Cable News Network, Inc. v. Federal Bureau of Investigation

1
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 15, 2020 Decided January 8, 2021
No. 19-5278
CABLE NEWS NETWORK, INC.,
APPELLEE
v.
FEDERAL BUREAU OF INVESTIGATION,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-01167)
Thomas Pulham, Attorney, U.S. Department of Justice,
argued the cause for appellant. With him on the briefs was
Sharon Swingle, Attorney. Joseph H. Hunt, Assistant
Attorney General, entered an appearance.
Charles D. Tobin argued the cause for appellee. With
him on the brief were Matthew E. Kelley and Maxwell S.
Mishkin.
Bruce D. Brown and Katie Townsend were on the brief
for amicus curiae Reporters Committee for Freedom of the
Press, et al. in support of appellee. Caitlin Vogus and Daniel
J. Jeon entered appearances.

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Before: GARLAND*, MILLETT, and WALKER, Circuit
Judges.
Opinion for the Court filed by Circuit Judge WALKER.
WALKER, Circuit Judge: CNN sued the FBI under the
Freedom of Information Act for access to memos that former
FBI Director James Comey wrote. The FBI responded by
filing a redacted declaration by Deputy Assistant Director
David Archey explaining why it redacted the Comey Memos.
Later, after the FBI disclosed most of the Comey Memos, the
district court ordered the FBI to disclose the unredacted Archey
Declaration under the common-law right to access judicial
records. For forty years, this Court has weighed that right’s
competing interests using a six-factor test first articulated in
United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980).
Because we agree with the FBI that the district court
misapplied Hubbard, we vacate and remand for the district
court to reapply Hubbard’s factors.
I.
In May 2017, President Donald Trump fired FBI
Director James Comey. Soon after, the New York Times
reported that Comey had taken notes following his meetings
with President Trump.1 Other reporters rushed to get their
hands on those notes, soon dubbed “the Comey Memos.”
When the FBI refused to disclose them, CNN and other news
* Judge Garland was a member of the panel at the time this case was
argued but did not participate in the final disposition of the case.
1 See Michael S. Schmidt, Comey Memo Says Trump Asked Him to
End Flynn Investigation, NEW YORK TIMES, May 16, 2017.

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outlets sued under the Freedom of Information Act.2
Under FOIA, an agency may withhold documents if an
exemption applies. 5 U.S.C. § 552(b). Initially, the FBI
relied on a FOIA exemption based on Special Counsel Robert
Mueller’s investigation of Russia’s interference in the 2016
presidential election. Because Comey was a witness in that
ongoing probe, the FBI said his notes were exempt from
disclosure. To explain its position, and over CNN’s objection,
the FBI filed an ex parte, in camera declaration by Deputy
Assistant Director David Archey, who supervised all FBI
employees working on the Russian interference investigation.
For a while, the district court agreed with the FBI. It
ruled that the FBI could continue withholding the Comey
Memos at least until Mueller’s investigation ended. CNN v.
FBI, 293 F. Supp. 3d 59, 65 (D.D.C. 2018). The district court
didn’t address the other FOIA exemptions the FBI asserted.
After CNN appealed, but before its appeal was decided,
the Department of Justice gave redacted Comey Memos to
members of Congress, who sent them to journalists, who
published them. This Court then remanded the case for
reconsideration “in light of subsequent statements by
government officials that release of the memoranda would no
longer adversely impact any ongoing investigation.” CNN v.
FBI, No. 18-5041, 2018 WL 3868760, at *1 (D.C. Cir. Aug. 8,
2018) (per curiam).
When the parties returned to district court, they again
moved for summary judgment. Recall that in the first round
of summary judgment briefing over the Comey Memos, the
2 The others were Gannett Satellite Information Network LLC; Brad
Heath; James Madison Project; Lachlan Markay; Garrett Graff;
Judicial Watch, Inc.; Freedom Watch, Inc.; and The Daily Caller
News Foundation. The district court consolidated the cases. CNN
is the only remaining plaintiff.

