dec. 31, 2018),

https://www.uscourts.gov/statistics/table/wire-a1/wiretap/2018/12/31;

see 18 U.S.C. § 2519(1).

-24-

records of precisely the same kind could be publicly accessible

in some districts and not others.

Nor would this result be limited to interdistrict variances.

If administrative burden could justify the permanent sealing of

electronic surveillance orders, there would be no basis for failing

to extend that holding to the many other kinds of sensitive

filings in the general dockets of district judges. Hence, the same

documents could be publicly accessible not only in some courts

and not others, but also in the dockets of judges with fewer such

filings and not in those with many more, even in the same court.

That result would also be unacceptable. Obtaining access may

take longer from a district or judge with a larger number of

orders than another, but at the end of the day (or many days), the

same kind of record should be accessible from both.

Accordingly, in our judgment, the burden of producing

judicial records may not permanently foreclose their unsealing.

III

Providing public access to judicial records is the duty and

responsibility of the Judicial Branch.14 Precluding public access

because of the personnel-hours required to produce those

records is no more warranted than precluding public access to

high-profile trials because of the costs of crowd control.

Administrative burden, when taken into consideration as

necessary to protect other relevant interests, may affect how and

when judicial records may be released. But it is not dispositive

of whether judicial records may be released at all.

14

This is not to suggest that the administrative burden must fall

entirely on court personnel. Redaction, for example, is a task best

undertaken (or at least proposed) by the governmental entity that

submitted the surveillance application in the first place.

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The district court has already taken important steps to

increase the transparency of filings related to the electronic

surveillance orders at issue on this appeal. We remand the case

to that court to determine, in its sound discretion, how and when

greater access can be provided.15

Reversed and remanded.

15

We are fully aware that the current coronavirus pandemic has

imposed -- and will continue to impose -- enormous burdens on the

normal operations of the Clerk’s Office and U.S. Attorney’s Office.

Needless to say, the district court may take those burdens into account

in determining “how and when” greater access can be provided.