Advance Local Media, LLC v. Commissioner, Alabama Department of Corrections
Opinion
This appeal concerns the common law right of access to documents upon which a court has relied to decide issues in a case. In the underlying suit, death row inmate Doyle Lee Hamm brought an as-applied challenge under
I. Factual and Procedural Background
Doyle Lee Hamm was sentenced to death in 1987 and, after a series of unsuccessful direct and collateral challenges to his sentence, was set to be executed in February 2018. In December 2017, Hamm filed an action in the Northern District of Alabama under
In January 2018, Alabama moved for summary judgment. The district court ordered expedited briefing and scheduled an evidentiary hearing for January 31 to address Alabama's dispositive motions and Hamm's request for injunctive relief. After the court entered a protective order to keep the lethal injection protocol confidential, Alabama provided a copy of the protocol to the court for in camera review and gave Hamm a redacted copy of the protocol. Likewise, the portion of the evidentiary hearing that focused on the protocol was conducted in camera . Both parties and the court discussed the contents of the lethal injection protocol, but neither party moved to admit the protocol into evidence or attach it as an exhibit to any motion or pleading.
Less than three weeks before Hamm was set to be executed, the district court denied Alabama's motion for summary judgment and temporarily stayed Hamm's execution. In its publicly available orders denying summary judgment, the district court summarized Alabama's lethal injection protocol and discussed how the protocol applied to Hamm's specific medical conditions. This Court vacated the district court's stay but directed the court to obtain an independent medical examination and make any concomitant factual findings by February 20-two days before Hamm's execution date. The district court held another in camera hearing on February 16 to hear testimony from the independent medical examiner. The examiner testified that Hamm had accessible and usable veins in his lower extremities.
Four days later, the district court denied Hamm's request for a preliminary injunction, summarizing the contents of the February 16 hearing and reasoning that Alabama's lethal injection protocol, as applied to Hamm, did not present "sufficiently imminent dangers" and was not likely to result in serious illness or needless suffering that would violate the Eighth Amendment. Hamm appealed. This Court affirmed the district court but ordered Alabama to have ultrasound technology and a doctor at the execution.
On the day of his execution-February 22, 2018-Hamm petitioned the Supreme Court for a stay and writ of certiorari. His petition was denied. Alabama then attempted to execute Hamm, but after several unsuccessful efforts to insert a needle, *1165 called off the execution an hour before its midnight deadline. The botched execution attempt received national media coverage.
Hamm filed a second amended complaint describing Alabama's failed efforts to execute him, but both parties agreed to dismiss these claims (some with prejudice and some without prejudice) on the same day that the claims were filed. Two days later, the district court dismissed the action. On March 28, the same day the court dismissed the action, Alabama Media Group, 1 the Montgomery Advertiser, and the Associated Press (collectively, Intervenors) moved to intervene in Hamm's case under Rule 24 of the Federal Rules of Civil Procedure to unseal the records, transcripts, and briefs discussing Alabama's execution protocol. On March 30, the court granted intervention as a matter of right under Rule 24(a), 2 but reserved ruling on the request for access to the protocol and related documents. In response to the request for access, Alabama asked the court to reconsider its decision to allow intervention and, alternatively, argued that the request for access should be denied because (1) the lethal injection protocol was not a publicly accessible judicial record, and (2) the Intervenors had no common law right of access to the protocol.
The district court denied Alabama's request to reconsider intervention and granted Intervenors' motion to unseal the protocol and related records. The court emphasized that Hamm's case had occurred under rushed circumstances, and concluded that failure to formally file the protocol did not make it a non-judicial record because the court "needed and relied upon the protocol to resolve [the State's] motion for summary judgment and Mr. Hamm's request for injunctive relief," and other judicial records referred to the protocol. 3 The court also found that Alabama failed to show interests sufficient to overcome the public's common law right of access to the protocol.
The district court issued two orders. The first order clarified what it unsealed, including redacted versions of (1) the protocol, (2) the sealed transcript of the January 31 in camera evidentiary hearing, (3) the sealed transcript of the February 16 closed medical examiner hearing, and (4) Hamm's motion for leave to supplement his first amended complaint. The second order instructed Alabama to file, under seal, a redacted copy of the protocol for the court to review before releasing it. Alabama appealed and moved to stay the release of the protocol pending this appeal. The district court granted Alabama's motion to stay; we now consider the state's appeal.
II. The Common Law Right of Access to Judicial Records
Whether a document is a "judicial record" subject to the common law right of access is a question of law we review de novo.
Accord
In re U.S. for an Order Pursuant to 18 U.S.C. Section 2703(D)
,
"It is clear that the courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents."
