D.C. Circuit Reverses District Court Ruling on Unsealing Electronic Surveillance Records

Last week, the D.C. Circuit reversed a lower court decision and ruled that electronic surveillance records in closed federal investigations are subject to public access. Investigative journalist Jason Leopold and the Reporters Committee for Freedom of the Press litigated for years to unseal electronic surveillance records that allow law enforcement to collect different types of electronic information for surveillance, including metadata about a telephone subscriber's activity or cell site location information. The lower court incorrectly determined that administrative burden to providing public access to these seal records was enough to justify the interminable sealing of these records. But the D.C. Circuit reversed the lower court's decision stating "although administrative burden is relevant to how and when documents are released, it does not justify precluding release forever…Production may be time-consuming, but time-consuming is not the same thing as impossible." The D.C. Circuit noted that providing public access to judicial records like the electronic surveillance records at issue "is a fundamental element of the rule of law" and "is the duty and responsibility of the Judicial Branch." EPIC is currently litigating a case against the Department of Justice seeking the public release of information about the agency's collection of cell site location information through "§ 2703(d) orders" and warrants. The case is EPIC v. DOJ, No. 18-1814 (D.D.C.)