Newsday, Inc. V. Morgenthau Supreme Court of New York, Appellate Division, First Department February 17, 2004, Decided ; February 17, 2004, Entered 2868N

Neutral As of: June 13, 2013 4:34 PM EDT

Newsday, Inc. v. Morgenthau Supreme Court of New York, Appellate Division, First Department February 17, 2004, Decided ; February 17, 2004, Entered 2868N

Reporter: 4 A.D.3d 162; 771 N.Y.S.2d 639; 2004 N.Y. App. Div. LEXIS 1651 The intervenor argued that the appeal was not properly before the appellate court. This argu- Matter of Newsday, Inc., Appellant. Robert D. ment was rejected. Since the warrant applica- Morgenthau, as District Attorney of New York tion process had historically not been open to the County, Intervenor-Respondent. public and public access would have hin- dered, rather than facilitated, the warrant pro- Subsequent History: [***1] cess and the government’s ability to conduct Appeal dismissed by Newsday, Inc. v. Morgen- criminal investigations, the appellate court thau, 3 N.Y.3d 651, 816 N.E.2d 561, 2004 ruled that the warrant records sought were not N.Y. LEXIS 1613, 782 N.Y.S.2d 689 (2004) subject to the qualified First Amendment right of access. Even if there were a qualified constitu- Prior History: Newsday, Inc. v. Morgenthau, tional right of access to warrant records, 2003 N.Y. App. Div. LEXIS 11333 (N.Y. App. Div. such a right would have been outweighed if 1st Dep’t, Oct. 28, 2003) there was substantial probability that disclosure would have compromised an ongoing investigation, a circumstance that justified denial of ac- Core Terms cess in this case. The interests advanced in op- public access, warrant application, access posing disclosure-the protection of the rights, significant consideration, criminal identity of a confidential informant and to investigation, ongoing investigation, avoid compromising an ongoing investigation- government’s ability, criminal proceeding, were substantial and were not outweighed by open to the public, general public, positive the generalized public interest in the warrant ap- role, disclosure, outweighed, hinder, media plication process.

