The case is United States v. County of Erie, decided on August 18. Judges love First Amendment cases, and this is a classic First Amendment case. The principal question, though is more mundane: are the reports judicial documents and, if so, does the public have the right to them? The Court of Appeals finds they are judicial documents because they play a significant role in allowing the trial court to know if the County is in compliance with its obligations under the settlement.
We then apply the usual balancing test to decide if the pubic has a right to review these documents. "To determine whether this First Amendment right attaches in circumstances such as the one before us, we look, first, to whether 'experience and logic' support making the document available to the public. That is, we consider (a) whether the documents 'have historically been open to the press and general public' (experience) and (b) whether 'public access plays a significant positive role in the functioning of the particular process in question' (logic). Once a First Amendment right of access to judicial documents is found, the documents 'may be sealed [only] if specific, on the record findings are made demonstrating that closure is essential to preserve higher values and is narrowly tailored to serve that interest.' And, '[b]road and general findings by the trial court . . . are not sufficient to justify closure.'”
The Second Circuit (Calabresi, Parker and Lynch) says NYCLU can review the reports. We know the Court will rule this way even before it applies the complicated balancing test above. That's because the Court prefaces the decision with language extolling the virtues of public access to court records. It says:
The notion that the public should have access to the proceedings and documents of courts is integral to our system of government. To ensure that ours is indeed a government of the people, by the people, and for the people, it is essential that the people themselves have the ability to learn of, monitor, and respond to the actions of their representatives and their representative institutions. This principle, as it applies to courts, has a long history.With language like this, do you really think the Second Circuit will allow the documents to remain under seal? The County does not offer compelling reasons to deny public access to these records. The County "posits a supervening need for frank, and hence confidential, discussions among the parties. In doing so, it analogizes this case to ones involving settlement negotiations. But that argument ignores the crucial fact that, in the case before us, a settlement has already been reached." Moreover, the Court says, the issues raised by these documents raise matters of high public interest. "As the Supreme Court succinctly put it, the 'conditions in this Nation’s prisons are a matter that is both newsworthy and of great importance.'”