VA State Police v. Washington , 386 F.3d 567 ( 2004 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
VIRGINIA DEPARTMENT OF STATE 
POLICE,
Appellant,
v.
THE WASHINGTON POST; THE
VIRGINIAN PILOT; RICHMOND TIMES-
DISPATCH; ASSOCIATED PRESS;
VIRGINIA PRESS ASSOCIATION; MEDIA
GENERAL OPERATIONS, INCORPORATED,
Appellees,
EARL WASHINGTON, JR.,
Plaintiff-Appellee,
 No. 04-1375
and
KENNETH H. BURAKER; CHARLES
JONES; HARLAN LEE HART; GERALD
YANCEY; GARY L. CLOSE; DENNY M.
SLANE; TERRY SCHRUM; CURTIS REESE
WILMORE; LUTHER COX; DENNY A.
ZEETS; TOWN OF CULPEPER, VIRGINIA;
FAUQUIER COUNTY, VIRGINIA; MARY
L. JONES,
Defendants.

Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
Norman K. Moon, District Judge.
(CA-02-106-3)
Argued: June 4, 2004
Decided: October 1, 2004
2 VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST
Before WIDENER and SHEDD, Circuit Judges, and
David R. HANSEN, Senior Circuit Judge of the
United States Court of Appeals for the Eighth Circuit,
sitting by designation.
Affirmed in part and remanded in part by published opinion. Judge
Shedd wrote the opinion, in which Judge Widener and Senior Judge
Hansen joined.
COUNSEL
ARGUED: James Owen Towey, Assistant Attorney General,
OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Rich-
mond, Virginia, for Appellant. Peter J. Neufeld, COCHRAN NEU-
FELD & SCHECK, L.L.P., New York, New York; John G. Kester,
WILLIAMS & CONNOLLY, Washington, D.C., for Appellees. ON
BRIEF: Jerry W. Kilgore, Attorney General, Martin L. Kent, Assis-
tant Attorney General, Richmond, Virginia, for Appellant. Eric M.
Freedman, New York, New York; Robert T. Hall, HALL, SICKELS,
ROSTANT, FREI & KATTENBURG, P.C., Reston, Virginia, for
Earl Washington, Jr.; Conrad M. Shumadine, WILLCOX & SAV-
AGE, P.C., Norfolk, Virginia, for The Virginian-Pilot; Craig T. Mer-
ritt, CHRISTIAN & BARTON, L.L.P., Richmond, Virginia, for
Media General Operations, Inc., t/a The Richmond Times-Dispatch,
Associated Press, and Virginia Press Association; Dane H.
Butswinkas, Kenneth J. Brown, WILLIAMS & CONNOLLY, L.L.P.,
Washington, D.C., for The Washington Post.
OPINION
SHEDD, Circuit Judge:
Earl Washington, Jr., was convicted, sentenced to death, and even-
tually pardoned for the 1982 murder of Rebecca Lynn Williams. The
underlying case from which this appeal comes to us is Washington’s
VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST 3
civil rights lawsuit in which he challenges his arrest and conviction
for the Williams murder, but the merits of that case are not now
before us. Instead, we are presented with a challenge by the Virginia
Department of State Police ("VDSP") — which is not a party in
Washington’s civil case — to the district court’s decision to unseal
certain documents that VDSP had produced pursuant to a subpoena
duces tecum served by Washington and other documents which con-
tain information from the VDSP documents. The documents were
filed in the district court under seal, and they pertain to VDSP’s crim-
inal investigation into the Williams murder. For the reasons set forth
below, we affirm the district court’s decision to unseal the documents
in part, and we remand in part for further proceedings.
I
On June 4, 1982, Williams was raped and murdered in her Cul-
peper, Virginia, apartment. In May 1983, while in custody for an
unrelated crime, Washington confessed to raping and killing Wil-
liams. Washington was tried and convicted for the capital murder of
Williams in January 1984, and he was thereafter sentenced to death.
The Supreme Court of Virginia affirmed Washington’s conviction
and sentence, see Washington v. Virginia, 323 S.E.2d 577 (Va. 1984),
and his attempts at post-conviction relief were unsuccessful, see
Washington v. Angelone, 12 Fed. Appx. 112 (4th Cir. 2001); Wash-
ington v. Murray, 4 F.3d 1285 (4th Cir. 1993); Washington v. Murray,
952 F.2d 1472 (4th Cir. 1991).
In 1994, then-Governor L. Douglas Wilder commuted Washing-
ton’s sentence to life in prison, and in 2000, then-Governor James S.
