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Ever since March 10, 2008, when The New York Times broke the story that then-New York governor Eliot Spitzer was linked to a prostitution ring, questions have lingered over the federal governmentâs role, interest, and history in the case that brought down the governor.
One set of documents that could shed light on the matter are materials related to the wiretap that ensnared Spitzer, including the applications investigators filed with New York-based district court judges requesting permission tap a cell phone used by the Emperorâs Club prostitution serviceâthe service used, in turn, by Spitzer.
And today a three-judge panel at the Second Circuit Court of Appeals ruled in a case being waged by The New York Times that the general public has no right to see those records.
âWe appreciate that this panel gave serious consideration to what was a novel issue, even if we are disappointed with the decision,â Times counsel David McCraw (who has contributed to CJR) told CJR shortly after reading the ruling.
The case began in December 2008, when the Times moved to unseal the wiretap materials. In February 2009, Judge Jed Rakoff of the Southern District of New York agreed with the request. He ruled that the applications were court records, and that court records carry a long presumption of public access. Furthermore, Rakoff held that a federal wiretapping statute makes it clear that judges have the discretion to release wiretap applications if there is âgood causeâ to do so–and the judge determined that Congress, in writing that standard, meant to allow judges to weigh the publicâs common-law right to access the documents as they would any other judicial record in making their determinations.
Even though Spitzer and sixty-six other people were mentioned in the documents, concerns about privacy were abated by the Timesâs agreement with the government to accept copies with Spitzerâs name intact, and all others redacted.
âAs much as we value public access, we didnât see a court as likely to rule against their privacy interests,â said McCraw. But McCraw argued that Spitzer, by virtue of his being a public official at the time of the taps, and through his subsequent public addressing of the subject, however circumspect, had greatly diminished his privacy concerns.
In entering the redaction agreement, the government indicated that it too had no trouble with Spitzerâs name remaining legible if a court were to order the documents to be released. But Spitzer himself does, as he attempted to intervene with a privacy claim. But he didnât raise an objection with Rakoff, until after the judge had ruled in the Timesâs favor and the government had initiated its appeal. Rakoff said that the ex-governor was simply too late, writing, âThis Court is not without sympathy for Mr. Spitzerâs desire to avoid another round of the salacious coverage that has attended his involvement with the Emperorâs Club. Sympathy, however, can neither create jurisdiction nor obviate untimeliness.â
Rakoffâs ruling was stayed while the government sought an appeal at the Second Circuit. And in today’s ruling, the appellate court overturned Rakoff, ruling that The New York Timesâs request did not meet the âgood causeâ standardâone, judges noted, defined neither by Congress in its 1968 statute nor by the Supreme Court. While the panel agreed with Rakoff that the wiretap applications were indeed judicial records, they found that those applications wereâlike other classes of court records involving trade secrets, grand juries, or other sensitive mattersânot subject to release. (Spitzer was allowed to participate at the appellate level on an amicus basis, but his or any other privacy concerns are absent from the ruling.)
Key to the decision was the appellate court’s finding that Congress, in drafting the âgood causeâ standard, had meant to supercede the common-law tradition of open access, rather than incorporating or adopting it. Furthermore, the court pointed to 25-year-old Second Circuit precedent (interestingly enough, stemming from NBCâs request to see similar documents after Wayne Newton famously sued the network for a report suggesting he maintained links to Las Vegas mafiosi): the finding that the only parties with a chance of meeting the statuteâs âgood causeâ standard are those aggrieved by the wire tapâpeople, in other words, whose conversations were captured by the tap.
âWe believe the law is broader than that,â said McCraw. âWe still believe that public access to these records is important to monitoring the work of law enforcement.â
The New York Times is weighing an appeal to the full Second Circuit.
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