CNN v. FBI

Amicus brief filed by the Reporters Committee for Freedom of the Press and 29 media organizations

Court: U.S. Court of Appeals for the District of Columbia Circuit

Date Filed: April 10, 2020

Update: In an opinion issued on Jan. 8, 2021, the U.S. Court of Appeals for the District of Columbia Circuit vacated the district court’s order unsealing the Archey Declaration in full. The Court remanded the case to the district court.

Background: In June 2017, shortly after Robert Mueller was appointed as the special counsel to lead the investigation into Russian interference in the 2016 presidential election, CNN filed a Freedom of Information Act lawsuit against the FBI after the bureau refused to release memos written by former FBI Director James Comey detailing his conversations with President Donald Trump. The memos document the buildup to Comey’s dismissal, a core issue in the 2019 Mueller Report on Russian interference in the 2016 election.

At the district court, both parties filed cross-motions for summary judgment, with the FBI submitting several sealed, ex parte declarations as it sought to convince the court that the memos should remain secret. The district court granted the government’s initial summary judgment motion. After CNN appealed this ruling to the D.C. Circuit, the Justice Department turned over redacted versions of the Comey memos to Congress, and the memos became public through disclosures to the news media. In light of these disclosures, the D.C. Circuit remanded the case back to the district court.

On remand, the FBI and CNN both cross-moved for summary judgment again, seeking a ruling as to whether the FBI could withhold two dozen redacted portions of the memos under various FOIA exemptions. CNN also filed a motion to unseal the declarations filed in support of the FBI’s first motion for summary judgment, which the district court had reviewed in private at the beginning of the lawsuit. CNN argued that the common law and First Amendment rights of access to judicial records required the declarations to be unsealed.

While CNN’s motion to unseal was pending, Special Counsel Mueller’s report was released, and the government released portions of the previously-withheld declarations. However, it continued to redact portions of a declaration filed by an FBI special agent, known as the Archey Declaration. In response to CNN’s motion to unseal, the district court ordered the full unsealing of the Archey Declaration.

The FBI has appealed the district court’s order unsealing the Archey Declaration in full. It relies on the National Security Act and FOIA Exemption 3 to argue that portions of the Archey Declaration should remain redacted.

Our Position: The appellate court should affirm the district court’s conclusion that the Archey Declaration must be fully unsealed, pursuant to the common law right of access.

• The public has a strong interest in the Comey memos and the government’s justification for withholding them.
• Reporters and the public rely on unsealed court records, including in FOIA cases, to understand the judiciary’s decision-making process.
• Access to the Archey Declaration is governed by common law and First Amendment rights of access, not FOIA.

Quote: “The FBI’s suggestion that a FOIA exemption displaces the common law right of access to court records threatens to keep certain judicial documents out of the public’s reach and radically undermines the common law’s purpose of fostering trust in the judiciary.”

Related: Over the past year, a number of lawsuits involving the FBI have illuminated the singular tension between national security and the free press. Last November, a district court judge in Northern California ordered the agency to expunge records related to a website’s editor, raising concerns about the agency’s surveillance of journalists.

The Reporters Committee and the Associated Press are currently engaged in a six-year-long court battle over the FBI’s refusal to comply with FOIA requests related to agents’ impersonation of journalists.

And in the wake of a 2019 lawsuit, documents obtained by the Reporters Committee revealed that the FBI knew that the subject of a San Francisco police raid was a reporter. Disclosed documents from that case do not clarify whether government officials followed Justice Department protocol for executing searches on journalists, a rare occurrence that poses a sharp threat to press freedom and reporters’ right to protect their unpublished information from state intervention.