Gilmore, III, pardoned Washington. Governor Gilmore based the par-
don on his determination that a jury, if presented with newly available
DNA test results, would have reached a different conclusion regard-
ing Washington’s guilt. Governor Gilmore explained his rationale:
According to the results of the new DNA tests, Washington
is excluded from semen taken from Mrs. Williams’ body
and his DNA could not be located elsewhere in the apart-
ment.
The DNA results further revealed the semen of another per-
son on a blue blanket taken from the scene of the crime. The
4 VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST
DNA from semen on the blue blanket matched the DNA of
a convicted rapist. However, the DNA on the blue blanket
did not match the DNA of the sole sample of semen taken
from Mrs. Williams’ body. As a result, the Division of
Forensic Science could not confirm the DNA found on the
blue blanket was Rebecca Williams’ rapist.
(J.A. 264-65). In conjunction with the pardon, Governor Gilmore
ordered VDSP to conduct a new investigation into the Williams case.
Washington filed the underlying civil action in 2002. During pre-
trial proceedings, Washington served a third-party subpoena duces
tecum on VDSP commanding production of all documents and other
materials concerning him from June 1982 to the date of the subpoena
"including, without limitation, all such material related to the murder
of Rebecca Lynn William [sic] and the investigation ordered thereon
by Governor James S. Gilmore, III." (J.A. 74). VDSP responded by
releasing all applicable documents except those it asserted were part
of the ongoing criminal investigation file. VDSP objected to produc-
ing those documents, and Washington moved to compel their produc-
tion. VDSP then moved to quash or modify the subpoena.
The district court granted Washington’s motion to compel, denied
VDSP’s motion to quash, and ordered VDSP to produce the investi-
gation file. The district court recognized the "potential sensitivity" of
the information in the investigation file, but it concluded that Wash-
ington’s "need for this information and the public interest outweigh
the need for total secrecy." (J.A. 167). The district court, however,
conditioned its ruling on the entry of a protective order. Subsequently,
the district court entered a protective order that required VDSP to pro-
duce the investigation file only to the parties, counsel of record and
their employees, and properly designated experts. The protective
order prohibited further dissemination of the investigation file. Wash-
ington and VDSP subsequently consented to the entry of a supple-
mental protective order to govern documents that were created after
the original subpoena had been served.
Many of the documents produced by VDSP pursuant to the protec-
tive orders were later attached to or addressed in pleadings and other
documents filed with the district court, and some were also discussed
VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST 5
during district court hearings. Although the protective orders did not
address the issue of sealing these documents, they were in fact filed
under seal.
As the case progressed, Washington moved to lift the protective
orders. Washington argued that the VDSP investigation was no longer
ongoing and, therefore, the justification for maintaining the confiden-
tiality of the VDSP discovery documents no longer existed. Washing-
ton also argued that under the First Amendment and the common law
the public has a right of access to the VDSP documents. Several
media organizations ("Media Appellees") subsequently moved to
intervene and to unseal all documents that had been filed under seal.
On February 20, 2004, the district court heard oral arguments on
the motions. At the conclusion of the hearing, the district court
ordered VDSP to file a statement setting forth its reasons for wanting
to maintain under seal any sealed pleadings, sealed documents
attached to pleadings, or sealed transcripts. VDSP thereafter filed its
statement ("the statement of compelling reasons"). As a result of this
process, VDSP narrowed the list of documents it desired to keep
under seal, and it attached those documents (under seal) to the state-
ment of compelling reasons as Exhibits A through T. While VDSP
asserted that some documents should remain under seal in their
entirety, it also proposed redactions for other documents. Generally
speaking, VDSP’s stated reasons for keeping these documents sealed
are that they concern a "certain suspect" and forensic testing relating
to that suspect.
The district court thereafter issued three orders addressing the issue
of the sealed documents. In the first order (dated March 5, 2004), the
district court ruled "[f]or the time being" that the documents desig-
nated for redaction by VDSP in the statement of compelling reasons
would be redacted and that the documents that VDSP wished to keep
under seal would remain under seal. The district court unsealed all
other sealed documents that were filed before February 20, 2004.
