Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 87 CR 378, Prentice H. Marshall, Judge.
Cudahy and Manion, Circuit Judges, and Henley, Senior Circuit Judge.*fn*
This appeal requires that we decide whether, and under what circumstances, a district court may release the presentence investigation report of a criminal defendant to members of the news media. The district court authorized disclosure of the defendant's presentence report under the "common law right of access to judicial records. See Nixon v. Warner Communications, Inc., 435 U.S. 589, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978). The government appeals, arguing that the district court applied an incorrect legal standard in determining whether disclosure was appropriate. We vacate the district count's disclosure order and remand for reconsideration under the appropriate legal principles.
Facts and Proceedings Below
The defendant, Michael Corbitt, served as Chief of Police of the Village of Willow Springs, Illinois for approximately ten years, ending in 1982. On May 20, 1987, Corbitt was indicted in the Northern District of Illinois on three counts of extortion and racketeering, in violation of 18 U.S.C. sections 1951 and 1962(c) and (d). The indictment alleged that, during his tenure as Chief of Police, Corbitt accepted bribes in exchange for permitting various criminal enterprises to operate with impunity, and that he extorted payments from businesses in Willow Springs and elsewhere. Corbitt pled guilty to all three counts; he was sentenced on January 11, 1988 to four years on each count, the sentences to run concurrently.
At Corbitt's sentencing, Judge Prentice Marshall stated that he had decided to impose a sentence lower than that recommended in the presentence report due to an unprecedented, and apparently spontaneous, torrent of letters written on Corbitt's behalf. In statements directed at the defendant, the judge remarked that "[one] of the things that struck me about [the letters] is not just that ordinary folk have come forward in your behalf, but . . . elected . . . and appointed public officials in the community in which you have resided, have come forth for you.
Corbitt's sentencing provoked an outcry in Willow Springs; Village residents expressed a strong interest in learning which public officials had written letters, many apparently on official letterhead, seeking leniency for Corbitt. Three days after Corbitt's sentencing, the Board of Trustees of Willow Springs unanimously approved a resolution stating that no Village official had been authorized to use his or her office to secure a lighter sentence for Corbitt; the board also sent a letter to Judge Marshall, asking him to allow public access to the letters written by Village officials.
The Southtown Economist, a newspaper covering the Village of Willow Springs, reported extensively on Corbitt's conviction and sentencing. On January 19, 1988, Pulitzer Community Newspapers, Inc. ("Pulitzer"), publisher of the Southtown Economist, moved to intervene in Corbitt's case to secure release of the presentence report and testimonial letters on which Judge Marshall had relied in sentencing. Pulitzer argued that, since Corbitt's conviction involved misconduct in office, the entire criminal proceeding was "affected with a public interest." Pulitzer also asserted that the public had an especially strong interest in learning what factors, possibly including the pleas of Village officials, had persuaded the district court to impose what was perceived to be an inordinately lenient sentence. Corbitt objected to disclosure of any sentencing materials which had not previously been disclosed during the sentencing hearing; however, he declined to file a brief opposing Pulitzer's motion in the district court, and has not participated in this appeal. The United States filed a brief stating that, while it did not object to disclosure of the unsolicited letters written on Corbitt's behalf, it opposed the disclosure of any part of Corbitt's presentence report.
On August 24, 1988, the district court issued a memorandum opinion granting Pulitzer substantial access to the presentence report and letters. Judge Marshall began his opinion by noting that prior decisions of this court, which held that a criminal defendant must show a "compelling need" for disclosure of the presentence report of a government witness, were not controlling because, in those cases, "no third party had sought release of [the] presentence report." The court then noted that, through a series of amendments to Federal Rule of Criminal Procedure 32, there had been a "gradual relaxation" of the traditional secrecy of the presentence report, culminating in the current version of Rule 32, which mandates defense access to the report in every case. Relying on United States v. Schlette, 842 F.2d 1574 (9th Cir. 1988), the court also rejected the government's argument that the "free flow of information" to the sentencing judge would be curtailed if the report were made public.
Judge Marshall declined to rely on the first amendment right of access to criminal proceedings as a basis for disclosure, but instead turned to the "common law right of access" to judicial records recognized in Nixon v. Warner Communications, Inc., 435 U.S. 589, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978). Under this theory, according to the district court, the party seeking access to a document "must identify a proper interest in the information it seeks; for instance, 'the citizen's desire to keep a watchful eye on the workings of public agencies' or 'a newspaper publisher's intention to publish information concerning the operation of government. " Once such an interest is shown, a presumption arises that disclosure is appropriate; the party opposing disclosure may only defeat the presumption by identifying, with specificity, interests in confidentiality which outweigh the right of access.
The court found that Pulitzer's "assertion of a public interest in keeping watch over official misconduct triggers application of the common law right of access to judicial records." Judge Marshall also held that the government had failed to rebut the presumption of openness, since it relied on "conjectural [statements]" regarding the general policies served by confidentiality, rather than on specific facts which counselled against disclosure of Corbitt's presentence report in particular. The court observed that the government's concern over the potential harm to witnesses mentioned in the report could be addressed by redacting portions of the report identifying witnesses whose names had not been disclosed in open court. The court also determined, sua sponte, that certain portions of the report should be redacted to protect the privacy of the defendant and others. However, except for the redactions, Pulitzer was even access to the entire presentence report. The government appeals; Judge Marshall has stayed the disclosure authorized by his opinion pending resolution of the appeal.*fn1
Source of the District Court's Authority to Disclose Corbitt's Presentence Report
Pulitzer argues that disclosure of Corbitt's presentence report is warranted under either of two separate, but related, legal theories: (1) the common law right to inspect and copy judicial records, or (2) the first amendment right of access to criminal proceedings.
The Common Law Right of Access to Judicial Records
In Nixon v. Warner Communications, Inc., 435 U.S. 589, 55 L. Ed. 2d 570, 98 S. Ct. 1306 (1978), the Supreme Court recognized a "common law right of access" to judicial records. This right of access establishes, as a general matter, that court files should be open to the public for inspection and copying. However, the Court observed that the "common law right of access is a flexible concept, which allows the district court to deny access where its records would be used for "improper purposes"; specifically, the discretionary decision whether to release judicial records should be informed by a "sensitive appreciation of the circumstances that led to . . . [the] production [of the particular document in question]." Id. at 598, 602-03; United States v. Edwards, 672 F.2d 1289, 1293 (7th Cir. 1982).
While this court has recognized that the common law right of access creates a "strong presumption" in favor of public access to materials submitted as evidence in open court, id. at 1294, this presumption should not apply to materials properly submitted to the court under seal.*fn2 Where judicial records are confidential, the party seeking disclosure may not rely on presumptions, but must instead make a specific showing of need for access to the document. Of course, the public's right to inspect judicial documents may not be evaded by the wholesale sealing of court papers. Instead, the district court must be sensitive to the rights of the public in determining whether any particular document, or class of documents, is appropriately filed under seal. The question then becomes whether presentence reports are properly filed under seal; we discuss below the interests which support the confidentiality of presentence reports.
The First Amendment Right of Access to Criminal Proceedings
The first amendment right of access to judicial proceedings provides no broader right to disclosure of the presentence report. The Supreme Court has conducted a two-pronged inquiry in order to determine whether any particular stage of a criminal proceeding should be open to the public: first, the Court has considered "whether the place and process have historically been open to the press and general public, "Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 8, 92 L. Ed. 2d 1, 106 S. Ct. 2735(1986); second, the Court has asked "whether public access plays a significant positive role in the functioning of the particular process in ...