Petition for Writ of Certiorari — Barbara Kowal, Petitioner v. Department of Justice, et al.

No.

IN THE SUPREME COURT OF THE UNITED STATES

BARBARA KOWAL,

PETITIONER,

Vv.

UNITED STATES DEPARTMENT OF JUSTICE, ET AL.,

RESPONDENTS.

On, Petition for Writ of Certiorari to the

United States Court of Appeals

for the District of Columbia Circuit

PETITION FOR WRIT OF CERTIORARI

LEOR VELEANU

Counsel of Record

Member, Supreme Court Bar

Office of the Federal Defender

Middle District of Florida

400 N Tampa Street, Suite 2700

Tampa. FL 33602

(813) 228-2715

Leor_Veleanu@fd.org

Counsel for Petitioner Barbara Kowal

QUESTION PRESENTED

Whether a judicial record admitted into evidence as an unsealed exhibit at a

public trial ceases to be a public record if the Government takes custody of it once

the trial concludes?

i

LIST OF PARTIES

Petitioner is Barbara Kowal (plaintiff-appellant below), a paralegal in the

Office of the Federal Defender for the Middle District of Florida (FDO).

Respondents (defendants-appellees below) are the United States Department

of Justice (DOJ), the Federal Bureau of Investigation (FBD, the Bureau of Alcohol,

Tobacco, Firearms, and Explosives (ATF), and the Drug Enforcement Agency

(DEA).

RELATED PROCEEDINGS

Kowal v. U.S. Dep’t of Just., et al., Civil Action No. 18-2798 (TIK), 2021 WL

4476746 (D.D.C. Sept. 30,2021)

Kowal v. U.S. Dep’t of Just., et al., Civil Action No. 18-2798 (TJK), 2022 WL

2315535 (D.D.C. June 27, 2022)

Kowal v. U.S. Dep't of Just., et al., 107 F.4th 1018 (D.C. Cir. July 16, 2024)

reh’g & reh’g en banc denied, Sept. 17, 2024

ii

TABLE OF CONTENTS

QUESTION PRESENTED 000... cee cccceeeeeeeeececeeeeeneececscencersaceuseassecsscasecseesaaeseensepeseeaee i

LIST OF PARTIES oo. sceeseneccersecaesceneenseneesavseenserenesseseesaveaeeeeavssensssenseseossensen ii

RELATED PROCEEDINGS ou. ceececeserersersececeeeeerscensecenecsssecencnevsaeseraseasentsnessasees ii

TABLE OF CONTENTS .00o...ecceccesceeccesecescesceescesenesessecenersaesessacnaecssesaaeseeneeneciaceseeneees ii

TABLE OF AUTHORITIES... ececcccscceceeeceeceeceeseneessteseeesceueeaessascesseseeesaeaeseeenaerenseas v

INDEX OF APPENDICES 000. ceceesecseeneeseeneereeeesecneeecseeseenseeeseesteseveeseeneetiesseaseniee ix

PETITION FOR WRIT OF CERTIORARL oo... ceceseeeceneeeesseneeseereeneneteetieeseeseasensens 1

OPINIONS BELOW ........ecccecscsccscceccsccsseseectseceecsecsecseccecseceesscenseeseceuseassaeseevecseesaeseesaencens 1

JURISDICTION 0... eeeecececsecsceeceesseeeceecseeeecessnencnsceueesassnessdesesesesseesaessaceessdeneeenseeeseeeras 1

STATUTORY PROVISIONS INVOLVED .....0.....eccccceceeceseecctsecseceeteeeeeetserscasensnseneentane 1

STATEMENT OF THE CASE ooo ci ceccseesseseeseeseeseeeesenseeceneenesseseceneretsaeaseneveesasenseas 2

I The Freedom of Information Act 0.0... ces cescessesseeceneeessereeesevensenesesenseneeseess 5

IL. Factual and Procedural Background ...........cecceccesceeesseeeseecseeeeesenersnenseeeneenes 6

REASONS FOR GRANTING THE PETITION o.oo. c eee eeateeeteeeesecnssneeneeees 10

L The Circuits Are Split on the Question Presented ............::ccecseeeserseeeteeee 12

A. A Majority of Circuits Hold That Materials Published In Open

Court Are “Judicial Records” That Permanently Enter The Public

ReCOLd......cccceccscccccsssccsesssceeesescesesescaescssceesssacessesscenseasceasescseueeeeeneaeenens 12

B The Decision Below Deepened An Already-Existing Circuit

Split cece ccsecsccesssecssecesnseessecsececessecessecseceneeenseseseceaeseneecnseeeeeeeseasensaeees 15

IL. Certiorari Should Be Granted To Resolve The Conflict Within The D.C.

CHP CULE ooo eee cccccccsssececessceeceesusecsssasecencnsacessusscnssssceessesensaaeeceseerscauaerseunneges 17

A. The Decision Below Created An Intra-Circuit Conflict ........0..000.....00 18

itl

B. The Intra-Circuit Conflict Is Significant Because Of The Prominent

Role The D.C. Circuit Plays In Shaping FOIA Jurisprudence For The

Federal Courts .........ccccccccccsscecesseesenceesenscecsseaecensaecescaeeesesensceeecenseeeenee 20

C. Granting Certiorari To Resolve An Intra-Circuit Conflict Is

Warranted Here 00.0... ceccceecsesseesececerececescececeeeneeeenaeeesseesseeesnaseesaes 22

Til. The Question Presented Concerns An Important Question Of Federal Law

Regarding Public Access To Judicial Records .00........::cccsecceseseceneeeessnsenneeees 23

A. The D.C. Circuit's Decision Misconstrues FOIA and Makes Public

Records Significantly Less Public...........:ccccsccesessecceseeeceeereoneneeneeeees 23

