Legal Commentary

Guest contributor Megan Logsdon, Esq. writes:

In two cases that pit privacy interests over the public?s right to know (including the right to know too much), In the Matter of the New York Times Company to Unseal Wiretap and Search Warrant Materials in United States v. Brener, Suwal and Lewis, 2009 WL 424383 (S.D.N.Y. February 19, 2009) (?Spitzer I?)and 2009 WL 724944 (S.D.N.Y. March 19, 2009) (?Spitzer II?), SDNY Judge Rakoff has issued important rulings on the public?s right to ?keep a watchful eye on the workings of public agencies? through access to judicial documents. These cases involve the infamous (and curiously convenient) wiretaps of two cellphones and an email address associated with the Emperor?s Club, a prostitution and money-laundering ring whose most famous client was former New York governor Eliot Spitzer. The cases are an important milestone in the jurisprudence governing the public?s right of access to wiretap applications, and, in the process, scrutiny of politically motivated criminal prosecutions.

Facts

The initial wiretap applications, their supporting materials, and the authorization order were placed under seal by the issuing judges, as required by Title III of the Omnibus Crime Control and Safe Streets Act of 1968. That statute requires that the applications be sealed, and only ?disclosed only upon a showing of good cause.? Of the 67 individuals mentioned in the application as customers of the ring, only one moved to intervene to oppose the motion. No doubt the other 66 partly wanted to keep a low profile, but they also relied on the government?s agreement with the Times that the government would redact the names and indentifying information of all individuals except Spitzer, who has already been identified publicly.

Holding

?[T]hree basic principles? governed Judge Rakoff?s decision: first, that the materials at issue are ?judicial records;? second, that judicial documents are presumptively subject to public access, particularly where they relate directly to the exercise of a court?s judicial power; and third, that this presumption of access must be weighed against government?s law enforcement interests and the privacy interests of affected parties.

Here, these materials were clearly ?judicial documents? because they are plainly ?relevant to the performance of the judicial function . . . of approving or disapproving wiretap applications and their extensions.? As such, there was a presumption in favor of access. As to the third factor, there were no ?sensitive law-enforcment techniques? at stake, the government had conceded that there was no more need for confidentiality in the already concluded investigation, and the privacy concerns of the individuals named had been rendered largely moot by the government?s redaction agreement with the Times or, in Spitzer?s case, by previous public disclosure. Judge Rakoff therefore ruled that the public interest in judicial records outweighed any opposing interests and granted the motion to unseal, noting, perhaps pointedly: ?there is an obvious interest in obtaining information about the origins of an investigation that led, ultimately, to the resignation of the Governor of New York.?

Notably, in reaching his conclusion, Judge Rakoff rejected the government?s assertion that ?good cause? meant anything other than a balancing test: ?there is no reason to believe that Congress intended ?good cause? to be anything other than a synonym for the balancing dictated by the aforementioned constitutional and common law principles.?

The government has appealed his decision . . .

Coda ? He Who Snoozes Loses

One month after granting the New York Times? motion to unseal the wiretap applications at issue in Spitzer 1, Judge Rakoff denied a motion by Spitzer?s attorneys to intervene in order to seek further redactions of wiretap materials in the case (Spitzer II).

Judge Rakoff denied the motion, pointing out first that because the case had been appealed, his court no longer had jurisdiction over most aspects of the case, including Spitzer?s motion. Judge Rakoff also concluded that, even if his court had retained control over the case, Spitzer?s motion would have been untimely because Spitzer had been aware all along that the government would not redact his name, and there was therefore no excuse for Spitzer?s delay in filing.

He notes ?the Times, from the moment it filed its original motion, had made it clear that it sought the wiretap materials in order to obtain further information about the Emperor?s Club investigation as it pertained to Mr. Spitzer; and the Court?s Opinion and Order of February 19, 2009, in recognition of this fact, explicitly confirmed that Mr. Spitzer?s name would not be redacted.? In light of these facts, there was ?no reasonable excuse for Spitzer?s delay? and any additional delay would ?prejudice the Times? desire to expedite the appeal so as to obtain disclosure of the materials as promptly as possible.?