Written by Tom Casazzone, CMLP Intern

A federal district court in Arizona has denied a request filed by the Associated Press to reveal the names of Major League Baseball players allegedly implicated in the use of performance-enhancing drugs. In this case, which has received extensive coverage in the New York Times and elsewhere, Jason Grimsley, a former major league pitcher, supplied a federal agent with the names of ballplayers that he said used performance-enhancing drugs in the past. A federal agent used these names in an affidavit to support a warrant to search Grimsley's home last year. When the affidavit and warrant were made public in June 2006, the players' names had been blacked out. The A.P. then requested access to the entire affidavit, asking the court to reveal the names that were blacked out.

The A.P. claimed a First Amendment and common law right of access to the original affidavit. According to the Supreme Court, there is a general presumption of access to court filings, and the presumption "may be overcome only by an overriding interest based on findings that closure is essential to preserve higher values and is narrowly tailored to serve that interest." Press-Enterprise Co. v. Superior Court, 464 U.S. 501, 511 (1986). Courts therefore must apply a balancing test to determine whether the government's interest in secrecy outweighs the public interest in disclosure.

The A.P. argued that the privacy interests of the individuals named in the affidavit were insufficient to overcome the right of the public to access court filings. Additionally, the news agency claimed that the government shared the original affidavit (without blacked-out names) to former Senator George Mitchell, who is leading Major League Baseball's steroid investigation. The A.P. maintained that the court should consider this prior disclosure as diminishing the government's claim to maintain secrecy.

In his opinion, Magistrate Judge Edward C. Voss III concluded that Mitchell did not see the original affidavit and that it would therefore not consider this alleged disclosure in its balancing test. What remained in support of the A.P.'s argument was that knowledge of the players' names was newsworthy and in the public interest.

Judge Voss rejected the A.P.'s claim, citing the government's interest in the pending investigation and the named players' privacy interests as outweighing the public interest in disclosure of their identity. The court relied heavily on a Ninth Circuit case, Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989), which similarly dealt with access to affidavits supporting the issuance of search warrants in ongoing investigations. Judge Voss indicated that there is no historical tradition of open search warrant proceedings and materials. He also emphasized the damage to the criminal investigatory process that could result from open warrant proceedings:

This court believes that the most important factor driving the Times Mirror decision was the conclusion that the investigation was ongoing. The court observed that openness would potentially "frustrate the criminal investigation" and "jeopardize the integrity of the search for truth." . . . This court believes the fact that some indictments have issued in this investigation does not act to obviate the need to preserve the redacted material. The indictments thus far relate to the "supply" side of the problem. What remains for possible prosecution is the alleged illegal possession and use of these substances. In this area, no indictments have issued and the investigation continues.

The court maintained, without specific findings of fact, that disclosure of the redacted names could adversely affect cooperation, lead to the compromise of investigations of the named individuals, cut off leads that might be developed from the undisclosed information, and result in the destruction of evidence.

Admittedly, the court was constrained by 9th Circuit precedent, but Judge Voss made no effort to analyze whether the specific facts in this case triggered similar practical concerns as those implicated by the facts in Times Mirror. The court's strong emphasis on the ongoing status of the investigation and the abstract quality of Judge Voss's reasoning create the impression that a First Amendment or common law right of access to sensitive materials might never be applicable during the course of an ongoing investigation.

This result is clearly bad for the A.P. in this case. But this kind of blanket rule, if adopted by other courts, also would unnecessarily frustrate the efforts of mainstream and citizen journalist to uncover the truth about important matters of public concern and to monitor government functions prone to abuse.