Appeal from orders entered by the United States District Court for the Western District of New York (Michael A. Telesca, Judge) sealing a plea agreement. We vacate the first order sealing the plea agreement because that order violated the Ithaca Journal's first amendment right of access to criminal proceedings. We affirm the second order because the redacted portion of the agreement contained matters affecting a grand jury proceeding and an ongoing government investigation.
Winter and Mahoney, Circuit Judges, and Stewart District Judge.*fn*
The Ithaca Journal appeals from two orders entered by Judge Telesca sealing a plea agreement. The first order denied the Journal access to the entire plea agreement, while the second denied access only to a paragraph of that agreement. We vacate the first order because it did not comply with the procedural and substantive requirements of the first amendment, and affirm the second order because the redacted portion of the agreement contained confidential matters involving a grand jury proceeding and an ongoing criminal investigation.
We briefly summarize the relevant facts. On April 3, 1987, Louis Haller, the business agent for Local 109 of the Plumbers and Pipefitters Union in Ithaca, New York, pled guilty to embezzlement of union funds in violation of 29 U.S.C. § 501(c) (1982). That same day, a three-page plea agreement was filed as a publicly available document in the district court. Because the Journal had published a news story on Haller's indictment in June 1986, his difficulties with the law were a matter of public interest. On April 14, 1987, after being informed that Haller was denying that he had pled guilty to embezzlement, a Journal reporter contacted an Assistant United States Attorney ("AUSA"), who explained Haller's plea. However, the AUSA refused to provide the reporter with a copy of the plea agreement on the ground that it contained "sensitive" information. After learning that a second Journal reporter was attempting to obtain a copy of the agreement, the AUSA telephoned the district court clerk's office and requested that the agreement be sealed. This request was apparently granted, for the reporter was denied access to the agreement, although the district court's docket contains no entry of an order sealing the agreement on April 14. Judge Telesca, however, entered a written order sealing the agreement the next day.
The Journal then moved to intervene and to unseal the plea agreement. The government opposed the motion to unseal on the ground that unsealing would "bring to light information that will be presented to a United States Grand Jury" and would compromise an ongoing investigation. At oral argument, during a colloquy concerning the government's failure to provide public notice of its intention to seal the agreement, the district court stated that "[t]he idea of giving notice to the public before you seal [a plea agreement] is a notion of Camelot I think. How do you pragmatically accomplish that?" The district court then ruled that paragraph four of the agreement contained "sensitive" material and would remain sealed. The remaining portions of the agreement were unsealed. The district court did not make specific findings because he believed such findings would "immediately let the cat out of the bag." He stated, however, that "[t]he best record possible is for anybody to read the unredacted portion; compare it with my conclusions and findings, and it will be explanatory." Six weeks after the May 7 order and two weeks after the Journal filed its notice of appeal, paragraph four was unsealed by the district court upon application of the AUSA. Paragraph four provided that:
4. Defendant will cooperate with the government by providing complete and truthful information regarding his knowledge of criminal activity having to do with labor organization officers or employees in conjunction with employment practices at the Nine Mile Two Nuclear Power Plant in Oswego, New York. Defendant will be required to testify truthfully and completely before a Grand Jury and at such pretrial and trial proceedings as the government may deem necessary.
We have appellate jurisdiction under the "collateral order" doctrine of Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 93 L. Ed. 1528, 69 S. Ct. 1221 (1949), because an order of closure "is a final decision as to an intervenor." In re Herald Co., 734 F.2d 93, 96 (2d Cir. 1984). We also note that although the relief that the Journal sought below - an unredacted copy of Haller's plea agreement - has already been granted, we conclude that this action continues to be a live controversy because it is "capable of repetition, yet evading review." As in Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S. Ct. 2735, 2739, 92 L. Ed. 2d 1 (1986) ("Press-Enterprise II"), and Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 603, 73 L. Ed. 2d 248, 102 S. Ct. 2613 (1982), "it can reasonably be assumed" that the Journal will someday be subjected to another order similar to those of April 15 and May 7, and that this order will likely evade review.*fn1
Our decision on the merits is governed by In re Herald. In that decision, we recognized that the first amendment guarantees the public some right of access to pretrial suppression hearings, 734 F.2d at 99, and that vindication of this right requires that designated procedural steps be followed in order to give some form of public notice and an opportunity to be heard. Id. at 102. In the instant case, we must first determine whether a right of access to plea agreements exists, and, if so, whether the district court's closure orders of April 15 and May 7 complied with the substantive and procedural requirements of the first amendment.
As to the first issue, we conclude there is a right of access to plea hearings and to plea agreements. See In re Washington Post, 807 F.2d 383, 389 (4th Cir. 1986). Plea hearings have typically been open to the public, and such access, as in the case of criminal trials, see Globe Newspaper, 457 U.S. at 605-06 (citing Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 569, 65 L. Ed. 2d 973, 100 S. Ct. 2814 (1980) (plurality opinion)), serves to allow public scrutiny of the conduct of courts and prosecutors. Moreover, the taking of a plea is the most common form of adjudication of criminal litigation. See Brady v. United States, 397 U.S. 742, 752, 25 L. Ed. 2d 747, 90 S. Ct. 1463 (1970) (well over three-fourths of criminal convictions rest on guilty pleas). Accordingly, the qualified first amendment right of access extends to plea hearings and thus to documents filed in connection with those hearings. See In re New York Times Co., 828 F.2d 110, 114 (2d Cir. 1987) (qualified right of access extends to documents filed in connection with pretrial motion to suppress).
We turn now to the April 15 order. The government concedes that it did not follow the precise procedures designated in In re Herald. It justifies this procedural lapse on the ground that the reporter's April 14 request for the plea agreement created an "emergency" and that it was not "pragmatically feasible" to provide notice without compromising the ongoing investigation. The district court seemed to agree when it observed that notice was "a notion of Camelot" - a remark intended, we trust, as an observation that this court is sometimes utopian, not that it is a musical comedy.
We believe the government and the district court greatly exaggerate the difficulty of complying with In re Herald.*fn2 That decision recognized that "notice requirements must remain sufficiently flexible to accommodate the exigencies of the litigation process and avoid unwarranted delays." 734 F.2d at 102. All that In re Herald requires is that except in extraordinary circumstances the public have a means of learning that a closure or sealing order has been proposed or issued. In the case of plea agreements, notice that the government has moved to seal the agreement should be promptly entered in the public docket files maintained by the district court clerk's office. See id. Leave of court may be sought to file the text of the motion to seal with the plea agreement attached under seal pending a disposition of the motion by the district court. That disposition, and the making of requisite findings, need not be delayed so long as the district court subsequently allows interested parties to intervene and affords them a prompt hearing to contest its decision. The district court may of course continue the sealing of the motion papers in aid of an order sealing part or all of the plea agreement and may, where appropriate, put the contents of its decision under seal. In such a case, the fact that a sealing ...