Troubling decision on ‘standing’ marks departure from norm in court access cases

The concept of standing is foundational to the American legal system. In order to file a lawsuit, a person must show that she was harmed by the action she seeks to challenge in a “particularized” way. She cannot present a “generalized grievance” shared by all members of the public; it must be specific to her.

For instance, an American taxpayer cannot challenge a federal statute allowing the CIA director to sign off on the agency’s use of its budget as violating the Constitution’s requirement that “a regular Statement and Account of the Receipts and Expenditures of all public Money shall be published from time to time.” Everyone (at least in theory) is a taxpayer, so that injury is not particular to any single person. This principle of American law means that some things escape review altogether — like how the CIA spends the money Congress gives it — since no one can bring a lawsuit challenging them. But it also means that people bringing lawsuits have some skin in the game, which, the theory goes, improves the kinds of arguments they make.

That said, rights of public access to government records — those created by statutes like the Freedom of Information Act and those that come from the common law and First Amendment — are shared by all members of the public. To bring a lawsuit alleging those rights have been denied, a litigant need only show that she attempted to access some records but could not, because they were sealed by a court or a government agency denied her FOIA request, for instance. Though these rights of access are shared by all members of the public, the person seeking the records is harmed when that access is denied in a way that establishes standing to file a lawsuit.

More than two years ago, the Reporters Committee, represented by the Samuelson Law, Technology and Public Policy Clinic at UC Berkeley School of Law, filed a lawsuit seeking access to warrants the government obtained under the Stored Communications Act and the Pen Register Act, a statute that gives the government power to access electronic communications like the contents of emails. Despite the intrusive nature of the surveillance that they authorize, SCA and PRA warrants and the court records related to them are often sealed indefinitely. The reason for sealing is often unstated or itself sealed, so there is no way for the press and public to know why, how often, or against whom the government is using this authority. In its lawsuit, the Reporters Committee asked the court to treat electronic surveillance applications and orders the same way it already treats “regular” search warrants: unseal them 180 days after they’re filed, unless the government establishes that continued sealing is the only way to serve a compelling interest.

The district court rejected the Reporters Committee’s efforts to obtain these records because it did not have standing to seek them. To prove standing, the court reasoned, the Reporters Committee would have to show the court a “concrete” plan to review the records. This ruling is wrong. It contradicts precedent set by federal courts around the country and the Supreme Court and represents a fundamental misunderstanding of the requirement that litigants must have a “particularized injury” before filing a lawsuit.

The ruling is also dangerous. The right of access to court documents and other public records does not (and should not) depend on the concreteness of the requester’s planned use for them. Journalists might have to make such a pitch to their editors, but judges are not news editors.

We appealed this ruling and filed our opening brief last week. As always, stay tuned for updates!

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with RCFP Staff Attorney Grayson Clary and Technology Press Freedom Project Fellow Emily Hockett.