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FBI had filed the Archey Declaration ex parte and in camera,
over CNN’s objection. This time, CNN asked for the entire
Archey Declaration. Again, the FBI balked, but it did file a
redacted public version of the Archey Declaration.
Outside events again overtook the litigation. In April
2019, Mueller completed his investigation and released the
long-awaited Mueller Report. The district court then granted
summary judgment in part and denied it in part to both sides.
Relevant here, it found that the FBI properly redacted the
Comey Memos to protect intelligence sources and methods,
but CNN had a common-law right to access the forty-or-so
words still redacted from the Archey Declaration. CNN v.
FBI, 384 F. Supp. 3d 19, 31-32, 44 (D.D.C. 2019); Tr. Oral
Arg. 16:17 (Sept. 15, 2020).
Now, the FBI appeals the district court’s unsealing
order.3 No one appeals the district court’s decision on the
Comey Memos. Thus, the only question before us is whether
the district court erred in ordering the FBI to disclose the entire
Archey Declaration.4
3 We assume without deciding that FOIA and the National Security
Act do not preempt the common law when a document is filed ex
parte and in camera in FOIA litigation to persuade the Court not to
release FOIA materials.
4 CNN asks us to consider the First Amendment right of access as an
alternative ground for affirming the unsealing order. We decline to
reach that issue. See In re Leopold to Unseal Certain Electronic
Surveillance Applications and Orders, 964 F.3d 1121, 1126-27
(D.C. Cir. 2020) (“In light of the result we reach with respect to the
common law, we avoid unnecessarily passing on a constitutional
question of first impression in this circuit.”).

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II.
A.
We review de novo a district court’s determination that
a document is a judicial record. League of Women Voters of
the United States v. Newby, 963 F.3d 130, 135 (D.C. Cir. 2020).
Although we review an unsealing order for abuse of discretion,
we review de novo whether the district court “applied the
proper legal standard in exercising its discretion.” In re
Leopold to Unseal Certain Electronic Surveillance
Applications and Orders, 964 F.3d 1121, 1131 (D.C. Cir.
2020) (cleaned up).
B.
The FBI argues that the Archey Declaration isn’t a
judicial record. Even assuming the FBI didn’t forfeit that
argument (as CNN contends), we disagree.
“[W]hether something is a judicial record depends on
the role it plays in the adjudicatory process.” SEC v.
American International Group, 712 F.3d 1, 3 (D.C. Cir. 2013)
(cleaned up). If the goal in filing a document is to influence a
judge’s decisionmaking, the document is a judicial record.
This Court has even said that “every part of every brief filed to
influence a judicial decision qualifies as a judicial record.”
League of Women Voters, 963 F.3d at 136 (cleaned up).
Here, the purpose and the effect of the Archey
Declaration was “to influence a judicial decision.” Id. The
whole point of filing the Archey Declaration was to help the
FBI demonstrate to the court the national security interests at
stake in the case. And it worked. The district court
acknowledged having read the Archey Declaration when it
granted the FBI partial summary judgment the first time.
CNN, 293 F. Supp. 3d at 67. And the district court did so

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again in its second summary judgment decision. See CNN,
384 F. Supp. 3d at 42 (“Although the Court sees little public
value in the specific information that remains redacted, there is
enormous public interest in the Comey Memos and documents
related to their disclosure.”).
In sum, we agree with the district court that the Archey
Declaration is a judicial record.
C.
Because the Archey Declaration is a judicial record, we
apply a “strong presumption” in favor of disclosing it. In re
Leopold, 964 F.3d at 1127 (quoting Hubbard, 650 F.2d at 317).
Accessing judicial records is “fundamental” to “the rule of
law” and “important to maintaining the integrity and
legitimacy of an independent Judicial Branch.” 964 F.3d at
1127 (quoting MetLife, Inc. v. Financial Stability Oversight
Council, 865 F.3d 661, 663 (D.C. Cir. 2017)) (cleaned up).
That said, the right “is not absolute.” Nixon v. Warner
Communications, Inc., 435 U.S. 589, 598 (1978); MetLife, 865
F.3d at 663; American International Group, 712 F.3d at 3; In
re Motions of Dow Jones & Co., 142 F.3d 496, 504 (D.C. Cir.
1998); In re Reporters Committee for Freedom of the Press,
773 F.2d 1325, 1333 (D.C. Cir. 1985) (Scalia, J.); In re
National Broadcasting Co., 653 F.2d 609, 613 (D.C. Cir.
1981); Hubbard, 650 F.2d at 316 (quoting Nixon, 435 U.S. at
598). Rather, as we have repeatedly recognized, competing
interests may outweigh the strong presumption favoring
disclosure. In re Leopold, 964 F.3d at 1127; MetLife, 865
F.3d at 665-66; see American International Group, 712 F.3d at
3.
We weigh these competing interests by applying the
Hubbard factors, which are:

