UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


IN RE: SEALED CASE


99-3024a

D.C. Cir. 2000


*	*	*


Edwards, Chief Judge: Appellants in this case, a group of news
organizations, seek to require the District Court to establish a
public docket of grand jury ancillary proceedings to facilitate
greater access to information emanating from the grand jury. The
District Court denied appellants' request for 


a generic rule requiring public docketing of all grand jury matters.
Appellants now appeal the judgment of the District Court. 


This is the second time that this case has come before this court. In
In re Motions of Dow Jones & Co., 142 F.3d 496 (D.C. Cir. 1998) ("Dow
Jones"), this court held that there is no First Amendment right of
access to grand jury ancillary proceedings. See id. at 502-04. The
decision in Dow Jones also made it clear that appellants have neither
a statutory right, apart from Federal Rule of Criminal Procedure 6(e),
nor a common law right of access to matters before the grand jury. See
id. at 504. The only issue left unresolved in Dow Jones was the
meaning of the District Court's Local Criminal Rule 6.1 (formerly
Local Rule 302, hereafter referred to as "Rule 6.1"). Because Rule 6.1
"provides a limited means for disclosing non-secret" grand jury
matters, id. at 504, the court in Dow Jones remanded the case to the
District Court to consider the feasibility of a redacted public docket
for grand jury ancillary proceedings. On remand, the District Court
declined to establish an open docket for all grand jury- related
motions. The District Court held that it was under no legal obligation
to establish a generic rule, and, further, that such a rule would be
unduly burdensome to administer to no good end. See Mem. Order at 3-5,
Jan. 20, 1999, reprint- ed in Joint Appendix ("J.A.") 116, 118-20.
Appellants appeal this order, asking that we overturn the District
Court's decision, or, in the alternative, that we ensure that,
pursuant to Rule 6.1, press and other media organizations are allowed
to file motions for public docketing in individual cases. 


The District Court's judgment denying appellants' request for a generic
rule requiring public docketing of all grand jury- related matters is
affirmed. There is no constitutional, statu- tory, or common law right
requiring such a rule; indeed, by their own admission, appellants
acknowledge that there is not even a widespread practice of public
docketing of grand jury matters in the federal courts in the United
States. In these circumstances, it would be presumptuous, at best, for


court to re-write the District Court's local rules covering access to
materials before the grand jury. 


The appellants' alternative request for relief is less trouble- some,
for it finds support in Rule 6.1. Reasonably construed, Rule 6.1 says
that, with respect to grand jury ancillary proceedings, when a party
makes a request for a redacted docket in a specific case, the District
Court will duly consider the request and will, if it denies the
request, offer some explanation. Any denial must, of course, be based
on some- thing more than the justification that explains the denial of
across-the-board docketing. Rule 6.1 would be heartless without the
possibility of such an ad hoc procedure, so we have no doubt that the
District Court will entertain such requests as they arise. 


I. BACKGROUND 


The events giving rise to this appeal are fully recounted in Dow Jones,
so we will only briefly discuss the facts. Early in 1998, Independent
Counsel Kenneth Starr convened a grand jury to consider evidence
relating to matters that eventually led to presidential impeachment
proceedings. See Dow Jones, 142 F.3d at 497-98. The grand jury spawned
a flood of ancillary proceedings as witnesses challenged subpoenas and
objected to various aspects of the investigation. Under Local Civil
Rule 40.7(3), these ancillary proceedings were held before the Chief
Judge. Although grand jury proceedings themselves are entirely secret,
proceedings ancillary to the grand jury are subject to slightly
different rules. The Feder- al Rules of Criminal Procedure require
"matters affecting a grand jury proceeding to be closed to the extent
necessary to prevent disclosure of matters occurring before a grand
jury." Fed. R. Crim. P. 6(e)(5). Local Criminal Rule 6.1, in turn,


[p]apers, orders and transcripts of hearings subject to this rule, or
portions thereof, may be made public by the court on its own motion or
on motion of any person upon a finding that continued secrecy is not
necessary to 


prevent disclosure of matters occurring before the grand jury. 