B. The D.C. Circuit Misread This Court’s Precedent In Reaching Its

Erroneous Decision ........cccicceseeceeeeenecensceececenneeneeesseeesenresseusessseses 27

IV. This Case Is An Ideal Vehicle... eeeeeeseeeeeeeececeneeenneeeseeerecnenesesessers 30

CONCLUSION .u...cccccccsescsssesseesnceeceessecesceeseeeseeaesaeeeaeenersaecsanenecsesseessaesaceenaseaeesssonecssones 31

iv

TABLE OF AUTHORITIES

CASES

Afshar v. Dep't of State, 702 F.2d 1125 (D.C. Cir, 1988) oo... ccceeceescesesceetseseeeseeeseens 20

Commissioner v. Estate of Bosch, 887 U.S. 456 (1967) .....cccccccssccscesssescsssseessssceseseees 11

Cooper Cameron Corp. v. U.S. Dep't. of Labor, 280 F.3d 539 (5th Cir. 2002)............ 22

Cottone v. Reno, 193 F.3d 550 (D.C. Cir. 1999)... 4, 7, 9-10, 15, 18-20, 22, 24, 30

Cox Broad. v. Cohn, 420 U.S. 469 (1975) .o...ccccccceccccecceeessecencenseescecessenseeessees 24, 25, 27

Craig v. Harney, 331 U.S. 867 (1947) .o.ccccccecccsscsccesscnscesnececcsesscessesscesscseeeseesesentesees 2-3

Davis v. U.S. Dep’t of Just., 968 F.2d 1276 (D.C. Cir. 1992) 0... 4, 9-10, 18-20

Davis v. Dep't of Just., 460 F.3d 92 (D.C. Cir. 2008)... cccccccccccceseesscesssessseesaseesees 19

Dep't of Air Force v. Rose, 425 U.S. 852 (1976) ......cccccccccccssecssessesseseecsecssessecseeseeeseens 5-6

Dickinson v. Petroleum Conversion Corp., 888 U.S. 507 (1950) wo... cececcsessceseeenseesees 23

Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990)... ec ecceeeececssscceceessectseresseteeseteetee 20

FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404 (1st Cir. 1987) oe 3, 18-14

In re Leopold, 964 F.3d 1121 (D.C. Cir, 2020)... cece seeeeeesenseeeneceeaeseeessecnesseetesneeee 8

Ingle v. Dep't of Just., 698 F.2d 259 (6th Cir. 1988)... cecceccseceseeessecseseeteeestesensees 22

John Hancock Mut. Ins. Co. v. Bartels, 308 U.S. 180 (1989) ........cc cece cceeeeeneeeeseeees 23

Kent v. United States, 383 U.S. 541 (1966) oo... cceeccccesceccecseecsseceenseeateeessenneesneens 22-23

Long Island Lighting Co. v. Lloyd Harbor Study Grp., Inc.,

435 U.S. 964 (1978)... ccc ccc cee cansenseescenesneeneenesaeensneesesseensenssceuseeesesseseaseeseeees 18

Maggio v. Zeitz, 333 U.S. 56 (1948) ooo. cccccccccsseeeseccessceeseeesscsesceesesessecssessseesseseesses 23

Natl Archives & Rec. Admin. v. Favish, 541 U.S. 157 (2004)... cceccecccesccentseeecseeees 6

Niagara Mohawk Power Corp, v. U.S. Dep’t of Energy,

169 F.3d 16 (D.C. Cir, 1999)... ecceseeeecenereesseneesecnerenseeeesesssenseaeeeeesneensete 20

Nixon v. Warner Comme'ns, Inc., 485 U.S. 589 (1978) .....ccccccsesceseseeeesseseeeeeees 3, 24-25

Prison Legal News v. Exec. Off. for U.S. Ait’ys,

628 F.3d 1243 (LOth Cir. 201)... ccecseeceeseeceececeseeceeneesesnecacceteneseeseeneees 4, 15-16

Proctor v. State Farm Mut. Auto. Ins. Co., 440 U.S. 942 (1979).....cceeescccscceeeeeeeteeeee 18

Publie Citizen v. Dep’t of State, 11 F.3d 198 (D.C. Cir. 1998)... ecceeeeeeteeeeeteee 20

Smith v. United States Dist. Ct., 956 F.2d 647 (7th Cir. 1992)... eee 4,14

United States v. Amodeo, 44 F.3d 141 (2d Cir. 1995) 0... ccc cceccecsececseneesseeeneees 13, 15

United States v. Criden, 648 F.2d 814 (8d Cir. 1981) oo... cece esseceeesseeneceenteeseenees 14

United States v. Graham, 257 F.3d 148 (2d Cir. 2001) 0... cece 3-4, 12-18, 15

United States v. Johnston, 316 U.S. 649 (1942) 0... esccccsseenseenseceetecenecessesevenee 22-23

United States v. Martin, 746 F.2d 964 (8d Cir. 1984)... ccc ccccescccsceeeesssceeessees 4,14

United States v. Rickey, 767 F.2d 705 (Oth Cir. 1985)... ccc ccceccccscessccseeseessseeenees 24

U.S. Dep’t of Just. v. Reps. Comm. for Freedom of Press,

489 U.S. 749 (1989)... ccc cssseeeserseseenessenecsaeseesessesacsasaseaceeseesesenecenevaeeae 5-6

Waller v. Georgia, 467 U.S. 39 (1984)... .eeccccccscecsecssceesscesseenseecsseeesecsesecesescscsteeessessees 26

Wisniewski v. United States, 8353 U.S. 901 (1957) ......cccccccccescccccescecenseenecesesseesssseesses 22

Wolf v. CIA, 473 F.3d 370 (D.C. Cir, 2007). csecceeceecsececeneeeeeeeaeeceecetaecaeesetenennensees 20