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(1) [T]he need for public access to the
documents at issue; (2) the extent of previous
public access to the documents; (3) the fact that
someone has objected to disclosure, and the
identity of that person; (4) the strength of any
property and privacy interests asserted; (5) the
possibility of prejudice to those opposing
disclosure; and (6) the purposes for which the
documents were introduced during the judicial
proceedings.
In re Leopold, 964 F.3d at 1131 (quoting MetLife, 865 F.3d at
665); see also Hubbard, 650 F.2d at 317-21. While we
acknowledge that this Circuit has not previously given the
district courts sufficient guidance regarding the meaning of
those factors, we part ways with how the district court’s
thoughtful opinion explained and applied them in this case.
1.
We begin with the first and second Hubbard factors: (1)
the need for public access to the information redacted from the
Archey Declaration, and (2) the extent of previous public
access to that information. In re Leopold, 964 F.3d at 1131.
The district court said both factors favored CNN. For
the first factor, it said, “Although the Court sees little public
value in the specific information that remains redacted, there is
enormous public interest in the Comey Memos and documents
related to their disclosure.” CNN, 384 F. Supp. 3d at 42. For
the second factor, although the district court presumed that the
redacted information “is somehow distinct from what is in the
public record[,]” it emphasized that most of the document had
already been released, and then faulted the FBI for “offer[ing]
no explanation or argument here.” Id. at 42-43.
We respectfully disagree with how the district court

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applied these factors. To be sure, there is — or at least was —
enormous public interest in the Comey Memos. That’s why
CNN filed this lawsuit in the first place. But there is “little
public value in the specific information that remains redacted”
in the Archey Declaration. Id. at 42.
A district court weighing the first factor should
consider the public’s need to access the information that
remains sealed, not the public’s need for other information
sought in the overall lawsuit. So, here, the proper inquiry is
whether the public needs to access the remaining information
redacted from the Archey Declaration, not whether the public
needs to access the Comey Memos as a whole or even the
Archey Declaration as a whole.
Our discussion of the second factor mirrors the first. A
district court weighing the second factor should consider the
public’s previous access to the sealed information, not its
previous access to the information available in the overall
lawsuit. The FBI says that the sealed information hasn’t been
previously disclosed, and there’s no indication that it has. See
Tr. Oral Arg. 16:10-11 (“But the public has never, nor [has]
CNN as a FOIA litigant[,] had access to this specific
information.”). Here, the appropriate question is whether the
public has previously accessed the remaining information
redacted from the Archey Declaration, not whether the
government has previously disclosed other information from
that same document.
2.
Next up are the third, fourth, and fifth Hubbard factors:
“(3) the fact that someone has objected to disclosure, and the
identity of that person; (4) the strength of any property and
privacy interests asserted; [and] (5) the possibility of prejudice
to those opposing disclosure[.]” In re Leopold, 964 F.3d at
1131 (quoting MetLife, 865 F.3d at 665).

