Order Denying Defendant's Motion to Unseal DEA File on Informant Reversed for Reconsideration

U.S. v. Pickard, 2013 WL 5912089 (11/5/13) (Kan.) (Published) - The 10th overturns an order denying the defendants' motion to unseal the DEA file on a CI because the district court: (1) didn't require the government to articulate a significant interest in keeping the records sealed; (2) didn't apply the presumption in favor of keeping judicial records open to the public; and (3) didn't consider whether unsealing a redacted version would serve whatever government interest there was for sealing the records. During the trial 8 years before the government filed the CI's file with the district court and complied with the court's order to turn it over to the defense. But the court also sealed the file. Since then some of the information was made public. The defendants filed the motion so that it could use the information for ongoing litigation, including Freedom of Information Act litigation. The defendants had sufficient standing to make the motion because they alleged actual injury due to their need to use the information in litigation. The government had the burden to overcome the presumption in favor of open judicial records, but didn't bother to state what interest there was in keeping the records secret. Instead the court improperly placed the burden on the defendants to show a compelling need for the documents. At the very least the court could have allowed release of information that had already been made public. On remand the government would be given a chance to disclose its interests in secrecy. The 10th suggested the district court should expedite the proceedings.