STATUTES

Freedom of Information Act, 5 U.S.C. § 552 .o...cccccccccccccccssecsccceeseesecersseessesenstuseneaseeee 5

5 ULS.C. § 552 (a)(B)(A) nee eececsccseeescescsseseeseecessenseseeseesenscsecsecaucaucsessessecaneseseeeaeeas 5

BULS.C. § 552 (a)(A)(B) oo. c eee cececeecseeeneesseseenaeeeseesesseceesseesersesaeeeeerseees 6

BUS... § 552(D) ieee ccc cecansseneseerersersssesseeastaseeseeeeseeseeteessesaessesaeeeenees 2,6

vi

B U.S.C. § B52(D)(6) -eccsssseeseccessssscesscssssecceseesssuvessesssseeseeseseessssssssssetessssseseecsseneesees 7

5 US.C. § 552 (D)(T)(C) «ee eeceeeeeeceeccecceeceenecseecuecseceaecneeceneceasenapsecscosecsseseereaees 2, 6-7

RULES

Fed. R. App. P. 40... ceccccsceesscecesesseecssceseceseseeesaceesesseessesseeseessceneceracecsaceesenseeeeensaseetsns 22

Fed. R. Civ. P. 5.2... cccccecccscessscnscsecsseceneeseesnecssesssecesseesaseseeeeseaesneeaeceseaceaesnaveeeesasensenases 26

Fed. R. Crim, P. 49.1 oo. cccccccesccecceseeeseceesenecsenenersnsenecssesaecssonsecesaecevaseaeeneesacensensgversenees 26

OTHER AUTHORITIES

Black’s Law Dictionary (8th ed. 2004)...........ccccccecceeesecceeceeseecesseeesceeseeacecenecenaneeneereee 24

David A. Elder, Privacy Torts (2002)... cecceseeeseeceeneeeeneceeeernseeeseeeeeennsesueaeeaee 26-27

FOIA Project Staff, When FOIA Goes to Court: 20 Years of Freedom of Information

Act Litigation by News Organizations and Reporters (Jan.13, 2021),

https://foiaproject.org/2021/01/13/foialitigators2020/ oo... cee seeeseeeeeceneeeters 21

Isaac A. Krier, Shining A Light on Rattley: The Troublesome Diligent Search

Standard Undercutting New York's Freedom of Information Law, 91

Fordham L. Rev. 681 (2022) .o....eeccccecsceseestceeseecenneeeneeeeeccnesereeeeeeeseneneeatensses 21

Kristi A. Miles, The Freedom of Information Act: Shielding Agency Deliberations

from FOIA Disclosure, 57 Geo. Wash. L. Rev. 1826 (1989)... ee eeeeeeneeseees 21

1 James T. O’Reilly, Federal Information Disclosure (2028) ........cccecceeeseeeeeeeereeeeee 21

Restatement (Second) of Torts (1976) ......ccecccccsesecesssceeescscetesceseenseaeesssceeeesaness 24, 26-27

Stephen M. Shapiro et al., Supreme Court Practice (11th ed. 2019) oe il

G. Branch Taylor, The Critical Mass Decision: A Dangerous Blow to Exemption 4

Litigation, 2 CommLaw Conspectus 133 (1994)... ee eeeeseeeeneeeeeeteneeeeneeeees 22

Deepa Varadarajan, Business Secrecy Expansion and FOIA, 68 UCLA L. Rev. 462

Samuel Warren & Louis D. Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193

(1890) eee cece cccececeeceeeeeesscescecsneesaneceanecaeaeseseseeseaeeesaneasneceaeseaeesseeceaeeesaeeeenesees 26

Kimberly Woolley, No Smoke Without FOIA: Rejecting an Exemption 5 Defense, 65

Geo. Wash. L. Rev. 817 (1997) ...c.cccccccccccccscessessseceseeessecssecsrseesesecsseeseeneecseesaeees 21

viii

APPENDIX 1:

APPENDIX 2:

APPENDIX 3:

APPENDIX 4:

APPENDIX 5:

APPENDIX 6:

APPENDIX 7:

APPENDIX 8:

INDEX OF APPENDICES

Opinion of the United States Court of Appeals for

the District of Columbia Guly 16, 2024)... ceeceesse tec een ones al

Memorandum Opinion of the United States District Court

for the District of Columbia (September 30, 2021)................. a8

Memorandum Opinion of the United States District Court

for the District of Columbia (June 27, 2022)........ esse eeeeee a22

Order of the United States Court of Appeals for

the District of Columbia Denying Rehearing En Banc

(September 17, 2024).........cccccecsessceveesecnscnsaveeteetersasensnenees a29

Order of the United States Court of Appeals for

the District of Columbia Denying Panel Rehearing

(September 17, 2024)... 0... cece see cece cen cee see eea ser eeeene nen eees a30

Statutory PLOVISIONS.........ccccseesenee cece enee econ een sea steeeeuen ben ens a3l1

Petitioner’s Petition for Panel Rehearing & Rehearing

En Banc (August 30, 2024)... Nec eeneasneeneeeceseeensanses a82

Petitioner’s Motion to Alter or Amend (October 27, 2021)...... a58

ix

PETITION FOR WRIT OF CERTIORARI

BARBARA KOWAL petitions the Court for a writ of certiorari to review the

judgment of the Court of Appeals for the District of Columbia Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals is reported at 107 F.4th 1018 and is

reproduced at Appendix 1. The District Court’s memorandum opinion granting

summary judgment in favor of Respondents is not reported but is reproduced at

Appendix 2. The District Court’s memorandum opinion denying Petitioner’s motion

to alter or amend its judgment is not reported but is reproduced at Appendix 3.