On March 10, newspaper articles about the Williams murder inves-
tigation were published in various newspapers, including the Wash-
ington Post and the Richmond Times-Dispatch. These articles, which
were attributed to the Associated Press, reported that the unsealed
6 VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST
court documents identify Kenneth Maurice Tinsley, a convicted rap-
ist, as a suspect in the murder because Tinsley’s DNA matches sam-
ples found at the crime scene. Many additional news reports have
likewise identified Tinsley as a suspect because of the DNA samples.
In the second order (dated March 18, 2004), the district court
ordered that, with one exception (Exhibit D), all documents filed
under seal before February 20, 2004, be unsealed.1 The district court
explained:
The documents that VDSP claims should remain under seal
predominantly deal with Kenneth Maurice Tinsley
("Tinsley"), a convicted rapist who is a suspect in the mur-
der of Rebecca Williams. The Court is sympathetic to the
desire of the state police to keep aspects of a murder investi-
gation off the public record. Because VDSP did not attempt
to seal all portions of the record that disclose Tinsley as a
suspect, however, Tinsley’s identity is already a matter of
public record. Given that Tinsley’s identity has already been
disclosed, and his status as a suspect in the Williams murder
has already been extensively reported in the media, the
Court finds that VDSP’s stated interest in keeping Tinsley’s
identity confidential is not compelling.
VDSP also attempts to seal a recent interview [Exhibit D]
with a suspect in the Tinsley case. . . . The subject of this
interview discloses facts surrounding the murder of Rebecca
Williams that have not been made public. The release of this
document could undermine the Williams murder investiga-
tion, and the Court finds that a compelling governmental
interest exists in protecting the integrity of an ongoing
police investigation. Accordingly, this interview shall
remain under seal.
(J.A. 425-26). Neither Washington nor the Media Appellees have
1
The district court limited the order to cover only documents that had
been filed, and it expressly excluded "discovery material that is not part
of the record." (J.A. 426).
VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST 7
challenged the district court’s decision to keep Exhibit D under seal,
and that issue is not before us.
VDSP immediately moved for a stay and reconsideration of the
March 18 order. At a hearing on these motions, VDSP consented to
the unsealing of five of the documents it had attached to the statement
of compelling reasons (Exhibits A, B, J, K, and L). Thereafter, the
district court entered the third order (dated March 23, 2004), in which
it denied the motion for reconsideration.2 The district court explained:
Under the First Amendment "the denial of access must be
necessitated by a compelling government interest and nar-
rowly tailored to serve that interest." Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988)
(citing Press-Enterprise Co. v. Superior Court, 464 U.S.
501, 510 (1984)); Globe Newspaper Co. v. Superior Court,
457 U.S. 596, 607 (1982)). VDSP argues that because it
objects to the release of documents that "reveal information
concerning suspects, recent witnesses, and details about evi-
dence" it has met its burden to produce a compelling gov-
ernmental interest. VDSP also argues that the Rebecca
Williams murder investigation would be hampered by
releasing certain specified documents, that witnesses would
be put at risk, and that future investigative techniques would
be undermined. VDSP does not explain the basis of these
concerns. General concerns stated in a conclusory fashion
are not sufficient to constitute a compelling government
interest, and do not grant the Court a sufficient basis [to]
deny public access to documents filed in this action.
(J.A. 470). Although it denied VDSP’s motion for reconsideration,
2
VDSP did not cite a procedural rule upon which its motion was based,
and the district court treated it as a Rule 60(b)(6) (Fed. R. Civ. P.)
motion. Because VDSP filed the motion within 10 days after the order
was entered, the district court should have considered it under Rule
59(e). See Dove v. CODESCO, 569 F.2d 807, 809 (4th Cir. 1978).
8 VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST
the district court granted VDSP’s motion for a stay in order to allow
VDSP time to file an appeal.3
On March 25, VDSP filed in the district court a "Notice of Petition
for Writ of Mandamus and/or Prohibition and Interlocutory Appeal
and Application for Emergency Stay" from the March 23 order, and
it also filed an application for a stay of the March 23 order in this
Court. In its application to this Court, VDSP stated that notwithstand-
ing its district court filing, it is not pursuing mandamus or prohibition
relief.4 On March 26, we stayed the March 23 order, and we con-
ducted oral argument on an expedited basis on June 4.
On June 23, the district court denied Washington’s motion to lift
the protective orders. The district court found that "there is still an
ongoing investigation into the Williams murder" and that the protec-
tive orders do not offend the First Amendment. Order, No. 3:02-CV-
00106 (June 23, 2004).
