The opinion of the court was delivered by: GETTLEMAN
Eyecare Physicians of America ("Eyecare") has appealed Magistrate Judge Joan H. Lefkow's June 7, 1995, opinion and order denying Eyecare's motion to unseal an affidavit filed by the government in support of a search warrant issued November 15, 1994, for Eyecare's premises in Chicago. The parties have filed numerous briefs in this court as well as before Magistrate Judge Lefkow, and the government has filed two additional affidavits, also under seal (which Eyecare would also like to unseal), to support its opposition to Eyecare's motion. In addition, the court has held two hearings on the appeal and has held one in camera hearing with counsel for the government.
After thoroughly reviewing the material submitted by the parties, the affidavits in question, and the relevant legal authorities, the court finds itself in full agreement with Magistrate Judge Lefkow's excellent opinion (attached), which the court incorporates herein. In examining the issues presented by this appeal, especially in the absence of Seventh Circuit precedent,
the court was most concerned with protecting the common law right to inspect and copy judicial records as recognized by the Supreme Court in Nixon v. Warner Bros. Communications, Inc., 435 U.S. 589, 597, 98 S. Ct. 1306, 1312, 55 L. Ed. 2d 570 (1978). Although in the instant case Eyecare, a subject of the government's investigation, seeks disclosure of the affidavits only to itself and its attorneys, the court must be mindful of the rights of the public as well as the parties when examining the issue of access to judicial records. See e.g. Jepson, Inc. v. Makita Elec. Works Ltd., 30 F.3d 854, 858-59 (7th Cir. 1994).
Courts both in and out of this circuit have dealt with similar issues in various ways. On one extreme, the Ninth Circuit in Times Mirror Co. v. United States, 873 F.2d 1210 (9th Cir. 1989), has held, in effect, that the government's right to seal search warrant documents is almost absolute. On the other end of the spectrum is the decision in In the Matter of the Search of Wag-Aero, Inc., 796 F. Supp. 394 (E.D. Wis. 1992), in which the court held that the subject of a search has the right to unseal the affidavit in order to determine if it wishes to challenge the search warrant or obtain return of its property under Fed. R. Crim. P. 41(e).
This court prefers the approach taken by the Fourth Circuit in In re Baltimore Sun Co. v. Goetz, 886 F.2d 60 (4th Cir. 1989). In that case, the court noted that Fed. R. Crim. P. 41(g) facilitates the common law qualified right of the press and the public to access to judicial records by requiring the judicial officer who issues the warrant (i.e., the magistrate judge) to file all papers relating to the warrant in the clerk's office. That judicial officer is required to exercise her or his discretion in ruling on a request by the government to seal any part of the warrant papers for a specified period of time, or until further order. That decision to seal may not be abdicated to the government. Id. at 64-65. The Goetz court went on to hold that, "the judicial officer may deny access when sealing is essential to preserve higher values and is narrowly tailored to serve that interest," but that "the judicial officer must consider alternatives to sealing the documents. This ordinarily involves disclosing some of the documents or giving access to a redacted version." Id. at 65-66 (internal citations omitted).
Applying this procedure [to consider alternatives such as partial disclosure or redaction], I have reviewed the affidavits supporting the motion [to seal] and the affidavits supporting the warrant. I reaffirm my conclusion that probable cause supported the issuance of the warrant. I reaffirm my conclusion that disclosure of the affidavit could result in breaching the secrecy of grand jury testimony and subpoenas, that the privacy of implicated persons who have not been charged, other witnesses and patients would be impaired by disclosure; that the identity of unnamed subjects would become clear to [Eyecare], which disclosure could jeopardize the investigation in light of particular instances revealed in the government's affidavit made in opposition to the pending motion in which persons on behalf of [Eyecare] have taken actions to discourage cooperation; that disclosure of numerous potential witnesses could result in their unwillingness to cooperate with the government; and that the scope of the investigation would be revealed so as to give [Eyecare] premature guidance concerning potential charges.
I have also considered whether portions of the affidavit could be disclosed without the difficulties recited above. I agree with the government's position that the redaction would entail such a large portion of the affidavit that it is not a practical alternative. It is simply not a realistic solution in light of the complexity of the investigation, the interrelatedness of the material contained in the affidavit, the numerous witnesses involved, and the privacy interests at stake.
In reviewing Magistrate Judge Lefkow's decision,
the court was initially unconvinced that some portion of the affidavits could not be unsealed. For this reason, the court ordered the government to submit redacted versions of the affidavits. The court then reviewed the redacted and unredacted versions of the original affidavit of Postal Inspector James H. Tendick submitted in support of the warrant, a second affidavit of agent Tendick submitted to Magistrate Judge Lefkow in opposition to Eyecare's motion to unseal, along with a third affidavit of JoAnne Pattara, a case agent involved in the investigation. Agent Pattara's affidavit was filed with this court to explain the redactions. The court also held an in camera hearing with Jacqueline Stern, the Assistant United States Attorney assigned to this case, and Ms. Pattara, at which the issue of redaction and partial disclosure were thoroughly discussed.
This rather extensive review has convinced the court that ordering the release of the redacted version of the affidavits is impossible in the instant case for the reasons articulated by Magistrate Judge Lefkow. In addition to those reasons, the court also finds that a partial disclosure or redaction might mislead the reader to mistakenly conclude that certain persons and entities are either subjects of the investigation or are cooperating with the government. Thus, to redact the affidavits in an effort to legitimately protect the government's investigation might lead to the embarrassment of persons connected with Eyecare as employees, patients or otherwise, who have nothing to do with the investigation. It would be improper at this stage of the investigation to opt for partial disclosure in the name of access to judicial records only to violate the privacy rights of innocent persons.
For the reasons set forth above, Eyecare's appeal of the Magistrate Judge's order denying its motion to unseal the affidavit filed in support of the search warrant is denied. All papers under seal before the Magistrate Judge and this court, as well as the transcript of this court's in camera hearing shall remain under seal until the Magistrate Judge unseals the original ...