JURISDICTION

This Court has jurisdiction under 28 U.S.C. § 1254(1). The Court of Appeals

entered judgment on July 16, 2024. On August 30, 2024, Ms. Kowal filed a timely

petition for panel rehearing and rehearing en banc. On September 17, 2024, the

D.C. Circuit denied panel and en banc rehearing. On December 6, 2024, Chief

Justice Roberts extended the time within which to file a petition for a writ of

certiorari to and including January 15, 2925. Ms. Kowal timely filed this petition on

January 7, 2025.

STATUTORY PROVISIONS INVOLVED

Exemption 7(C) of the Freedom of Information Act (“FOIA”) exempts

from mandatory disclosure “records or information compiled for law

enforcement purposes, but only to the extent that the production of such law

enforcement records or information .. . (C) could reasonably be expected to

constitute an unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)

(7){C).

Other pertinent FOIA provisions are reproduced at Appendix 6.

STATEMENT OF THE CASE

“What transpires in the court room is public property.” Craig v. Harney, 331

U.S. 367, 374 (1947). In contravention of this basic principle, the Government

refused a FOIA request to disclose a trial exhibit it admitted into evidence in open

court at a federal trial.

The exhibit in question was a plea agreement the Government made with a

testifying witness who had-been charged in the case. The Government marked it as

an exhibit, entered it into evidence in open court, the witness testified about it on

the stand, and the exhibit was published to the jury. App. 1 at a6; App. 3 at a27. At

no point did the Government move to seal the exhibit. Yet the Government now

asserts this exhibit is exempt from disclosure under FOIA Exemption 7(C), which

precludes production of records compiled for law-enforcement purposes, “but only to

the extent that the production . . . could reasonably be expected to constitute an

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C). In other words,

the Government claims it is necessary to withhold this court record to protect the

personal privacy of the witness who openly testified about it at a public trial.

The D.C. Circuit upheld the denial of disclosure under Exemption 7(C). Its

ruling hinged on the fact that the Government, rather than the clerk of the court,

took custody of the plea agreement exhibit at the conclusion of the trial. Since that

meant the exhibit was not accessible on the public docket, the D.C. Circuit held the

exhibit was not a public record. App. 1 at a6. Thus, despite its previous public

disclosures at trial, the lower court concluded that the Government had not waived

the witness’s purported privacy interests because by taking custody of the exhibit, it

was removed from the public domain.

The decision below creates a circuit split on an important question of federal

law—one that goes to the heart of whether public records are, in fact, truly

available to the public. It is well-established that a “trial is a public event.” Craig,

331 U.S. at 374. Thus, documents that play an adjudicative role in a trial are

considered “judicial records” ordinarily subject to public inspection. Nixon v. Warner

Comme'ns, Inc., 435 U.S. 589, 597 (1978). But under the D.C. Circuit’s approach, a

judicial record ceases to become public if the Government takes custody of it.

Consequently, when the Government uses records as evidence in open court, they

are only temporarily accessible to whomever happens to make it to court while trial

is ongoing. The decision below thus significantly and improperly curtails the

public’s access to trial exhibits.

The First, Second, Third, and Seventh Circuits have adopted the opposite

view, holding that whether judicial records are public depends purely on the role

those documents played in the adjudicatory process; materials on which a court

relies in determining the litigants’ substantive rights are “judicial records,” subject.

to the right of public access. See FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404,

408 (1st Cir. 1987); United States v. Graham, 257 F.3d 148, 152-58 (2d Cir. 2001);

United States v. Martin, 746 F.2d 964, 968 (8d Cir. 1984); Smith v. United States

Dist. Ct., 956 F.2d 647, 650 (7th Cir. 1992). Whether trial exhibits are subsequently

retained by the clerk or returned to the custody of the Government has no bearing

on whether they are “judicial records” subject to public inspection. Graham, 257

F.3d at 152 n.5.

The decision below also created an intra-circuit split. The D.C. Circuit had

long held that the Government cannot rely on an otherwise applicable FOJA

exemption to defeat a request for the very same records that it has already disclosed

as unsealed evidence in open court. See Cottone v. Reno, 193 F.3d 550, 554-56 (D.C.

Cir. 1999); Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992). In

both Cottone and Reno, the-Circuit held that the Government was required to

disclose audio tapes previously played at public trials. In each case, the relevant

tapes were in the custody of the Government, and not otherwise available on the

public docket. But that was immaterial to the analysis; by publishing materials in

open court, the Government had entered them into the permanent public record.

Consequently, the Government could not rely on FOIA exemptions to resist

disclosure. Here, however, the decision below reached the opposite result on

materially identical facts.

Only one other circuit follows the approach articulated in the decision below.

In Prison Legal News v. Exec. Off. for U.S. Att’ys, 628 F.3d 1243, 1253 (10th Cir.

2011), the Tenth Circuit held that photographs and video recordings admitted into

evidence at a public trial had been removed from the public record when the

Government took custody of the exhibits at the completion of trial. It reasoned that

the records were properly withheld pursuant to Exemption 7(C) to protect the

privacy interests of third parties because the photos and recordings had not entered

the public domain; they were viewed only by the limited number of individuals

present in the courtroom during the trial. Id.

The D.C. Circuit has now adopted this cramped view that a public disclosure

of evidence at a public trial is only a limited disclosure to the courtroom audience.

This approach minimizes the constitutional notion of a public trial and runs counter

to a longstanding tradition of making court records generally accessible to the

public at large. The decision below thereby threatens to undermine the ability of the

public to learn from past judicial records about “what the Government [was] up to.”

U.S. Dep’t of Just. v. Reps. Comm. for Freedom of Press, 489 U.S. 749, 780 (1989). To

resolve the split between the circuits on an important question of federal law, this

Court should grant certiorari and reverse.