The district court has entered two partial summary judgment orders
which have dismissed most of Washington’s claims. See Washington
v. Buraker, 322 F. Supp. 2d 702 (W.D. Va. 2004) ("Buraker II");
Washington v. Buraker, 322 F. Supp. 2d 692 (W.D. Va. 2004). On
August 9, the district court stayed its proceedings in order to allow
one of the remaining defendants (Curtis Wilmore) to pursue an inter-
locutory appeal of an adverse summary judgment ruling on his claim
of qualified immunity. The merits of that appeal are not now before
us.
3
It appears that the district court did not actually unseal any of the dis-
puted documents between March 18 and March 23. However, it is not
clear if the parties provided the documents to anyone during that time.
4
VDSP has specifically appealed only the March 23 order; however,
we believe that its intent to appeal the March 18 order is clear, and we
therefore will review both orders. See Brown v. French, 147 F.3d 307,
311 (4th Cir. 1998). Moreover, although a mandamus petition is the "pre-
ferred vehicle for review" of orders sealing or unsealing records, an order
unsealing district court documents is an appealable collateral order under
Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). See Under
Seal v. Under Seal, 326 F.3d 479, 485 & n.5 (4th Cir. 2003).
VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST 9
II
This appeal presents the seeming tension between several legiti-
mate interests. On one hand, the operation of the court system is a
matter of "utmost public concern," Landmark Communications, Inc.
v. Virginia, 435 U.S. 829, 839 (1978), and "[s]ociety has an under-
standable interest . . . in law enforcement systems and how well they
work." In re Application and Affidavit for a Search Warrant, 923 F.2d
324, 331 (4th Cir. 1991). These interests are obviously implicated
here because of the circumstances surrounding Washington’s death
sentence and subsequent pardon. On the other hand, law enforcement
agencies must be able to investigate crime without the details of the
investigation being released to the public in a manner that compro-
mises the investigation.
VDSP frames the issue before us broadly as involving "the integ-
rity of information contained in all on-going criminal investigation
files," Brief of the Appellant, p. 19, and contends that the district
court’s decision to unseal the documents will have a dramatic effect
beyond this case. We believe, however, that the issue is actually quite
narrow and that its resolution is dictated by well-established prece-
dent and the unique circumstances of this case.
A.
The right of public access to documents or materials filed in a dis-
trict court derives from two independent sources: the common law
and the First Amendment. Stone v. University of Md. Med. Sys. Corp.,
855 F.2d 178, 180 (4th Cir. 1988) ("Stone I"). "Publicity of such
records, of course, is necessary in the long run so that the public can
judge the product of the courts in a given case." Columbus-America
Discovery Group v. Atlantic Mut. Ins. Co., 203 F.3d 291, 303 (4th
Cir. 2000).
The distinction between the rights of access afforded by the com-
mon law and the First Amendment is "significant," In re Baltimore
Sun Co., 886 F.2d 60, 64 (4th Cir. 1989), because the common law
"does not afford as much substantive protection to the interests of the
press and the public as does the First Amendment." Rushford v. New
Yorker Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988). Conse-
10 VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST
quently, "the common law does not provide as much access to the
press and public as does the First Amendment." In re State-Record
Co., 917 F.2d 124, 127 (4th Cir. 1990).5
The common law presumes a right of the public to inspect and
copy "all ‘judicial records and documents.’" Stone I, 855 F.2d at 180
(quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597
(1978)). "This presumption of access, however, can be rebutted if
countervailing interests heavily outweigh the public interests in
access," and "[t]he party seeking to overcome the presumption bears
the burden of showing some significant interest that outweighs the
presumption." Rushford, 846 F.2d at 253. Some of the factors to be
weighed in the common law balancing test "include whether the
records are sought for improper purposes, such as promoting public
scandals or unfairly gaining a business advantage; whether release
would enhance the public’s understanding of an important historical
event; and whether the public has already had access to the informa-
tion contained in the records." In re Knight Publ. Co., 743 F.2d 231,
235 (4th Cir. 1984). Ultimately, under the common law the decision
whether to grant or restrict access to judicial records or documents is
a matter of a district court’s "supervisory power," and it is one "best
left to the sound discretion of the [district] court, a discretion to be
exercised in light of the relevant facts and circumstances of the partic-
ular case." Nixon, 435 U.S. at 598-99. We therefore review a district
court’s decision concerning common law access for abuse of discre-
tion. Rushford, 846 F.2d at 253.