L.Cr.R. 6.1. 


The press and other media services, quite predictably, sought access to
ancillary proceedings and related documents emanating from the grand
jury convened by the Independent Counsel. Motions were filed with the
District Court request- ing access to certain proceedings and also
asking the District Court to establish procedures, including a public
docket of all ancillary proceedings, to facilitate media access. The
District Court, however, denied media requests to establish special
"procedures relating to public access to judicial proceedings and
records." Order, March 18, 1998, reprinted in J.A. 68 (internal
quotation marks omitted). The media appealed, ar- guing "that the
blanket closure of judicial proceedings and the failure to provide
procedural safeguards prior to closure violate the First Amendment."
Dow Jones, 142 F.3d at 499 (internal quotation marks omitted). 


The court in Dow Jones recognized that, under federal and local rules,
ancillary proceedings that do not reveal " 'matters occurring before
the grand jury' " need not be closed. Id. at 501 (citation omitted).
Most importantly, however, the deci- sion in Dow Jones held that the
First Amendment does not require the District Court to open grand jury
ancillary pro- ceedings. Rather, the court noted, Rule 6.1 "gives [the
press] the most it could expect from its constitutional claim." Id. at
500. 


Rule 6.1 addresses motions and orders relating to proceed- ings
ancillary to the grand jury, providing that such matters "shall be
filed under seal" and that "[a]ll hearings on matters affecting a
grand jury proceeding shall be closed." L.Cr.R. 6.1. However, the rule
also provides that matters "may be made public by the court on its own
motion or on motion of any person upon a finding that continued
secrecy is not necessary to prevent disclosure of matters occurring
before the grand jury." Id. Thus, Rule 6.1 "provides a limited means
for disclosing non-secret matters." Dow Jones, 142 F.3d at 504; see
also id. at 501 (noting that Local Criminal 


Rule 6.1 "appears to mean only that, as an initial matter, all
proceedings relating to the grand jury shall be closed, subject to an
order opening the proceedings"). Given the possibility of access
afforded by Rule 6.1, the court in Dow Jones questioned whether the
District Court should establish an administrative rule or procedure
ensuring a redacted public docket of grand jury ancillary proceedings.
Noting that the District Court had not explained the lack of a public
docket, the court remanded the case for further consideration. 


On remand, the District Court declined to establish a public docket of
"materials filed in connection with any grand jury proceedings." Mem.
Order, Jan. 20, 1999 at 1, reprinted in J.A. 116 (internal quotation
marks omitted). The District Court noted the importance of "secrecy to
the proper func- tioning of the grand jury system." Id. at 2,
reprinted in J.A. 117. Because of the need for secrecy, the court
pointed out, any public docket would of necessity have to be "non-
descriptive" to "protect[ ] the identities of subpoenaed wit- nesses
and targets." Id. at 4, reprinted in J.A. 119. Such a non-descriptive
docket, the District Court held, would be of only limited utility to
the media while imposing undue admin- istrative burdens on the trial
court. The District Court concluded that the administrative burdens,
combined with possible threats to grand jury secrecy, militated
against a public docket for all grand jury ancillary proceedings.
There- fore, the District Court ruled that it would "not waste either
its or the news organizations' time and resources by estab- lishing
such a docket." Id. at 5, reprinted in J.A. 120. The appellants


II. ANALYSIS 


Appellants argue that, under this court's decision in Dow Jones, the
District Court must establish a public docket for all grand jury
ancillary proceedings. Appellants thus seek an order from this court
requiring the District Court to maintain such a public docket.
Appellants are self-servingly generous in their reading of Dow Jones,
for the decision simply does not mandate the result here sought.
Indeed, as appellants' 


counsel was forced to concede at oral argument, the request for a
generic rule requiring public docketing for all grand jury ancillary
matters is completely unprecedented; and, in our view, the request is
also unsupported and unavailing. We therefore affirm the District
Court's judgment on this score. Appellants' alternative request--to
allow parties to file mo- tions pursuant to Rule 6.1 to request public
docketing in specific cases--is unnoteworthy, for it seeks nothing
more than what the rule already provides. 