I. The Freedom of Information Act.

FOIA generally requires every federal agency to make “promptly available”

records that any person requests. 5 U.S.C. § 552(a)(8)(A). Congress enacted FOIA to

implement “a general philosophy of full agency disclosure.” Reps. Comm., 489 U.S.

at 754 (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 360 (1976)). FOIA’s purpose

is “crystal clear”: “[T]o pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” Rose, 425 U.S. at 361 (cleaned up).

Congress exempted several categories of documents from FOIA’s disclosure

requirements. See 5 U.S.C. § 552(b). These exemptions “must be narrowly

construed,” as “disclosure, not secrecy, is the dominant objective of the Act.” Rose,

425 U.S. at 361. “Unlike the review of other agency action that must be upheld if

supported by substantial evidence and not arbitrary or capricious,” FOIA “expressly

places the burden ‘on the agency to sustain its action’ and directs the district courts

to ‘determine the matter de novo.” Reps. Comm., 489 U.S. at 755 (quoting §

552(a)(4)(B)).

As relevant here, FOIA Exemption 7(C) exempts records compiled for law

enforcement purposes “but only to the extent” that their production “could

reasonably be expected to constitute an unwarranted invasion of personal privacy.”

§ 552(b)(7)(C). To determine whether such an invasion is “unwarranted,” courts

must balance the personal privacy interest against the public interest in disclosure.

Natl Archives & Recs. Admin. V. Favish, 541 U.S. 157, 171 (2004); Reps. Comm.,

489 U.S. at 762. This right to be informed is advanced by disclosures that “shed any

light on the conduct of any Government agency or official.” Id. at 773.

II. Factual and Procedural Background.

Barbara Kowal is a paralegal in the Federal Defender’s Office for the Middle

District of Florida (FDO). That office was appointed to represent an indigent

defendant, Daniel Troya, in his federal capital post-conviction proceedings. Mr.

Troya was sentenced to death after a public trial in the Southern District of Florida.

As part of her paralegal duties, Ms. Kowal submitted a FOIA request to the

FBI for its records regarding the investigation and prosecution of Mr. Troya. App. 1

at a2. The FBI produced some records, but withheld others. After exhausting

administrative remedies, the FDO filed suit in the United States District Court for

the District of Columbia, alleging that the agency’s withholdings were improper

under the FOIA. App. 1 at a2.

One of the withheld records—and the only one relevant to this Petition—was

a Government exhibit admitted at Mr. Troya’s trial: a plea agreement between the

Government and one of Mr. Troya’s co-defendants. The FBI invoked FOIA

Exemption 7(C) to justify withholding this record. App. 1 at a5-a6.1 That exemption

is intended to protect the personal privacy of third parties mentioned in agency

records. Specifically, Exemption 7(C) protects “records or information compiled for

law enforcement purposes ... [that] could reasonably be expected.to constitute an

unwarranted invasion of personal privacy.” 5 U.S.C. § 552(b)(7)(C).

The FDO argued the withholding was unjustified. Under well-settled law, if

information is already in the public domain, an agency cannot invoke an otherwise

valid exemption to withhold it. Cottone, 193 F.3d at 554-55. Here, the plea

agreement was plainly in the public domain: the Government entered it into

evidence as an unsealed exhibit in open court. Thus, any privacy rights were waived

when the Government voluntarily disclosed the agreement and offered it into the

public record.

Despite these facts, the district court granted summary judgment in favor of

1 The Government also invoked FOIA Exemption 6, which protects “personnel .. . and

similar files the disclosure of which would constitute a clearly unwarranted invasion of personal

privacy.” 5 U.S.C. § 552(b)(6). The decision below, however, relied solely on Exemption 7(C) in its

analysis.

the FBI. It reasoned that “because the plea agreement is not available on the public

docket, it is not in the public domain, and may be withheld under Exemption 7(C).”

App. 2 at ald.

The FDO moved for reconsideration. App. 8. It argued the district court’s

determination of whether the plea agreement entered the public record was flawed

because. it hinged on whether the relevant trial exhibit was accessible through the

public docket. This novel rule contravened the long-settled understanding that what

transpires in open court is a matter of public record. That understanding is rooted

in the common-law right of access to judicial records—a right so fundamental that it

predates the Constitution. App. 8 at-a42-a44; In re Leopold, 964 F.3d 1121, 1127

(D.C. Cir. 2020). Whether an exhibit is available on the court’s docket after the trial

concludes is thus immaterial to the question at hand: whether the exhibit, by virtue

of being a judicial record, is a public record subject to inspection.

The district court declined to reconsider its ruling. It held that even if the

plea agreement was admitted into evidence and thus “technically public,” the fact

that it was not available on the electronic docket of the criminal case made it

“practically obscure,” and therefore not within the public domain. App. 3 at a27-a28.

The FDO appealed. The D.C. Circuit affirmed the grant of summary

judgment and ruled that the FBI properly justified its withholding of the plea

agreement under Exemption 7(C). App. 1 at a6. Tracking the lower court’s

reasoning, the panel held that the dispositive issue was whether the relevant trial

exhibit was accessible on the public or electronic docket:

Kowal also specifically challenges the FBI’s withholding of a testifying

witness’s plea agreement because the agreement was admitted into

evidence at trial and discussed in open court. Trial records are generally

considered public; however, to satisfy the public domain doctrine, they

must be “preserved in a permanent public record.” Cottone, 193 F.3d at

554. Records are no longer public when “destroyed, placed under seal, or

otherwise removed from the public domain.” Id. at 556. And our circuit

has cast doubt on the proposition that “practically obscure” material

remains public. Davis, 968 F.2d at 1279 (cleaned up). Here, the FBI has

provided evidence that Troya’s trial records, including the specified plea

agreement, were not filed with the court and preserved. Because these

records are not accessible on the public or electronic docket, the plea

agreement does not fit within the public domain doctrine.