Nixon v. Warner Commc'ns, Inc.
,
A. Judicial Records
To determine whether Alabama's lethal injection protocol is subject to the common law right of access, we must first determine whether the protocol constitutes a judicial record. Citing our prior decisions in Chicago Tribune and AbbVie Products , Alabama argues that its lethal injection protocol is not a judicial record because its protocol was never formally filed with the district court and is not in the electronic docket. Alabama's interpretation is foreclosed by precedent in Newman v. Graddick , and thus we reject Alabama's argument.
In both
Chicago Tribune
and
AbbVie Products
, materials accompanying motions were filed with a district court during the course of litigation. Both decisions acknowledged the filed status of the materials while emphasizing a distinction between documents filed with discovery motions and those filed with substantive motions requiring judicial action.
See
AbbVie Prods., LLC
,
*1167
A complaint and its exhibits, which are integral to the 'judicial resolution of the merits' of any action, are surely 'subject to the common-law right.' ");
Chicago Tribune
,
In the present case, unlike in
AbbVie Products
and
Chicago Tribune
, the Intervenors are seeking access to materials that did not accompany motions filed in the district court. The specific language in
AbbVie Products
and
Chicago Tribune
regarding materials
filed
with motions to the court, then, does not clearly apply to the facts before us. Our decision in
Newman v. Graddick
,
Alabama asserts that, under
AbbVie Products
and
Chicago Tribune
, materials must be formally filed with a court to constitute judicial records. If these cases truly did impose such a formal filing requirement, they would conflict with our decision in
Newman
. To the extent that Alabama's interpretation of
AbbVie Products
and
Chicago Tribune
conflicts with
Newman
,
Newman
controls. "When we have conflicting case law, we follow our oldest precedent."
United States v. Madden
,
The mere filing of a document does not transform it into a judicial record.
See
Chicago Tribune
,
*1168
Instead, we have attempted to apply "a more refined approach" that accounts for "the tradition favoring access."
Chicago Tribune
,
This appeal arose under a unique set of circumstances, and thus we keep our holding narrow in comporting with our own precedent. Alabama's lethal injection protocol may not have been formally filed under the rushed timeline of Hamm's approaching execution, but the protocol constitutes a judicial record subject to the common law right of access because it was submitted to the district court to resolve disputed substantive motions in the litigation, was discussed and analyzed by all parties in evidentiary hearings and arguments, and was unambiguously integral to the court's resolution of the substantive motions in Hamm's as-applied challenge to the protocol. 6
B. Common Law Right of Access
After establishing that Alabama's protocol is a judicial record, we must now determine whether the district court abused its discretion in unsealing the protocol after finding it subject to the common law right of access. Generally, "the common-law right of access standard as it applies to particular documents requires the court to balance competing interests of the parties,"
Chicago Tribune
,
"The common law right of access may be overcome by a showing of good cause, which requires balanc[ing] the asserted right of access against the other party's interest in keeping the information confidential."
Romero v. Drummond Co., Inc.
,
To determine whether the district court abused its discretion in granting public access to Alabama's protocol, we look to its analysis of these factors. The district court considered the nature and character of the information in the lethal injection protocol, finding that the protocol and its related records "clearly concern a matter of great public concern, i.e. , how Alabama carries out its executions." The court noted that "[c]apital punishment is a hotly contested issue that involves an irrevocable punishment for prisoners convicted of terrible crimes. The public has a great interest in understanding how the State carries out its punishment."
The district court rejected Alabama's argument that the Intervenors sought the protocol for an improper purpose, concluding that "public discussion is not the same as public scandal .... And the fact that the Intervenors may take a position about the death penalty does not make their intent to publish factual matter about how Alabama conducts its executions 'scandalous.' " The court also considered whether access to the protocol would likely promote understanding of a historically significant event. The court found that this factor weighed in favor of unsealing the documents because "access to the lethal injection protocol may help the public to understand the context of the State's efforts to execute [Hamm]. It may also help the public to understand how the same scenario might be repeated or avoided under the protocol as it currently stands."
The district court went on to say that the press already had access to some information about the protocol because the court had referred "in broad terms [to] aspects of the protocol in its memorandum opinion about Defendants' motion for summary judgment." Alabama argues that the press will not gain any new significant information from the protocol because the only portion of the protocol at issue in Hamm's case-the procedure for venous access-has already been discussed by the district court and Hamm's counsel, and is therefore accessible to the public. The court concluded, however, that currently available information about the protocol was not an adequate replacement for the *1170 actual protocol. The court explained that, "in an attempt to avoid sealing or redacting the memorandum opinion, the court kept its summary of the protocol deliberately vague, highlighting what the protocol does not contain instead of what it does provide." Furthermore, "[Alabama] will keep the lethal injection protocol secret from the public unless the court unseals it. And the court's vague summary of portions of the lethal injection protocol and its gaps cannot truly substitute for the document itself."