In contrast to the common law, "the First Amendment guarantee of
access has been extended only to particular judicial records and docu-
ments." Stone I, 855 F.2d at 180. When the First Amendment pro-
vides a right of access, a district court may restrict access "only on
the basis of a compelling governmental interest, and only if the denial
is narrowly tailored to serve that interest." Id. The burden to over-
come a First Amendment right of access rests on the party seeking to
restrict access, and that party must present specific reasons in support
of its position. See Press-Enterprise Co. v. Superior Court, 478 U.S.
5
The rights of access of the media "are co-extensive with and do not
exceed those rights of members of the public in general." In re Greens-
boro News Co., 727 F.2d 1320, 1322 (4th Cir. 1984).
VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST 11
1, 15 (1986) ("The First Amendment right of access cannot be over-
come by [a] conclusory assertion"). We review a district court’s deci-
sion concerning access under the First Amendment de novo. In re
State-Record, 917 F.2d at 127.
B.
Regardless of whether the right of access arises from the First
Amendment or the common law, it "may be abrogated only in
unusual circumstances." Stone I, 855 F.2d at 182. When presented
with a request to seal judicial records or documents, a district court
must comply with certain substantive and procedural requirements.
Rushford, 846 F.2d at 253. As to the substance, the district court first
"must determine the source of the right of access with respect to each
document," because "[o]nly then can it accurately weigh the compet-
ing interests at stake." Stone I, 855 F.2d at 181.
A district court must then weigh the appropriate competing inter-
ests under the following procedure: it must give the public notice of
the request to seal and a reasonable opportunity to challenge the
request; it must consider less drastic alternatives to sealing; and if it
decides to seal it must state the reasons (and specific supporting find-
ings) for its decision and the reasons for rejecting alternatives to seal-
ing. Id. Adherence to this procedure serves to ensure that the decision
to seal materials will not be made lightly and that it will be subject
to meaningful appellate review. Id. at 182. This determination "is one
properly made in the first instance from the superior vantage point of
the district court." Id.
C.
The right of access in any given case may vary depending on the
nature of the case and the specific item under review. Id. at 180. Here,
we are dealing with a civil case, and with material produced by VDSP
during pretrial discovery that was later filed (or addressed in filings)
in the district court. Although the majority of cases involving access
to court records appear to be criminal cases, we have previously
addressed the issue in the context of civil cases.
12 VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST
For example, in Rushford we considered the propriety of a district
court’s order sealing documents that were attached to a successful
summary judgment motion. Although the documents had been the
subject of a pretrial discovery protective order, we observed that once
the documents were made part of a dispositive motion, they lost their
status as being "raw fruits of discovery," and that discovery, "which
is ordinarily conducted in private, stands on a wholly different footing
than does a motion filed by a party seeking action by the court." 846
F.2d at 252 (internal quotation marks omitted). After noting that sum-
mary judgment "serves as a substitute for a trial" and that we had held
in a prior case that the First Amendment standard should apply to
documents filed in connection with plea and sentencing hearings in
criminal cases, we held that "the more rigorous First Amendment
standard should also apply to documents filed in connection with a
summary judgment motion in a civil case." Id. at 252, 253.
Although we recognized that "there may be instances in which dis-
covery materials should be kept under seal even after they are made
part of a dispositive motion," we stated that the district court must
make that determination "at the time it grants a summary judgment
motion and not merely allow continued effect to a pretrial discovery
protective order." Id. at 253. We noted that "[t]he reasons for granting
a protective order to facilitate pre-trial discovery may or may not be
sufficient to justify proscribing the First Amendment right of access
to judicial documents," and we remanded the case to the district court
in order for it to determine under the appropriate substantive and pro-
cedural standards whether the documents should remain sealed. Id. at
254.
We faced a similar set of circumstances in Stone I. In that case, the
district court sealed the entire record (except for a few pleadings).
Thereafter, the district court granted the defendants’ summary judg-
ment motion, and it denied a request by a media intervenor to unseal
the record. As in Rushford, because the district court did not properly
analyze the request to seal the documents, we remanded the case for
further consideration. Stone I, 855 F.2d at 180-83.