A. Public Docketing of All Ancillary Grand Jury Proceed- ings 


We begin by noting the extraordinary nature of appellants' request:
mandatory public docketing of grand jury ancillary proceedings is
virtually unknown in the federal courts. Ap- pellants concede that
they can point to no "practice" in the federal courts imposing such a
requirement on district courts. And the decision in Dow Jones plainly
establishes that there is no constitutional, statutory, or common law
principle re- quiring such public docketing. 


Appellants argue that, despite the absence of legal authori- ty, we
should take the uncharted step of imposing a require- ment of public
docketing on our District Court, because the courts have upheld rights
of public docketing and access in other situations not involving grand
jury matters. See Br. for Appellants at 15-17. It is true that the
courts have required public docketing in some judicial proceedings.
See, e.g., United States v. Valenti, 987 F.2d 708, 715 (11th Cir.
1993) (finding a public docket was necessary to protect the public's
and the media's constitutional rights of access to criminal
proceedings); Washington Post v. Robinson, 935 F.2d 282, 289 (D.C.
Cir. 1991) (holding that motions to seal plea agree- ments, for which
there is a First Amendment right of access, must be publicly
docketed); In re State-Record Co., 917 F.2d 124, 128-29 (4th Cir.
1990) (requiring public docketing of a criminal proceeding because of
the constitutional right of access); Webster Groves Sch. Dist. v.
Pulitzer Publ'g Co., 898 F.2d 1371, 1377 (8th Cir. 1990) (ordering
court to produce a redacted public docket of a sealed case to protect


common law right of access); Stone v. University of Mary- land Med.
Sys. Corp., 855 F.2d 178, 181 (4th Cir. 1988) (requiring district
court to maintain a public docket where parties have at least a common
law right of access to proceed- ings); In re Knoxville News-Sentinel
Co., 723 F.2d 470, 475- 76 (6th Cir. 1983) (admonishing district court
to publicly docket motions to seal proceedings where there is at least
a common law right of access). However, this legal authority does not
hold, or even suggest, that there must also be public docketing of
grand jury ancillary proceedings. As appellants readily concede, the
grand jury context is unique. It is because of their unique status
that grand jury processes are not amenable to the practices and
procedures employed in connection with other judicial proceedings. 


There is a plethora of authority recognizing that the grand jury
context presents an unusual setting where privacy and secrecy are the
norm. See, e.g., Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S.
211, 218 (1979); In re Sealed Case, 151 F.3d 1059, 1069-71 (D.C. Cir.
1998). Indeed, as the Supreme Court has noted, the grand jury is not
even a part of the judicial system. See United States v. Williams, 504
U.S. 36, 47 (1992) ("[T]he grand jury is an institution separate from
the courts."). The theory "of its function is that it belongs to no
branch of the institutional Government, serving as a kind of buffer or
referee between the Government and the people." Id. That function
depends on "maintain[ing] the secrecy of the grand jury proceedings in
the federal courts." United States v. Procter & Gamble Co., 356 U.S.
677, 681 (1958). As the Court noted, "[s]ince the 17th centu- ry,
grand jury proceedings have been closed to the public, and records of
such proceedings have been kept from the public eye." Douglas Oil, 441
U.S. at 218 n.9. 


