As you know, the Media Freedom and Information Access Practicum is all about access. So perhaps you won’t be surprised to learn that we had a hand in a big-name amici brief to the 10th Circuit in support of Prison Legal News’ effort to obtain the release of audio and video documents showing the behavior of two convicted killers. The District Court had declined to release the documents, requested under FOIA by PLN, even though they had already been shown in open court during the killers’ criminal trials.
The case is particularly interesting because the documents only became subject to FOIA because the prosecutor in the criminal trials held onto the documents. So the brief argues that because they were trial exhibits aired in open court, the audiovisual materials are judicial records. If the government wanted to prevent them from being disclosed publicly, they should have applied to seal the documents. To do otherwise allows the government to obtain a de facto sealing of the documents without meeting the burden for sealing.
The brief also argues that, regardless of the custody of the documents, the press and public’s right of access should apply to the court exhibits in question. It notes a strong, presumptive common law right of access to judicial documents which can only be overriden in extraordinary circumstances not present in this case. It also argues that a qualified first amendment right to court documents also favors their release.
Supervised by Scott Schuchart of the Jerome N. Frank Legal Services Organization at Yale Law, Adri, Nabiha and myself worked on a very tight timeline to produce the raw materials for this brief. And it was a great success: Amici include 60 Minutes, the Associated Press, Westword, The American Society of News Editors, The Association of Capitol Reporters and Editors, the Society of Professional Journalists, and the ACLU of Colorado.
The case is Prison Legal News v. Executive Office of United States Attorneys (cases 09-1511 and 09-1531), and the amici brief will be made available soon, so watch this space!