On remand, the district court lifted the seal on all but three docu-
ments. Two of the documents had been attached as exhibits to the
defendants’ summary judgment motion, and one had been filed by the
VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST 13
plaintiff in opposition to the summary judgment motion. The district
court concluded that a compelling government interest outweighed
the intervenor’s First Amendment right of access to these documents.
On appeal, we held that the district court erred in determining that the
government’s asserted reason was compelling, and we therefore
ordered the documents to be unsealed. Stone v. University of Md.
Med. Sys. Corp., 948 F.2d 128, 131 (4th Cir. 1991).6
III
Fourteen documents that were sealed in the district court are at
issue in this appeal. In the statement of compelling reasons, VDSP
states that Washington filed one of these documents (Exhibit C) in
connection with a discovery matter; eight (Exhibits E, F, G, H, I, M,
N, and O) in connection with his response to summary judgment
motions; and four (Exhibits P, Q, R, and S) in connection with his
motion to lift the protective orders.7 The final document (Exhibit T)
is a portion of the transcript of a hearing that was held before a magis-
trate judge on November 24, 2003. The remainder of VDSP’s crimi-
6
We recently affirmed a district court’s denial of a request by a civil
litigant under Rushford to unseal discovery documents that had been pro-
duced pursuant to a protective order and then filed in connection with a
summary judgment motion. See Pittston Co. v. United States, 368 F.3d
385, 406 (4th Cir. 2004). Although Washington’s argument for public
access in the instant appeal is similar to the one we rejected in Pittston,
the cases are distinguishable because here (unlike Pittston) we have the
intervention by the Media Appellees.
7
Exhibit C is paragraphs 13-22 and the last sentence of paragraph 23
of the Declaration of Peter Neufeld, which is attached to Washington’s
"Brief in Opposition to Nonparty Virginia State Police’s Motion to
Quash Subpoena and in Furtherance of his Motion to Compel the
Release of Evidence to D. Edward T. Blake." Exhibit E is a portion of
page 1, all of pages 36-37, and the first two lines of page 38 of Washing-
ton’s "Brief in Opposition to Motions for Summary Judgment Based on
Qualified Immunity Filed by Defendants Reese Wilmore and Denny
Slane," and Exhibits F, G, H, I, M, N, and O are VDSP documents that
are attached to this brief. Exhibit P is a portion of page 4 of Washing-
ton’s "Brief in Reply to the VSP’s Opposition to Lift Protective Orders,"
and Exhibits Q, R, and S are VDSP documents that are attached to this
brief.
14 VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST
nal investigation file (as it existed on February 20, 2004) has been
released to the public.
In unsealing these documents, the district court focused its analysis
exclusively on the First Amendment, and it implicitly held that the
public has a First Amendment right of access to all of the documents.
The district court then expressly held that VDSP had failed to estab-
lish a compelling governmental interest to restrict that access.
Concerning this latter finding, the district court recognized that "a
compelling governmental interest exists in protecting the integrity of
an ongoing police investigation," and it applied this principle in refus-
ing to unseal Exhibit D. (J.A. 426). More specifically, the district
court found that the information contained in Exhibit D (which is not
before us) involves facts surrounding the Williams murder that have
not been made public and that the release of the information could
undermine the investigation. In contrast, the district court found that
the other material VDSP seeks to keep under seal primarily deals with
Tinsley, whose "status as a suspect in the Williams murder has
already been extensively reported in the media" because of VDSP’s
failure to attempt to seal all portions of the record that disclose him
as a suspect. (J.A. 425-26). The district court therefore concluded that
VDSP’s stated interest in keeping Tinsley’s identity confidential is
not compelling. (J.A. 426). The district court further concluded that
VDSP failed to provide any other sufficient compelling reason to jus-
tify the documents remaining under seal. (J.A. 470).
In this posture, we review the district court’s decision to unseal the
documents de novo, and we must first determine whether the district
court correctly accorded First Amendment status to each of the docu-
ments. If we find that the district court is correct in this regard, we
must then determine whether it also correctly rejected VDSP’s
asserted compelling governmental reason to keep each document
sealed. Conversely, if we find that the district court erred in according
First Amendment status to any of the documents, we must then turn
our attention to the issue of whether the public has a common law
right of access to that document and whether VDSP has presented a
sufficient reason to restrict that access.8
8
Although the issue presented to us is whether the district court erred
in unsealing the documents, we note that the district court actually erred
VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST 15
A.
