Pro Publica, Inc. v. Butler et al

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
PRO PUBLICA, INC.,
Plaintiff,
v.
MAJOR GENERAL DAVID J.
BLIGH; JOHN PHELAN; EARL G.
MATTHEWS; and PETE
HEGSETH,
Defendants.
Case No.: 22-cv-1455-BTM-KSC
ORDER ON ARTICLE 32
REPORTS
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In an order entered September 12, 2025, the Court granted in part and
denied in part the parties’ cross motions for summary judgment. 	The Court held
that the First Amendment right of access applies to filings and documentary
evidence in Article 32 (preliminary) hearings and in full court-martial proceedings.
The question of whether Article 32 reports fall within the First Amendment right of
access was not extensively briefed. The issue has now been briefed by the parties
in anticipation of the entry of final judgment. 	In this order, the Court holds that
Article 32 reports fall within the First Amendment public right of access. The Court
will thus enter final judgment accordingly.
Article 32 hearings are preliminary hearings used to determine whether
charges should be filed against the accused servicemember. They are in essence
preliminary and public hearings similar to Federal Rule of Criminal Procedure 5.1.
See United States v. Davis, 64 M.J. 445, 446-47 (C.A.A.F. 2007) (“The procedures
for an Article 32 hearing include representation of the accused by counsel, the right
to present evidence, and the right to call and cross-examine witnesses.”); United
States v. Davis, 62 M.J. 645, 647 (A.F.C.C.A. 2006) (“It is settled that Article 32
investigations are presumptively public hearings.”).
Except in unusual circumstances, Article 32 hearings are presided over by
an “impartial judge advocate.” 	R.C.M. 405(e)(1)(A). 	“The preliminary hearing
officer shall make a timely written report of the preliminary hearing.” 	R.C.M.
405(m)(1). Article 32 reports contain, among other things, the names of counsel,
a summary of the evidence, a recommendation as to whether the charges should
be amended, a statement of whether there is probable cause and whether there is
jurisdiction, and a recommendation “as to the disposition that should be made of
the charges and specifications in the interest of justice and discipline.” 	R.C.M.
405(m)(2). 	A copy of the Article 32 report must be given to the accused. 	R.C.M.
405(m)(4).
The First Amendment generally grants the public the right to attend criminal
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proceedings and to access the filings in such proceedings. 	See, e.g., Waller v.
Georgia, 467 U.S. 39, 44 (1984) (noting that “the press and public have a qualified
First Amendment right to attend a criminal trial”); Forbes Media LLC v. United
States, 61 F.4th 1072, 1077 (9th Cir. 2023) (explaining that the First Amendment’s
right of public access generally applies to criminal proceedings and to filings in
such proceedings). The scope of the public right of access is determined by a two-
part test: courts look first to “experience,” that is, whether historically the public
was granted the access at issue, and second to “logic,” that is, whether the right
of access significantly furthers the process at issue. 	See Press-Enterprise Co. v.
Superior Court, 478 U.S. 1, 8-9 (1986).
Under that test, Article 32 reports must be available to the press and public
in the usual course. 	Such reports may be redacted or withheld only when
consistent with the First Amendment. The right of access applicable to Article 32
hearings must also attach to the report because it is fundamentally part of the
hearing. 	It summarizes the evidence and assesses whether the charges can be
proven at a full court-martial. 	There is no valid basis to keep the report from the
public. 	See, e.g., Nixon v. Warner Communications, 435 U.S. 589, 597 (1978)
(“[C]ourts of this country recognize a general right to inspect and copy public
records and documents, including judicial records and documents.”); Oregonian
Publishing Co. v. United States District Court, 920 F.2d 1462, 1466 (9th Cir. 1990)
(“[T]he press and public have a qualified right of access to plea agreements and
related documents under the First Amendment.”); Seattle Times Co. v. United
States District Court, 845 F.2d 1513, 1517 (9th Cir. 1988) (“[T]he press and public
have a right of access to pretrial release proceedings and documents filed
therein.”).
The Government’s reliance on the deliberative process privilege is not
persuasive. 	“[T]he 	deliberative 	process 	privilege 	shields 	from 	disclosure
‘documents 	reflecting 	advisory 	opinions, 	recommendations 	and 	deliberations
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comprising part of a process by which governmental decisions and policies are
formulated.’” United States Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261,
267 (2021) (quoting NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 150 (1975)).
“[A] court must evaluate the documents ‘in the context of the administrative
process which generated them.’” 	Id. at 269 (quoting Sears, 421 U.S. at 138)).
The privilege does not apply to Article 32 reports because they are required,
given to the defendant, and written by impartial judges. The context here is not a
deliberative process at all but rather an impartial evaluation of whether a criminal
matter should proceed. 	The privilege is thus inapplicable. 	Further, the privilege
has no applicability because candor is already a necessary aspect of the report.
See Id. at 267 (explaining that the deliberative process privilege is meant to
“encourage candor” and to “blunt[] the chilling effect that accompanies the prospect
of disclosure”). 	Because Article 32 reports must be given to the accused, the
“prospect of disclosure” is a forgone conclusion. See id. The deliberative process
privilege simply does not apply to documents, such as an Article 32 report, that will
be released to persons not responsible for the deliberation. 	Moreover, the
Government’s description of the report as “predecisional” and “advisory” does not
change the analysis. 	See Transgender Law Ctr. v. Immigration & Customs Enf’t,
46 F.4th 771, 783 (9th Cir. 2022) (“[S]imply designating a document as a draft does
not automatically make it privileged under the deliberative process privilege.”
(citation and quotation marks omitted)).
Last, any attempt by the Government to withhold filings under the Freedom
of Information Act (FOIA), the Privacy Act, or another statute must of course be
consistent with the First Amendment. 	See generally Jacobs v. Schiffer, 204 F.3d
259, 265 (D.C. Cir. 2000) (explaining that the First Amendment is “superior” to
“statutory and regulatory provisions”). 	The Court notes that FOIA’s purpose is to
increase public access to government records. 	See Milner v. Dep’t of the Navy,
562 U.S. 562, 571 (2011) (“We have often noted the Act’s goal of broad disclosure
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and insisted that the exemptions be given a narrow compass.” (citation and
quotation 	marks 	omitted)). 	The 	First 	Amendment 	right 	of 	access 	to 	court
documents requires disclosure notwithstanding an exemption under FOIA. 	See,
e.g., In re New York Times Co., 828 F.2d 110, 115 (2d Cir. 1987) (“Obviously, a
statute cannot override a constitutional right.”).
In sum, the final judgment will require compliance with the First Amendment,
and the First Amendment requires disclosure of Article 32 reports subject to
permissible redactions or withholding.
IT IS SO ORDERED.
Dated: 	February 9, 2026
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