The opinion
RYAN, Circuit Judge,
concurring in part and dissenting in part.
If this were a case holding only that the district court erred in concluding that it was without jurisdiction to consider the request for relief by intervenor Storer Communications, Inc., I would concur and be done with it — but other conclusions seem to have been reached in Chief Judge Lively’s lead opinion, and with several of them I do not agree.
The court appears to have concluded that the government’s appearance in camera before Judge Manos was really for the purpose of inducing him to recuse himself. The government claims its purpose was not that at all, but was to obtain, “in an excess of caution,” a ruling on possible Brady/Giglio 1 materials.
Storer says that asserted purpose is “disingenuous” and the real reason for submission of the documents to Judge Manos was to induce him to recuse himself — a blatant exercise in “judge shopping.”
The Chief Judge concludes that “[tjhere is no Giglio issue in this case,” that “[t]he government’s Giglio argument to this court is patently frivolous,” and that “our examination of the documents raises serious questions about the true reasons for presenting the sealed materials to Judge Manos.” While entirely respectful of the Chief Judge’s point of view, I do not share those views, or join in those conclusions.
The record shows that in approaching Judge Manos, the government sought a hearing to obtain a ruling whether certain materials in its possession had to be turned over to the defendants. That process has become widely known as an “in camera ” Brady hearing. The government has called it a Brady/Giglio determination. I find nothing sinister or disingenuous in that. The fact that Judge Manos, after evaluating the material, chose to recuse himself, does not somehow retroactively convert the proceeding before him into a recusal motion or constitute “judge shopping.”
In Press-Enterprise Co. v. Superior Court of California, 478 U.S. -, 106 S.Ct. 2735 , 92 L.Ed.2d 1 (1986) (Press-Enterprise II) the Supreme Court posited that the first of two “complementary considerations” that test whether the press enjoys a first amendment qualified right of access to judicial proceedings, is whether the “place and process” has historically been open to the public. As Judge Joiner has pointed out in his separate opinion, the “place” at which material is submitted to the court for a Brady determination has historically been closed to the press and public because the process has historically been conducted “in camera.” Thus, it is even more self-evident in this case than it was in the companion case, United States v. Jackie Presser (Application of National Broadcasting Company), that the Press-Enterprise II test for determining a qualified first amendment right of access to judicial proceedings is unmet.
In addition, Press-Enterprise II is no authority for the conclusion that the general public, including Storer, has a constitutional right of access to the materials submitted to Judge Manos. As I indicate in my dissenting opinion in the companion NBC case, Press-Enterprise II has nothing to do with court documents.
Moreover, materials submitted to the trial court for a Brady or Brady/Giglio determination are potential discovery materials. If a trial court rules that such materials must be disclosed to the defendant, they thereby become discovery materials and the defendant has a right to them — but the public and press do not. The Supreme Court has been very clear that there is no first amendment right of access, qualified or otherwise, to discovery materials. See Seattle Times v. Rhinehart, 467 U.S. 20 , 104 S.Ct. 2199 , 81 L.Ed.2d 17 (1984), in which the Court stated:
“[Discovery is] not [a] public component[] of a ... trial____ Much of *339 the information that surfaces ... may be unrelated, or only tangentially related, to the underlying cause of action. Therefore, restraints placed on discovered, but not yet admitted, information are not a restriction on a traditionally public source of information.”
Id. at 33 , 104 S.Ct. at 2208 .
To be sure, the Chief Judge does not hold that a properly conducted Brady determination proceeding is completely open to public access. He appears to agree that it is not, but would require that new procedural steps be taken to alert the press and public when a Brady submission is about to be made to a trial court. However, in Part IV of his opinion, my brother appears to treat the material submitted to Judge Manos in this case not as Brady material, but as documentation intended to induce Judge Manos to recuse himself. Having thus concluded that the government’s submission was really a recusal request, the Chief Judge would order the district court, upon remand, to treat the material “in accordance with the standards set forth today in NBC....”
In my judgment, the proceeding before Judge Manos was not a recusal request and there is nothing other than suspicion, speculation and Storer’s argument to suggest it was. It was a Brady determination proceeding, just as the record before us shows it was. Storer had no constitutional right to be present at the proceeding or have access to the materials submitted to the court “in camera.” With all due respect, I am unable to share my brother’s suspicion of the motive of the government attorneys in this case, or the good faith of their representations to this court. Plainly, there was confusion. The government attorneys who responded to the court’s questions at oral argument were not the same government attorneys who made the submission to Judge Manos. Had the government attorneys had any reasonable basis whatever to anticipate that a routine Brady submission would be challenged by the media as an unconstitutional deprivation of first amendment rights, they might have made a better record and communicated among themselves, and with this court, more clearly. That they did not has resulted in some confusion, but not, in my judgment, any deception.
Finally, while I subscribe to my brother Joiner’s dissent from the idea that either the “in camera ” Brady determination hearing, or the documents submitted for consideration are subject to a first amendment right of access, I am unable to agree with him that, should the district court upon remand decide that the materials submitted to Judge Manos are discoverable under Brady or Giglio, the media would enjoy a first amendment right of access to them. The mere fact that an in camera determination may result in a ruling that the submitted material is discoverable under Brady does not somehow constitute the “place and process” at which the determination was made an historically open proceeding. See Press-Enterprise II, 478 U.S. at-, 106 S.Ct. at 2740 , 92 L.Ed.2d at 10 .
Today’s effort by the media in the companion NBC ease and this case to find in the first amendment a constitutional right of access to information it could not turn up on its own — information generated in connection with proceedings never historically open to the public and light years distant from the criminal trial itself— should fail because there is no justification for it in the language of the first amendment or any authoritative interpretation of it. The first amendment guarantees to the press and broadcast media a qualified right to publish information it possesses, not the constitutional right to demand revelation of information it does not.
Plainly, the district court erred in concluding that it had no jurisdiction to entertain Storer’s request. We should reverse and remand: but with what instructions?
When a claim to a constitutional right of access to court documents and proceedings is made, and the claim has no merit, as in this case, the district court should, if it closes the proceedings and seals the documents, make specific findings of fact and conclusions of law in order to permit a reviewing court to determine whether the order closing the proceedings and sealing *340 the documents was a sound exercise of the court’s discretion — a discretion to be disturbed only for abuse. Because the district court determined it had no jurisdiction to consider Storer’s application in this case, it made no such findings and conclusions.
In candor, I must acknowledge that it was not possible for me to address the issues raised by the parties and addressed by my colleagues, without expressing my understanding that it has long been the nearly universal practice in federal district courts to conduct Brady determination hearings in camera. That history, and the justification for it, as explained by Judge Joiner, suggests to me that district courts generally do not abuse their discretion in closing Brady determination hearings to the general public and the press.
Nevertheless, I would remand the case to the district court for a determination of whether Storer has a common-law right of access to the materials submitted to Judge Manos. It is my understanding that no verbatim transcript of the proceedings was made, thus precluding any question about the right of access to the record of the earlier proceeding.
. Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963); Giglio v. United States, 405 U.S. 150 , 92 S.Ct. 763 , 31 L.Ed.2d 104 (1972).