Federal appeals court orders release of court documents in terrorism case

A federal appeals court upheld the public’s right to access court documents in a case in which the prosecutors allege that a charitable organization provided support to Hamas, listed as a terrorist organization by the U.S. government. -db

The Reporters Committee for Freedom of the Press
October 22, 2010
By Daniel Skallman

A federal appeals court Wednesday ordered the disclosure of a Texas district court ruling that had been filed under seal, highlighting in its written opinion the importance of public access to court proceedings and documents.

Circuit Judge Emilio M. Garza of the U.S. Court of Appeals in New Orleans (5th Cir.) wrote the unanimous opinion for the three-judge panel, saying that court decisions “must be made in light of the ‘strong presumption that all trial proceedings should be subject to scrutiny by the public,’” and that “a court must use caution in exercising its discretion to place records under seal.”

The appeal involves a case in the U.S. District Court for the Northern District of Texas, U.S. v. Holy Land Foundation, in which the Justice Department charged members of the Holy Land Foundation for Relief and Development in a criminal conspiracy to provide support to Hamas, a designated Palestinian terrorist organization.

In an attachment to their pre-trial briefing in the case, which was filed publicly, government prosecutors named several groups as alleged co-conspirators, including the North American Islamic Trust, a Muslim non-profit organization. The organization asserted in the district court that the government violated its Fifth Amendment rights by publicly including the organization on the list of co-conspirators. According to Garza’s written opinion, the district court agreed the organization’s rights were violated, but declined to order the various forms of relief North American Islamic Trust requested, instead ordering the attachment to the pre-trial brief placed under seal, along with the court’s ruling and all related records.

The district court’s decision to seal its ruling was unknown to the public until North American Islamic Trust later appealed the seal order and requested that its name be expunged from the court opinion, according to Josh Gerstein, a reporter for Politico.

In the appellate court’s decision, Garza wrote that although the Texas court correctly ruled that North American Islamic Trust’s constitutional rights were violated, it erred in its decision to file the order under seal because its action prevented the organization from clearing its name in the public eye and was inconsistent with the public’s general right of access to the courts.

“Because the power to seal court records must be used sparingly in light of the public’s right to access, because NAIT’s interest in mitigating its reputational injuries favored disclosure, and because there is no countervailing Government interest in nondisclosure, the district court’s decision to seal its opinion . . . constituted an abuse of its discretion,” the appellate court wrote.

Garza added that although the district court may have been trying to shield North American Islamic Trust from further reputational harm by sealing its written opinion, “its effect was to leave NAIT hamstrung in its ability to mitigate the damage done by its public identification as a possible coconspirator . . . NAIT was publicly identified in [the pre-trial briefing] for over two years, and the public took note.”

Although the appellate court granted some of the relief sought by North American Islamic Trust, it declined to order the district court to expunge the organization’s name from the court record. The court also declined to vacate part of the district court’s ruling that North American Islamic Trust found objectionable, stating that the appellate court’s role “is to review” a district court’s decision, “not to edit it.”

Houston media attorney Joseph Larson said that it is particularly refreshing to see a decision in favor of public access to court documents from the U.S. Court of Appeals in New Orleans. Few cases “have come out of the Fifth Circuit that underscore the public’s right of access to court records,” Larson said. “It was very good to see the Fifth Circuit use strong language in their opinion that [members of] the public are not required to simply receive a conclusion while the records themselves stay under seal, that they’re entitled to see the decision process.”

Gerstein said that after he learned of the seal order and the abnormal secrecy surrounding the case, he wrote a letter in May to the court requesting that the documents be unsealed.

“I was just concerned that pretty much all the substantive briefs that had been filed in connection with the case, as well as all the records of the court’s decision below that was being appealed, were all completely under seal. It just didn’t seem appropriate to me,” given that the briefs were originally filed publicly, Gerstein said.

“It just seems weird, in a country that normally has open courts, that the decision resolving that issue and the briefs to an appeals court about that issue would be completely secret,” he said.

Although the court rejected last month his request to unseal the documents, ordering that oral arguments take place in a closed courtroom, Gerstein’s request itself may have brought the unusual nature of district court’s seal order to the federal judges’ attention.

“Hopefully at least I alerted the judges to the fact that the case was of significant interest to the public [and that] they ought to be transacting [these issues] in public, instead of behind closed doors,” he said.

Gerstein said he was pleased with the court’s decision Wednesday because it highlights “the importance of keeping the court records public whenever it’s feasible to do that.” However, he found the lengthy and secretive process that was required to resolve the issue to be somewhat alarming.

“I don’t understand why the process over the last three years or so of litigating this out was so opaque,” he said.

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