Case Summary Outcome The judgment was affirmed. Procedural Posture Appellant corporation brought an original pro- LexisNexis® Headnotes ceeding seeking to unseal materials submitted in support of a search warrant. The Su- Constitutional Law > ... > Fundamental Free- preme Court, New York County (New York), doms > Freedom of Speech > Scope denied the corporation’s motion to unseal the Criminal Law & Procedure > Search & Sei- materials. Respondent intervenor was given zure > Search Warrants > General Overview permission to intervene and the proceeding was HN1 In determining whether the public or me- converted to a direct appeal. dia has a qualified First Amendment right of access to criminal proceedings, the significant Overview considerations are whether the place and process have historically been open to the pre Page 2 of 3 4 A.D.3d 162, *162; 771 N.Y.S.2d 639, **639; 2004 N.Y. App. Div. LEXIS 1651, ***1 and general public, and whether public access or about June 10, 2003, which denied petition- plays a significant positive role in the function- er’s motion to unseal materials submitted in ing of the particular process in question. support of a search warranted executed on or about May 16, 2003, unanimously affirmed, Constitutional Law > ... > Fundamental Free- without costs. doms > Freedom of Speech > Scope Criminal Law & Procedure > Search & Sei- We reject respondent’s argument that this ap- zure > Search Warrants > General Overview peal is not properly before us. This Court prop- HN2 The warrant application process has his- erly acquired jurisdiction over [**640] the torically not been open to the public and pub- matter since petitioner commenced an original lic access would hinder, rather than facilitate proceeding in this Court (see CPLR 506 [b] [1]; the warrant process and the government’s abil- 7803 [2], [4]), respondent [*163] was given ity to conduct criminal investigations. permission to intervene in the matter and the proceeding was converted to a direct appeal (see CPLR 103 [c]; Matter of Newsday, Inc. v Headnotes/Syllabus Soloff, 308 A.D.2d 395, 765 N.Y.S.2d 489 [2003]). Headnotes HN1 In determining whether the public or media has a qualified First Amendment right of Crimes--Sealing of Records--Media Access to access to criminal proceedings, the significant Warrant Records.--Since warrant application considerations are whether [***2] the place and process has historically not been open to pub- process have historically been open to the lic and public access would hinder warrant pro- press and general public, and whether public access and government’s ability to conduct crimi- cess plays a significant positive role in the nal investigations, warrant records sought functioning of the particular process in ques- were not subject to qualified First Amendment tion (see Press-Enterprise Co. v Superior Ct., right of access; moreover, there was substan- 478 U.S. 1, 8, 92 L. Ed. 2d 1, 106 S. Ct. 2735 tial probability that disclosure would compro- [1986]). Since HN2 the warrant application mise ongoing investigation--access under com- process has historically not been open to the mon law was also properly denied since public and public access ″would hinder, rather interests advanced by respondent in opposing than facilitate, the warrant process and the gov- disclosure, protection of identity of confiden- ernment’s ability to conduct criminal investiga- tial informant and avoiding compromising on- tions″ (Times Mirror Co. v United States, going investigation, were substantial and not 873 F.2d 1210, 1215 [1989]; and see Matter of outweighed by generalized public interest in Baltimore Sun Co. v Goetz, 886 F.2d 60, warrant application process. 64-65 [1989]; United States v Cianci, 175 F. Supp. 2d 194, 200-201 [2001]; but see In re Counsel: For Petitioner-Appellant: David A. Search Warrant for Secretarial Area Outside of Schulz & Gayle C. Sproul. Off. of Gunn, 855 F.2d 569, 573-574 [1988], cert denied sub nom. Pulitzer Publ. Co. v Dug- For Intervenor-Respondent: Michael S. Mor- gan, 488 US 1009, 102 L. Ed. 2d 784, 109 S. gan. Ct. 793 [1989]), we conclude that the warrant records sought are not subject to the qualified Judges: Concur--Buckley, P.J., Sullivan, Wil- First Amendment right of access. Even assum- liams, Gonzalez, JJ. ing, arguendo, that there is a qualified constitutional right of access to warrant records, such Opinion a right would be outweighed if there is substantial probability that disclosure would [*162] [**639] Order, Supreme Court, New compromise [***3] an ongoing investigation York County (Brenda Soloff, J.), entered on (see In re Search Warrant for Secretarial Area Page 3 of 3 4 A.D.3d 162, *163; 771 N.Y.S.2d 639, **640; 2004 N.Y. App. Div. LEXIS 1651, ***3

Outside Off. of Gunn, 855 F.2d at 574; In re and to avoid compromising an ongoing investi- Search Warrants in Connection with Investiga- gation--are substantial and are not outweighed tion of Columbia/HCA Healthcare Corp., by the generalized public interest in the war- 971 F. Supp. 251, 253 [1997]; Matter of Search rant application process (see People v Cas- Warrants for Natl. Bldrs. Corp., 833 F. Supp. tillo, 80 N.Y.2d 578, 583, 607 N.E.2d 1050, 592 644, 646 [1993]), a circumstance that would jus- N.Y.S.2d 945 [1992], cert denied 507 U.S. tify denial of access in this case. 1033, 123 L.Ed. 2d 477, 113 S. Ct. 1854 [1993]; People v Darden, 34 N.Y.2d 177, 181, 313 Access under the common law was also prop- N.E.2d 49, 356 N.Y.S.2d 582 [1974]; and see erly denied (see People v Burton, 189 A.D.2d Times Mirror Co. 532, 535-536, 597 N.Y.S.2d 488 [1993]; and , 873 F.2d at 1217-1219; United States v Cianci, 175 F. Supp. 2d at see Nixon v Warner Communications, Inc., 435 202). [***4] U.S. 589, 597-598, 55 L. Ed. 2d 570, 98 S. Ct. 1306 [1978]). The interests advanced by respondent in opposing disclosure--the protec- Concur--Buckley, P.J., Sullivan, Williams and tion of the identity of a confidential informant Gonzalez, JJ.