App. 1 at a6 (emphasis added).

The FDO filed a timely petition for rehearing and rehearing en banc. App. 7.

The petition specifically argued that the panel’s newly-created “docket accessibility”

rule contravened long-standing circuit precedent holding that when the

Government admits materials into evidence in open court, such materials enter the

permanent public record and must be disclosed pursuant to a FOIA request. App. 7

at a42-a45 [rehearing pet at 5-8]. The D.C. Circuit, however, did not act to resolve

the intra-circuit conflict; it denied the petition for rehearing and rehearing en banc

on September 17, 2024. App. 4; App. 5.

REASONS FOR GRANTING THE PETITION

1. This Court should grant certiorari because the D.C. Circuit’s decision

below conflicts with decisions of the First, Second, Third, and Seventh Circuits that

unsealed judicial records are matters of public record. It is well-settled in those

circuits that if a judicial record played a role in the adjudicatory process, the public

has a right to see it. That right of public access to court records continues to apply,

notwithstanding a change in the government custodian of the records. The D.C.

Circuit—along with the Tenth Circuit—is in direct conflict with the majority

approach. Under its rule, a change in the government custodian is dispositive; an

unsealed judicial record used in a public trial ceases to be a public record if the

Government takes possession of it at the conclusion of the trial. These two

approaches cannot be harmonized. Given the breadth and depth of the conflict, this

Court should grant certiorari to resolve the split. This is especially so given the

national significance of the underlying issue—the public’s right to inspect judicial

records and the associated public interest in transparent court proceedings.

2. Certiorari is also warranted because the decision below created an

intra-circuit split. Prior to this decision, it was well-settled in the D.C. Circuit that

the Government must grant a FOIA request for records that it previously disclosed

in open court. See Cottone, 193 F.3d at 554; Davis, 968 F.2d at 1281. But under the

D.C. Circuit’s newly-promulgated rule, these cases would have been decided

differently because the relevant trial exhibits were not accessible on the public

docket. Accordingly, the decision below squarely conflicts with Cottone and Davis.

10

While an intra-circuit conflict is not, by itself, ordinarily a basis for certiorari

review, “when the intracircuit conflict relates to a recurring and important issue or

2

is accompanied by a ‘widespread conflict among the circuits,” it may become one of

the facts inducing the Court to grant certiorari. Stephen M. Shapiro et al., Supreme

Court Practice, 4-24 (11th ed. 2019) (quoting Commissioner v. Estate of Bosch, 387

U.S. 456, 457 (1967), and collecting cases). Given.the prominent role the D.C.

Circuit plays in shaping FOIA jurisprudence for the federal courts, as well as the

recurring and important underlying issue, this Court should grant certiorari to

resolve the D.C. Circuit’s divergent precedents.

3. Certiorari is further warranted because the decision below undermines

the longstanding and important principle that unsealed judicial records are truly

matters of public record. Application of exemptions to FOIA disclosure must take

into account not only the public’s interest in the underlying information, but also

the well-established interest in transparent court proceedings. Any other approach

allows the Government to obtain a de facto seal on court records without a public

process, inverting what should be the Government’s burden to articulate a need for

secrecy ex ante into the public’s need to litigate disclosure under FOIA ex post.

Having divulged records for its own purposes at trial, the Government should not be

free to claw them back from the public domain. Nor should it be allowed to

retroactively assert a privacy interest it plainly waived at the time of its public

disclosure. This Court should grant certiorari and reverse to ensure the public

retains the right to see for itself evidence the Government used in a public trial.

il

I. THE CIRCUITS ARE SPLIT ON THE QUESTION PRESENTED.

The trial exhibit requested by Petitioner became a judicial document when

the Government admitted it into evidence in open court. At no time before, during,

or after the trial did the Government move to seal the exhibit. This unsealed exhibit

is currently in the custody of a government office. Under the approach followed by

the First, Second, Third, and Seventh Circuits, the exhibit remains in the

permanent public record, and the public retains the right to access it. But under the

minority rule announced by the D.C. Circuit in the decision below, the exhibit was

removed from the public domain once the Government took custody of it. In so

ruling, the D.C. Circuit followed the approach previously articulated by the Tenth

Circuit. The D.C. Circuit's decision thus deepened a pre-existing circuit split on a

significant and recurring issue: whether unsealed judicial records are truly public.

A, A Majority of Circuits Hold That Materials Published In Open

Court Are “Judicial Records” That Permanently Enter The

Public Record.

A number of circuit courts have concluded that materials published in open

court are “judicial records” that enter the public domain, and are thus subject to

public access.

In United States v. Graham, supra, the Second Circuit considered this issue

with respect to tapes played at a pretrial hearing. There, the Government argued

that since the tapes were never formally admitted into evidence and filed with the

court, they were not public. 257 F.3d at 151. The Second Circuit wholly rejected “the

view that this Court could answer this question simply by determining whether the

12

document was on file with the court[.]” Id. at 152. As it observed, it was immaterial

that the tapes were “not in the custody of the Clerk, but rather in the hands of

prosecutor” because “the tapes became public by virtue of having been played in

open court.” Id. at 153 n.5.

Similarly, while evidence admitted at trial was unquestionably a “judicial

record,” that category of records includes more than just trial exhibits. Jd. at 152. In

order to be considered a “judicial record,” the pertinent inquiry was whether the

record was “relevant to the performance of the judicial function and useful in the

judicial process[.]” Id. (quoting United States v. Amadeo, 44 F.3d 141, 145 (2d Cir.

1995)). If so, the document was a “judicial record,” and it was axiomatic that the

public had a right of access to the record, regardless of the government custodian.

Id. at 152-53.