The district court also evaluated whether Alabama relied on the protective order issued to keep the protocol confidential. The court acknowledged that Alabama has always sought to keep the protocol confidential, but ultimately decided that "the fact that [Alabama] zealously guard[s] information about a matter of great public concern does not tip the scales against disclosure. The court concludes that the considerations in favor of unsealing the records greatly outweigh [Alabama's] interest in maintaining secrecy." Finally, the court considered Alabama's contention that its lethal injection protocol contains sensitive security information. The court recognized that certain parts of the lethal injection protocol should remain sealed due to these potentially valid concerns and noted that these parts of the protocol could be easily redacted. 8
After considering and weighing all these factors, the district court held that "the public's common law right of access mandates the release of the lethal injection protocol and related court records." The court added, however, that it would not unseal the protocol in full-rather, "[a]ny information that could be used to track the locations of personnel before, during, and after the execution, or that could be used to identify the people involved in the execution, will be redacted." The court then resolved to consult with Alabama to determine which parts of the protocol needed to be redacted. The district court's thorough analysis of the factors listed in our precedent, and its tailored conclusion-allowing for redaction of information that implicated Alabama's proffered security concerns-did not constitute an abuse of discretion.
III. Intervention
We review the grant of a motion for permissive intervention for abuse of discretion, and the grant of a motion to intervene as of right de novo.
See
Georgia v. U.S. Army Corps of Eng'rs
,
"The press has standing to intervene in actions to which it is otherwise not a party in order to petition for access to court proceedings and records."
In re Petition of Tribune Co.
,
The district court granted intervention under Rule 24(a) for the Intervenors here, but the court also recognized that intervention would be proper under Rule 24(b). Intervention under either Rule 24(a) or 24(b) must be timely filed. Intervention may be timely filed even if it occurs after a case has concluded; timeliness depends on the circumstances of each case.
Cf.
Salvors, Inc. v. Unidentified Wrecked & Abandoned Vessel
,
Courts consider four factors in assessing timeliness: (1) the length of time during which the would-be intervenor knew or reasonably should have known of his interest in the case before petitioning for leave to intervene; (2) the extent of the prejudice that existing parties may suffer as a result of the would-be intervenor's failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest; (3) the extent of the prejudice that the would-be intervenor may suffer if denied the opportunity to intervene; and (4) the existence of unusual circumstances weighing for or against a determination of timeliness.
Salvors
,
Alabama argues that the Intervenors did not make a timely motion to intervene because the Intervenors knew that they had an interest in Hamm's case as early as January 18, when a reporter associated *1172 with Alabama Media Group reported on the case filings. Alabama did not submit a proposed confidentiality order until January 30, and did not produce the protocol until the hearing on January 31, which is when the district court imputed an interest to the Intervenors. The Intervenors did not seek to intervene until March 28. Using the district court's chosen date, we still find that this factor cuts slightly against timeliness of intervention.
Alabama also argues that it was prejudiced by the Intervenors' untimely intervention for two reasons. First, had Alabama known that the press would seek access to the protocol, it would not have voluntarily turned over the protocol during the case, and would have challenged any court decision requiring disclosure. Second, if the press had intervened earlier, Alabama could have taken a different approach to the joint dismissal of the case and the finalized settlement agreement with Hamm. 10 The district court rejected these arguments, finding first that if Alabama did not voluntarily produce the protocol, the court would have ordered Alabama to do so-thus, Alabama ultimately would have had to turn over the protocol. The court then found that Alabama and Hamm could not have reached any agreement about unsealing records in their settlement because neither party sought to unseal the records. 11
Alabama argues that the Intervenors will not suffer prejudice if they cannot intervene in Hamm's case because the Intervenors will not lose the opportunity to access the protocol in other ongoing or future lethal injection cases. This argument is unpersuasive. The mere fact that members of the press could attempt-in future or ongoing cases-to intervene and seek access to Alabama's execution protocol does not mean that the Intervenors are not prejudiced in this case. The Intervenors claim that they have a common law right to access the lethal injection protocol included as a judicial record in Hamm's case. Denial of this right constitutes an injury even if the press might have another opportunity to obtain a copy of Alabama's protocol in a different case. Even if a copy of the protocol were available in the future, Intervenors may be prejudiced by delay in gaining access to that record.
Cf.
