I’m saving up the remainder of my Hague coverage until Monday. Check back then!
NBC News has submitted a request to Judge Young to unseal the tapes and transcripts that BC had submitted to him for inspection in camera. This has, as you MIT imagine, caused some unhappiness on team McIntyre/Moloney. There is an initial question: does the District Court still have the tapes? It’s not entirely clear. In December 2011, BC delivered copies of the in camera materials to the clerk, and a few days later, the US Attorney’s Office received them. It’s not clear from the document whether the government took the court’s only copy or left the court with a set of the materials. The government’s receipt of the materials happened a few days after Judge Young’s decision, which suggests the court might not have kept the materials. On the other hand, during BC’s appeal, the First Circuit called for the sealed materials, and Judge Young reported that he had done so, and that the government had never seen the materials. Those materials were, I assume, were returned to the District Court sometime after disposition of the appeal, as the Rules of Appellate Procedure require. The whole matter is unclear, but the best guess I can make is that the government was given the only copy of the materials that were ultimately produced to the PSNI, but that all of the documents that were at issue in the BC appeal are still in the court’s possession.
If that’s true, then I think there’s some chance the materials will be unsealed. NBC’s letter is basically right. There is a presumptive public right to access to court records. And I think Judge Young, of all the judges on our bench, may be the most receptive to a First Amendment argument. That being said, this is an unusual case; it involves interviews that were meant to be kept confidential and that Judge Young already has determined were part of a legitimate academic inquiry. Moreover, we haven’t seen any real briefs filed, though I’m sure we will. So I think it’s not possible to make a prediction now about what will happen.
But whether or not NBC is successful, the PNSI is also after the remaining documents. It’s unclear whether the PSNI is after the documents in the hands of BC or in the hands of the court. But I don’t think the PSNI has a good shot at this. The MLAT does not permit fishing expeditions. Under the MLAT judicial assistance is appropriate in respect of proceedings, which I take to mean that there must be a particular proceeding or at least a particular investigation. Perhaps the PSNI will say something more specific, but given what it’s said now, I don’t think it likely that an MLAT request would be granted. But we will see.