The First, Third, and Seventh Circuits have all likewise held that documents

that play an adjudicative role in a court proceeding are “judicial records” ordinarily

subject to public inspection, regardless of whether they have been entered into

evidence or otherwise formally filed with the court:

In Standard Fin. Mgmt. Corp., supra, the First Circuit held that financial

statements examined by the district court at a hearing on a consent decree were

“judicial records” subject to public inspection, notwithstanding the fact the relevant

litigation by the parties had already been terminated at that point and the

statements had never been entered into evidence. Of note, the relevant hearing was

public, and the financial statements were unsealed. 803 F.2d at 406. Moreover, the

13

district court unquestionably relied upon the documents to determine the litigants’

substantive rights and to perform its adjudicatory function. Id. at 410. Hence, the

financial statements were “judicial records” to which the presumption of public

access attached. Id.

In United States v. Martin, supra, the Third Circuit considered whether

transcripts published to a jury in a criminal trial, but not entered into evidence,

were judicial records subject to public inspection. In finding that they were, the

court noted that the “common law right of access is not limited to evidence,” and

that the “public interest in monitoring judicial proceedings” supported a

presumption of access. 746 F.2d at 968. Indeed, it would “unduly narrow the right of

access were it to be confined to evidence properly admitted, since the right is based

on the public’s interest in seeing and knowing the events which actually transpired”

in open court. Id. at 969 (quoting United States v. Criden, 648 F.2d 814, 828 (3d Cir.

1981)).

In Smith v. U.S. Dist. Court, supra, the Seventh Circuit held that a memo

that had not been entered into evidence was nevertheless a “judicial record” subject

to public inspection because it was “read in open court, and thus was part of the

court proceedings.” 956 F.2d at 650. As it explained, “the policy behind the common

law presumption of access is that what transpires in the courtroom is public

property,” Id.

As each of these circuit courts recognized, the common-law right functions to

extend the right of the public to attend court proceedings to include the inspection

14

of materials presented at those proceedings:

Thus, just as a member of the public sitting in the courtroom might

observe the presentation of evidence as to which an objection is made

and sustained as well as evidence which is admitted, it makes sense that

the definition of a “judicial document” would extend to any material

presented in a public session of court “relevant to the performance of the

judicial function and useful in the judicial process” whether or not it was

formally admitted.

Graham, 257 F.3d at 153 (citing United States v. Amodeo, 44 F.3d 141, 146 (2d Cir.

1995)).

Indeed, even the D.C. Circuit itself adhered to this principle until recently.

Prior to its decision below, the D.C. Circuit had long relied on the “venerable

common-law right to inspect and copy judicial records” to hold that the Government

could not rely on an otherwise valid FOIA exemption to resist disclosure of evidence

it had previously published in open court. See Cottone, 193 F.3d at 554. As detailed

more fully in Section H, infra, the decision below has thus alse created an.

intractable intra-circuit split.

B. The Decision Below Deepened An Already-Existing Circuit

Split.

Prior to the decision below, the Tenth Circuit had already created a circuit

split when it issued its decision in Prison Legal News. There, the FOIA requester

sought access to a video depicting the aftermath of a prison murder and autopsy

photographs of the victim. 628 F.3d at 1246. The Government invoked Exemption

7(C) to withhold these records, asserting that disclosure would constitute an

unwarranted invasion of personal privacy of the victim’s family. Id. The FOIA

15

requester countered that notwithstanding the exemption, the records must

nonetheless be released because they were admitted as unsealed exhibits in open

court at two previous criminal trials, and therefore were already in the public

domain. Id. at 1252.

The Tenth Circuit upheld the Government’s use of Exemption 7(C) to

withhold the trial exhibits. It noted that after the trials concluded, “the photographs

and video were returned to the United States Attorneys Office pursuant to a

standing order regarding the custody of exhibits.” Id. at 1246. This fact was

dispositive to its analysis because it meant the exhibits had been “removed from the

public record.” Id. at 12538. Given that, it reasoned that the exhibits had not truly

become public:

[T]he actual images have been viewed by a limited number of

individuals who were present in the courtroom at the time of the trials.

Thus, enforcement of Exemption 7(C) can still protect the privacy

interests of the family with respect to the images and recordings because

they have not been disseminated.

Id.

The D.C. Circuit’s decision follows the rationale articulated by the Tenth

Circuit. It, too, concluded that since the relevant trial exhibit was not in the custody

of the clerk of court—and thus not available on the public docket—it was no longer

in the public domain. App. 1 at a6. (“[T]he FBI has provided evidence that Troya’s

trial records, including the specified plea agreement, were not filed with the court

and preserved. Because these records are not accessible on the public or electronic

docket, the plea agreement does not fit within the public domain doctrine.”). In so

16

doing, the D.C. Circuit deepened the pre-existing split among the circuits on

whether the public’s right of access to judicial records depends entirely on what

government entity happens to be the custodian of those records. This is a question

of enormous importance because it fundamentally defines what it means for a trial

and judicial record to be “public.” Accordingly, this Court should grant certiorari to

resolve this conflict among the circuit courts.

Il. CERTIORARI SHOULD BE GRANTED TO RESOLVE THE

CONFLICT WITHIN THE D.C. CIRCUIT.

The decision of the panel below is in direct conflict with the decisions of two

other panels of the D.C. Circuit. Typically, such an intra-circuit conflict would not

necessitate this Court’s involvement. But this intra-circuit conflict is not typical.

FOIA litigation is heavily concentrated in the District of Columbia, so the D.C.

Circuit plays a unique and outsized role in shaping FOIA jurisprudence for all

federal courts. Thus, an intra-circuit conflict here on a FOIA matter is intolerable.

It will create needless confusion for FOIA requesters, agencies, and courts across

the country attempting to determine when judicial records are subject to disclosure.

While such intra-circuit conflicts are ordinarily expected to be resolved by the

circuits themselves by way of panel or en banc reconsideration, the D.C. Circuit

declined to do so here, even after Petitioner brought the conflict to its attention.