Unlike typical judicial proceedings, grand jury proceedings and related
matters operate under a strong presumption of secrecy. See In re
Sealed Case, 151 F.3d at 1069-71 (holding that the sanctity of the
grand jury process justified an exception to the general rule of
discovery in civil proceed- ings); Globe Newspaper Co. v. Pokaski, 868
F.2d 497, 509-10 (1st Cir. 1989) (holding that blanket sealing of all
grand jury 


records was justified, because grand jury context, unlike other
judicial proceedings, is presumptively closed); In re Subpoena to
Testify Before Grand Jury Directed to Custodi- an of Records, 864 F.2d
1559, 1563 (11th Cir. 1989) (holding that the rule of holding an open
hearing before deciding to close proceedings did not apply in the
grand jury context). The cases cited by appellants, involving
situations other than grand jury ancillary proceedings, are therefore


In the instant case, involving grand jury ancillary proceed- ings,
appellants have a limited right of access pursuant to Rule 6.1. As
noted above, Rule 6.1 provides that when "continued secrecy is not
necessary to prevent disclosure of matters occurring before the grand
jury," ancillary proceed- ings may be made public. L.Cr.R. 6.1. The
District Court has held that a mandatory public docket is not required
by the rule, and that to impose such a rule would be unduly
burdensome. We have no good reason to second-guess the District
Court's interpretation of its own rule, especially since we review the
District Court's decision for abuse of discre- tion. See Federal
Deposit Ins. Corp. v. Bender, 127 F.3d 58, 67 (D.C. Cir. 1997)
(reviewing District Court's decision under local rule for abuse of
discretion). It cannot be said here that the District Court abused its
discretion in failing to promul- gate a generic rule, beyond the
compass of Rule 6.1, requiring a public docket for all grand jury
ancillary proceedings. Accordingly, the judgment of the District Court


B. Alternative Procedure for Redacted Public Docketing in Specific
Cases 


As an alternative to mandatory public docketing in all cases involving
grand jury ancillary proceedings, appellants request a procedure
whereby a party may file a motion pursuant to Rule 6.1 seeking a
redacted public docket in a specific case. This alternative request
for relief raises no momentous issue, because the rule itself already
allows for that which is being sought. 


Appellants' principal concern here is that they be given a right to
request public docketing in specific "high-profile" cases. Counsel for
appellants admitted that there is no 


realistic possibility that the media ever will be unaware of grand jury
proceedings in a high-profile case. History defies any such claim.
Thus, appellants cannot reasonably assert that they are unduly
handicapped without a public docket for all grand jury ancillary
proceedings. Rather, they merely contend that a rule requiring public
docketing in all cases might facilitate media attempts to uncover
matters before a grand jury. This is hardly a justification for an
interpreta- tion of Rule 6.1 beyond its terms. In point of fact, as
counsel acknowledged, the media invariably knows when to request a
public docket in a specific case; as a consequence, appellants are
able to take full advantage of the limited right of access afforded by
Rule 6.1 without the imposition of a public docket covering all grand
jury ancillary proceedings. 


When a party makes a request under Rule 6.1 for a redacted public
docket in a specific proceeding, the District Court must duly consider
the request and, if it denies the request, offer some explanation. The
District Court's expla- nation must bear some logical connection to
the individual request. In other words, it must rest on something more
than the administrative burdens that justified the denial of
across-the-board docketing, and it must be more substantial than, say,
an arguable possibility of leaks. This approach is fully consistent
with Rule 6.1; indeed, the rule would make little sense without the
possibility of such an ad hoc proce- dure. 


This alternative remedy was not directly addressed by the District
Court, because the matter was never pursued on remand by appellants.
Our decision here does not usurp the legitimate administrative control
that the District Court exer- cises over its own docket. Rather, we
simply agree with appellants that Rule 6.1 means what it says in
providing a limited right of access with respect to grand jury
ancillary proceedings in which continued secrecy is not necessary to
prevent disclosure of matters before the grand jury. 


III. CONCLUSION 


The judgment of the District Court is affirmed insofar as it rejects
appellants' request for a generic rule requiring public 


docketing of all grand jury ancillary proceedings. The case is hereby
remanded for further proceedings, as may be neces- sary, consistent
with the foregoing opinion.