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For the third factor, the district court said, “Given that
[the FBI] is an agency tasked with national security, the Court
takes this objection seriously[,]” though its objection “does not
have the same strength as a third-party objection.” CNN, 384
F. Supp. 3d at 43 (cleaned up). It called the fourth and fifth
factors “a bit of a mixed bag.” Id.
Again, we part ways with how the district court applied
these factors. In the national security context, the FBI is no
ordinary agency. The National Security Act requires the FBI
to keep intelligence sources and methods confidential. 50
U.S.C. § 3024(i).
Thus, although no third party objected to disclosure
here — which cut in favor of disclosure in Hyatt v. Lee, 251 F.
Supp. 3d 181, 185 (D.D.C. 2017) — the third parties with the
most acute interest in the Archey Declaration’s redactions are
the intelligence sources whose lives may depend on those
redactions. Those intelligence sources would out themselves
by objecting to CNN’s motion, risking the very harm they seek
to avoid. To guard their anonymity and to incentivize future
sources to cooperate, the FBI has “very broad authority to
protect all sources of intelligence information from
disclosure.” Sims, 471 U.S. at 168-69.
Along those same lines, a district court weighing the
fourth Hubbard factor should consider whether secrecy plays
an outsized role in the specific context. In this context, the
National Security Act reflects that Congress is “well aware of
the importance of secrecy in the intelligence field.” Id. at 172.
That secrecy’s importance is hard to overstate. See id. at 172
n.16 (“Secrecy is inherently a key to successful intelligence
operations.”); see also Hubbard, 650 F.2d at 315-16 (noting
that courts deny public access “to guard against risks to
national security”); cf. “Loose Lips Sink Ships” (circa 1941-
1945).

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Likewise, a district court weighing the fifth Hubbard
factor should consider the dire consequences that may occur if
an agency discloses its intelligence sources and methods:
“Even a small chance that some court will order disclosure of
a source’s identity could well impair intelligence gathering and
cause sources to close up like a clam.” 471 U.S. at 175
(cleaned up); see also Tr. Oral Arg. 20:1-3 (sources “may be
retaliated against if they’re uncovered”).
3.
Last, we arrive at the sixth Hubbard factor: “the
purposes for which the [document was] introduced during the
judicial proceedings.” In re Leopold, 964 F.3d at 1131.
Although the Hubbard court called this factor the most
important element, it did so only in the context of that case.
See 650 F.2d at 321 (“The single most important element in our
conclusion that the proper balance has not been struck in this
case is the fact that the documents at issue were introduced by
the defendants for the sole purpose of demonstrating the
unlawfulness of the search and seizure.”) (emphasis added).
In Hubbard, it was “most important” that the sealed documents
“were not specifically referred to or examined upon during the
course of” the original criminal proceedings. Id. at 316, 321.
Rather, their “only relevance to the proceedings derived from
the defendants’ contention that many of them were not relevant
to the proceedings[.]” Id. at 316 (emphasis added).
In other words, when the sixth factor highlights the fact
that a sealed document didn’t affect a judicial decision, it can
be the “most important” element cutting against disclosure —
by making a multi-factored analysis more straightforward than
usual. And the reverse can also be true: When a sealed
document is considered as part of judicial decisionmaking, the
sixth factor will oftentimes carry great weight. But here,
given especially the national security context of the sealed

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information, the sixth factor doesn’t outweigh other factors
with strong claims to the label of “most important” in this case.
In this case, the role of the information in the court’s
decisionmaking seems to cut both ways. On the one hand, the
Archey Declaration was submitted to influence a judicial
decision, and the judge relied on that declaration in denying
access under FOIA. On the other hand, the fact that it was an
in camera filing of the type that can be so vital to the proper
resolution of FOIA litigation — in which the government
necessarily had to disclose information to the court for the very
purpose of keeping it secret — cuts against disclosure.
* * *
We emphasize that our ruling does not mean that the
Archey Declaration should remain redacted. See League of
Women Voters, 963 F.3d at 136. Rather, we remand for the
district court to reapply the Hubbard factors “in light of the
relevant facts and circumstances of [this] particular case.”
Nixon, 435 U.S. at 599.
We therefore vacate and remand to the district court for
proceedings consistent with this opinion.

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