As we have noted, Washington filed eight of the documents
(Exhibits E, F, G, H, I, M, N, and O) in connection with his opposi-
tion to summary judgment motions. Specifically, Washington filed
these documents in opposition to the summary judgment motions of
defendants Curtis Wilmore and Denny Slane. Before the motions
were decided, Washington dismissed all of his claims against Slane.
See Buraker II, 322 F. Supp. 2d at 716. The district court thereafter
granted partial summary judgment in favor of Wilmore. From the
record before us, we cannot tell whether the district court specifically
considered these eight documents in making its determination, but we
also have no indication that it declined to consider them.
The district court did not elaborate on its basis for according First
Amendment status to these eight documents. Nonetheless, we con-
clude that the district court’s determination that the public has a First
Amendment right of access to them is correct. We believe this conclu-
sion is compelled by our decision in Rushford in which (as noted) we
held that "the more rigorous First Amendment standard should . . .
apply to documents filed in connection with a summary judgment
motion in a civil case." 846 F.2d at 253. Because the public has a
right of access under the First Amendment to these documents, the
district court correctly required VDSP to proffer a compelling govern-
mental reason to keep them sealed. Id. We therefore must turn to the
district court’s conclusion that VDSP’s stated reasons concerning
these documents are not compelling.
We note initially our complete agreement with the general princi-
ple that a compelling governmental interest exists in protecting the
integrity of an ongoing law enforcement investigation. However, not
every release of information contained in an ongoing criminal investi-
in allowing the documents to be sealed in the first instance. Regardless
of whether the district court properly entered the protective orders, it
clearly did not comply with our procedures in allowing the documents
to be sealed. However, because the district court eventually unsealed the
contested documents, its failure in this regard is not before us.
16 VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST
gation file will necessarily affect the integrity of the investigation.9
Therefore, it is not enough simply to assert this general principle
without providing specific underlying reasons for the district court to
understand how the integrity of the investigation reasonably could be
affected by the release of such information. Whether this general
interest is applicable in a given case will depend on the specific facts
and circumstances presented in support of the effort to restrict public
access. See Globe Newspaper Co. v. Superior Court, 457 U.S. 596,
607-08 (1982) ("But as compelling as that interest is, it does not jus-
tify a mandatory closure rule, for it is clear that the circumstances of
the particular case may affect the significance of the interest" (empha-
sis in original)). Although we need not attempt to catalogue the vari-
ous reasons which may be considered in deciding whether an asserted
interest is compelling, we note that one consideration is (as the district
court recognized concerning Exhibit D) whether the granting of
access to the contents of an ongoing police investigation file will dis-
close facts that are otherwise unknown to the public.10
VDSP’s stated interest concerning these eight documents is that
each document contains information about (1) the identity of "a cer-
tain suspect or suspects" and (2) evidence (including DNA evidence)
involving the suspect or suspects. We have carefully examined these
documents, and we have likewise given careful consideration to
VDSP’s arguments concerning them. We believe that the district
court correctly determined that VDSP has failed to present a compel-
ling governmental interest that is sufficient to keep these documents
sealed.
The bulk of the information contained in these documents relates
to Tinsley and the DNA testing that identified his semen on a blanket
found at the murder scene. As the district court found, this informa-
tion has already become a matter of public knowledge because VDSP
9
This point is illustrated to some extent by the facts of this case: VDSP
has in fact consented to, or acquiesced in, the release of almost its entire
file concerning the Williams murder investigation, which VDSP ada-
mantly maintains is ongoing.
10
We express no opinion on the propriety of the district court’s deci-
sion to keep Exhibit D under seal because (as we have noted) that issue
is not before us.
VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST 17
allowed (or acquiesced in) the public release of other documents in
which it is contained. We note, as one example, that the Joint Appen-
dix (page 274) contains an unsealed VDSP memorandum dated Sep-
tember 23, 2003, which specifically identifies Tinsley and describes
the results of DNA testing. Additionally, Exhibits J, K, and L —
which VDSP consented to be released — specifically discuss Tinsley
and contain police photographs of him. As we have recognized in a
slightly different context, "[o]nce announced to the world, the infor-
mation lost its secret characteristic." In re Charlotte Observer, 921
F.2d 47, 50 (4th Cir. 1990) (vacating injunction prohibiting reporters
from disclosing information revealed in open courtroom).