Neb. Press Ass'n v. Stuart
,
Finally, no unusual circumstances appear to militate for or against the Intervenors' intervention in Hamm's case. In considering the totality of the circumstances and evaluating the alleged prejudice to each party, the district court reasonably concluded that the Intervenors timely intervened in Hamm's case. The *1173 district court's conclusion did not constitute an abuse of discretion. This determination of timeliness was necessary to meet the requirements for intervention under either Rule 24(a) or Rule 24(b).
Alabama also challenges the intervention based on other requirements of Rule 24. Alabama first argues that intervention under Rule 24(a) was improper because the Intervenors are not "so situated that disposition of the action, as a practical matter, may impede or impair [their] ability to protect that interest." Alabama claims that the Intervenors' asserted interest in accessing the protocol-informing the public as to whether the failure to execute Hamm was due to a problem with the protocol-is not impaired by the disposition of Hamm's case. Alabama presumes that the Intervenors may have other opportunities to access the protocol, regardless of what happens in this case. We previously addressed this argument above in evaluating timeliness, and we reject it for the same reasons here. Thus, we conclude that intervention as of right was appropriate under Rule 24(a). 12
IV. Conclusion
Our own precedent in Newman compels us to find that Alabama's lethal injection protocol-submitted to the court in connection with a litigated dispute, discussed in proceedings and motions by all parties, and relied upon by the court to dispose of substantive motions-is a judicial record. Judicial records provide grounds upon which a court relies in deciding cases, and thus the public has a valid interest in accessing these records to ensure the continued integrity and transparency of our governmental and judicial offices. This public right of access, based in the common law, may only be overcome when a court determines-after balancing the respective competing interests of all parties-that the party seeking to keep the information confidential has shown good cause. Here, the district court did not abuse its discretion. The court properly balanced the interests of Alabama and the Intervenors, concluding that Alabama had *1174 not shown good cause sufficient to overcome the common law right of access. The court also properly granted intervention under Rule 24 for Intervenors seeking to assert their common law right of access to the lethal injection protocol. Accordingly, we affirm.
AFFIRMED .
Advance Local Media, an Intervenor in this case, does business as the Alabama Media Group.
The district court noted that permissive intervention was proper under Rule 24(b) as well.
For example, Hamm's sealed motion for leave to supplement his first amended complaint quotes both the protocol and the January 31 hearing discussing the protocol.
In the past, we have recognized that both judicial proceedings and judicial records are presumptively available to the public because "[j]udges deliberate in private but issue public decisions after public arguments based on public records. ... Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat and requires rigorous justification."
Perez-Guerrero v. U.S. Att'y Gen.
,
Courts retain jurisdiction to unseal judicial records and may allow parties to intervene well after judgment in a dispute.
See, e.g.
,
AbbVie Prods., LLC
,
The parties discussed the protocol with the district court in an in camera hearing, and the district court noted that substantive motions in this case incorporated and referred to the protocol. The court relied upon-and cited to-the protocol in denying Alabama's motion for summary judgment "as to the merits of Mr. Hamm's as-applied claim"; the court also relied upon the protocol in denying Hamm's request for a preliminary injunction.
In
Nixon v. Warner Communications, Inc.
, the Supreme Court described examples of "public scandal" as "publication of the painful and sometimes disgusting details of a divorce case," or "reservoirs of libelous statements for press consumption."
Alabama has not provided any other concrete security concerns, either in the district court or on appeal, beyond concern for protecting the identities of individual participants in the execution process. Redaction of identifying information in the protocol will eliminate this concern. At the time of oral argument, Alabama still had not taken the district court's offer to redact the protocol.
Though the former Fifth Circuit recognized in
McDonald
that "intervention after judgment is unusual and not often granted," it also noted that "[t]he most important consideration in determining timeliness is whether any existing party to the litigation will be harmed or prejudiced by the proposed intervenors; delay in moving to intervene."
Alabama did not provide any details about how it might have changed its settlement agreement with Hamm had members of the press sought to intervene before settlement.
We also note that Alabama and Hamm could not have bound third parties or the court as to sealing issues.
Moreover, it would not have been an abuse of discretion for the district court to grant intervention under Rule 24(b). Many circuits recognize that parties "seeking to intervene in a case for the limited purpose of unsealing judicial records" need not show a "strong nexus of fact or law" to the issues in the original case.
Flynt v. Lombardi
,
Reference
- Full Case Name
- COMMISSIONER, ALABAMA DEPARTMENT OF CORRECTIONS, Holman CF Warden, Donaldson CF Warden, Defendants-Appellants, v. ADVANCE LOCAL MEDIA, LLC, D.B.A. Alabama Media Group, Montgomery Advertiser, the Associated Press, Intervenors-Appellees.
- Cited By
- 28 cases
- Status
- Published