Given the importance of the issue, and-the Circuit’s refusal to act, this Court should

grant certiorari to address the intra-circuit conflict.”

2 The Court, of course, need not resolve the conflict itself. It may exercise the option of

granting the writ, vacating the judgment, and remanding the issue to the D.C. Circuit for further

17

A. The Decision Below Created An Intra-Circuit Conflict.

The conflict here concerns whether the Government can refuse to disclose

records by invoking a FOIA exemption when it has already disclosed those very

same records by placing them in the public domain as unsealed evidence in a public

trial. Prior to the decision below, the D.C. Circuit definitively settled this matter in

two seminal cases: Davis and Cottone.”

In Davis, the FOIA requester souglit tape recordings made by the FBI during

a criminal investigation of a reputed mob boss. The Government invoked various

FOIA exemptions, including Exemption 7(C), to resist disclosure of the tapes. The

requester asserted that the exemptions did not apply because some of the tapes had

already been made public when they were entered into evidence-and played in open

court at the mob boss’s subsequent trial. The D.C. Circuit sided with the requester

and held that “the government cannot rely on an otherwise valid [FOIA] exemption

claim to justify withholding information that has been officially acknowledged or is

in the public domain.” Davis, 968 F.2d at 1279 (internal quotation marks and

citations omitted). Therefore, the requester was entitled to any tapes that were

played in open court because such information had entered and remained in the

public domain. Id. However, the requester bore the burden of demonstrating that

the exact portions of the tapes he sought had, in fact, been played in court. Id. at

1280. On remand, the requester carried his burden as to most of the portions of the

tapes, and the Government released those portions that it still possessed. See Davis

consideration. See Proctor v. State Farm Mut. Auto. Ins. Co., 440 U.S. 942 (1979); Long Island

Lighting Co. v. Lloyd Harbor Study Grp., Inc., 485 U.S. 964 (1978).

18

v. Dep’t of Just., 460 F.3d 92, 96 (D.C. Cir. 2006).3

Cottone concerned an almost identical fact pattern. The FOIA requester

sought wiretap recordings that had been introduced into evidence and played in

open court during a public criminal trial. Building on Davis, the D.C. Cireuit

observed that “the logic of FOIA mandates that where information is truly public,

then enforcement of an exemption cannot fulfill its purposes.” Cotéone, 193 F.3d at

554 (cleaned up). Thus, “materials normally immunized from disclosure under FOIA

lose their protective cloak once disclosed and preserved in a permanent public

record.” Id.

The Cottone decision left-no doubt that materials admitted into evidence in a

public trial permanently enter the public domain:

[O]Jur decisions construing the venerable common-law right to inspect

and copy judicial records make it clear that audio tapes enter the public

domain once played and xeceived into evidence. We have long observed

the general rule that a trial is a public event, and what transpire in the

courtroom is public property.

id. (cleaned up). Indeed, “until destroyed or placed under seal, tapes played in open

court and admitted into evidence—no less that the court reporter's transcript, the

parties’ briefs, and the judge’s order and opinions—remain a part of the public

domain.” Id. Thus, the public’s right to inspect and obtain copies of materials

entered into evidence continues “even after a trial has concluded.” Id.

3 Although not at issue here, the FDO met its burden of production by proffering a transcript

excerpt of the co-defendant’s testimony acknowledging the plea agreement, as well as what it

reasonably believed was a copy of the plea agreement that it obtained from a non-public source. The

Government acknowledged the transcript established that the plea agreement was entered into

evidence in open court, but not that the proffered plea agreement matched the withheld record.

19

Until recently, Cottone and Davis established a clear rule: materials admitted

into evidence in open court enter the permanent public record, therefore the

Government cannot rely on FOIA exemptions to withhold them. Indeed, the D.C.

Circuit has applied this “public domain” rule in cases involving a wide spectrum of

FOIA exemptions.4 But what was once lucid D.C. Circuit law is now conflicted.

Under Kowal, trial evidence loses its status as a public record if the Government

takes custody of it after trial.

The D.C. Circuit’s decisions cannot be harmonized. Yet despite being in clear

conflict with prior precedent, the Kowal court did not overrule Cottone and Davis.

Thus, future litigants confronted with this issue will be faced with the precarious

and unenviable task of attempting to determine whether the panel of judges

deciding their case will follow the long-established rule articulated in

Cottone/Davis—grounded in decades of precedent construing the common-law right

to inspect judicial-records—or the novel rule recently announced in Kowal.

B. The Intra-Circuit Conflict Is Significant Because Of The

Prominent Role The D.C. Circuit Plays In Shaping FOIA

Jurisprudence For The Federal Courts.

The D.C. Circuit “has long played a significant role” in interpreting the

provisions of the FOIA and shaping its jurisprudence.5 FOIA litigation is heavily

4 See, e.g., Public Citizen v. Dep't of State, 11 F.8d 198, 201-03 (D.C. Cir. 1993) (exemption 1);

Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) (exemption 1); Cottone, 198 F.8d at 554-55

(exemption 3); Niagara Mohawk Power Corp. v. U.S. Dep’t of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999)

(exemption 4); Davis, 968 F.2d at 1278-80 (exemptions 3, 7(C), and 7(D)); Wolf v. CIA, 473 F.3d 370,

378-80 (D.C. Cir. 2007) (exemptions 1 and 3); Afshar v. Dep't of State, 702 F.2d 1125, 1180-84 (D.C.

Cir. 1983) (exemptions 1 and 3).

5 Deepa Varadarajan, Business Secrecy Expansion and FOIA, 68 UCLA L. Rev. 462, 488

(2021). See also Kristi A. Miles, The Freedom of Information Act: Shielding Agency Deliberations

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