We therefore affirm the district court’s orders to the extent they
unseal Exhibits E, F, G, H, I, M, N, and O. Because Exhibits I and
R are actually the same document, we find that VDSP’s challenge to
the unsealing of Exhibit R is now moot.
B.
We next consider Exhibit T, which is a portion of a November 24,
2003, hearing transcript. This hearing appears to have concerned pre-
trial discovery matters. Although the district court accorded Exhibit
T First Amendment status, we have never held that the public has a
First Amendment right of access to a pretrial hearing on a non-
dispositive civil motion or to the transcript of such a hearing. How-
ever, we have found a First Amendment right of access to certain pre-
trial criminal hearings. See In re Washington Post Co., 807 F.2d 383,
390 (4th Cir. 1986) ("we hold that the First Amendment right of
access applies to documents filed in connection with plea hearings . . .
in criminal cases, as well as to the hearings themselves"). We also
recognize that although the public hearing requirement of criminal
proceedings "is not inflexibly applied in all civil proceedings," Satter-
field v. Edenton-Chowan Bd. of Educ., 530 F.2d 567, 573 (4th Cir.
1975), proceedings in civil cases are traditionally open, see In re
Grand Jury Subpoena, 836 F.2d 1468, 1475 n.11 (4th Cir. 1988)
("Sealing the discovery process in civil proceedings . . . sacrifices the
traditional interest of the public in obtaining access to civil proceed-
ings"), and "in some civil cases the public interest in access . . . may
be as strong as, or stronger than, in most criminal cases," Gannett Co.
v. DePasquale, 443 U.S. 368, 386 n.15 (1979).
18 VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST
As we noted, in the statement of compelling reasons VDSP set
forth its purported compelling reasons for keeping each document
under seal. However, as to Exhibit T, VDSP offered no specific rea-
son at all, much less a compelling reason. Likewise, it has offered no
specific reason in its appellate briefs. From our review of this docu-
ment, we do not see any obvious reason how its release would affect
the integrity of the Williams investigation.
On this record, we need not decide whether Exhibit T should be
accorded First Amendment or common law status. We believe that
VDSP’s failure to offer any reason at all is fatal to its attempt to main-
tain this document under seal under either standard. We therefore
affirm, albeit on slightly different grounds, the district court’s orders
to the extent they unseal Exhibit T.
C.
We are left to consider four documents: Exhibits C, P, Q, and S.
Washington attached Exhibit C to a brief concerning pretrial discov-
ery matters. Exhibit P is a portion of a brief Washington filed in sup-
port of his motion to lift the protective orders, and Exhibits Q and S
are attached to that brief.
We have decided to remand this case to the district court for further
consideration of whether these four documents should be sealed. As
with the other documents, the district court simply assumed, without
explanation, that the public has a First Amendment right of access to
these documents. We are not at all convinced that this is a correct
assumption, and we are certainly not persuaded one way or the other
by the parties’ arguments on appeal. Moreover, we have no basis to
ascertain to what extent, if any, the district court considered these
documents in the proceedings below. We therefore believe that fur-
ther consideration and explanation by the district court is warranted.
On remand, the district court should reconsider whether these doc-
uments should be accorded First Amendment status and specifically
state the reasons for whatever decision it reaches. Because of the pos-
ture of this case, regardless of its conclusion concerning the First
Amendment, the district court should also consider whether there is
a common law right of access to these documents and whether VDSP
VIRGINIA DEP’T OF STATE POLICE v. WASHINGTON POST 19
has presented sufficient reasons to restrict that access. As we
explained in Stone I, these are determinations that are "properly made
in the first instance from the superior vantage point of the district
court" and are necessary for meaningful appellate review. 855 F.2d at
182.11
IV
Based on the foregoing, we affirm the district court’s orders
unsealing Exhibits E, F, G, H, I, M, N, O, R, and T, and we remand
this case to the district court for further consideration of whether
Exhibits C, P, Q, and S should be unsealed.
AFFIRMED IN PART
AND REMANDED IN PART
11
Although VDSP contends that there is no First Amendment right of
access to any of the 14 documents at issue, it did not take that position
below. See, e.g., J.A. 366 (VDSP counsel stating that "I do agree that
First Amendment scrutiny applies to documents that are filed as judicial
records" and "I agree . . . that the only documents that are subject to First
Amendment scrutiny are those that have been attached to pleadings");
J.A. 399-401 (VDSP’s argument concerning the First Amendment in the
statement of compelling reasons).