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Prison Legal News v EOUSA, US, Reply Brief, FOIA public records

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NO. 10-1510
In the

Supreme Court of the United States
________________

PRISON LEGAL NEWS,
v.

Petitioner,

EXECUTIVE OFFICE FOR UNITED STATES ATTORNEYS,
Respondent.
________________
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the Tenth Circuit
________________
REPLY BRIEF FOR PETITIONER
_________________
NEIL S. SIEGEL
DUKE LAW SCHOOL
Box 90360
210 Science Dr.
Durham, NC 27708
(919) 613-7157

PAUL D. CLEMENT
Counsel of Record
BANCROFT PLLC
1919 M St. NW, Suite 470
Washington, DC 20036
pclement@bancroftpllc.com
(202) 234-0090

LANCE WEBER
HUMAN RIGHTS
DEFENSE CENTER
P.O. Box 2420
Brattleboro, VT 05303
(802) 579-1309

ZACHARY D. TRIPP
KING & SPALDING LLP
1700 Pennsylvania Ave. NW
Washington, DC 20006
(202) 737-0500

Counsel for Petitioner
September 27, 2011

i
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...................................... ii
REPLY BRIEF FOR PETITIONER ...........................1
I.

The Circuits Are Split on the Question
Presented ..........................................................3

II. The Question Presented Goes to the
Heart of What It Means for Public
Records To Be “Public” .....................................6
III. The Shocking Nature of the Crime Only
Underscores the Case For Certiorari ............10
IV. The Question Presented Is Dispositive .........12
CONCLUSION..........................................................13

ii
TABLE OF AUTHORITIES
CASES
Brown v. Entertainment Merchants Ass’n,
131 S. Ct. 2729 (2011) .......................................... 11
Brown v. Plata,
131 S. Ct. 1910 (2011) .......................................... 10
Bullock v. FBI,
577 F. Supp.2d 75 (D.D.C. 2008) ........................... 4
Cottone v. Reno,
193 F.3d 550 (D.C. Cir. 1999) .......................passim
Covington v. McLeod,
No. 09-5336, 2010 WL 2930022 (D.C. Cir. July
18, 2010).................................................................. 4
Davis v. U.S. Dep’t of Justice,
460 F.3d 92 (D.C. Cir. 2006) . .......................... 5, 12
Davis v. U.S. Dep’t of Justice,
968 F.2d 1276 (D.C. Cir. 1992) .....................passim
Edwards v. Dep’t of Justice,
No. 04-5044, 2004 WL 2905342 (D.C. Cir. Dec.
15, 2004).................................................................. 4
Farmer v. Brennan,
511 U.S. 825 (1994) .............................................. 10
Geronimo v. Executive Office of U.S. Attys.,
No. 05-1057, 2006 WL 1992625 (D.D.C. July 14,
2006)........................................................................ 4
Inner City Press/Cmty. on the Move v. Bd. of
Governors of the Fed. Reserve Sys.,
463 F.3d 239 (2d Cir. 2006)................................ 3, 4

iii
Lair v. Dep’t of Treasury,
No. 03-827, 2005 WL 645228 (D.D.C. Mar. 21,
2005)........................................................................ 4
Lopez v. Dep’t of Justice,
No. 03-5192, 2004 WL 626726 (D.C. Cir. Mar. 29,
2004)........................................................................ 4
McCall v. U.S. Marshals Service,
36 F. Supp.2d 3 (D.D.C. 1999) ............................... 4
Nat’l Archives & Records Admin. v. Favish,
541 U.S. 157 (2004) .............................................. 11
Nation Magazine v. U.S. Customs Service,
71 F.3d 885 (D.C. Cir. 1995) .................................. 4
Niagara Mohawk Power Corp. v. U.S. Dep’t of
Energy,
169 F.3d 16 (D.C. Cir. 1999) .................................. 4
Nixon v. Warner Communications, Inc.,
435 U.S. 589 (1978) ................................................ 7
Peay v. Dep’t of Justice,
No. 04-1859, 2006 WL 1805616 (D.C. Cir. June
29, 2006).................................................................. 4
Sorrell v. IMS Health Inc.,
131 S. Ct. 2653 (2011) .......................................... 12
U.S. Dep’t of Justice v. Reporters Committee for
Freedom of Press,
489 U.S. 749 (1989) ............................................ 5, 9
United States v. Edwards,
672 F.2d 1289 (7th Cir. 1982) ................................ 7

iv
OTHER AUTHORITIES
Br. of United States, Isley v. Executive Office for
U.S. Attys.,
No. 98-5098, 1999 WL 34833571 (D.C. Cir. June
17, 1999).................................................................. 4
D.C. Colo. L. Cr. R. 47.1............................................. 8

REPLY BRIEF FOR PETITIONER
The Government would like to have it both ways.
On one hand, it would like to enjoy the advantage of
using evidence in open court in its capacity as a
prosecutor while avoiding the “disadvantage” of
having to justify a sealing order over the likely
objection of the press. On the other hand, it would
like to turn around and invoke privacy concerns
when FOIA requesters seek that same evidence to
shed potentially unflattering light on the
Government’s own omissions. This Court should
grant certiorari and make clear that public records
are indeed public.
The Government does not dispute that the Tenth
Circuit declined to apply the “public domain”
doctrine that the D.C. Circuit and the Second Circuit
have applied. See Opp. 11. The Government instead
distinguishes the “public domain” doctrine as being
inapplicable in cases involving exemption 7(C). In
fact, these courts have applied the “public domain”
doctrine across the gamut of FOIA exemptions.
More to the point, the D.C. Circuit’s leading “public
domain” case, Davis v. U.S. Dep’t of Justice, 968 F.2d
1276 (D.C. Cir. 1992), involved exemption 7(C).
Unable to distinguish Davis, the Government
attempts to dismiss it as dicta. But the Government
itself has recognized in prior filings that Davis
establishes the applicability of the “public domain”
doctrine to exemption 7(C) — and numerous courts
have agreed. Under Davis and the well-settled view
of courts interpreting it, the Government cannot
successfully invoke exemption 7(C) to refuse

2
disclosure of the same records that it has previously
used as evidence in open court. If the court below
had applied this rule of law, it would have reversed,
not affirmed. There is therefore a circuit split on an
important question of federal law.
The Government emphasizes the horrific and
grotesque details of the assault that the video
depicts here. Those details are deeply troubling, but
they are a reason to grant certiorari, not deny it.
The violence here underscores the public interests in
understanding and addressing how an attack of this
severity could happen to someone dependent on the
Government for protection. It also illustrates the
Government’s about-face.
The video implicated
stronger privacy interests when the Government
introduced it as evidence in open court.
The
Government nevertheless proceeded not only once,
but twice because the evidence was highly probative.
It remains highly probative of the Government’s
nonfeasance in protecting an inmate entrusted to its
care. The same Government should not now invoke
the privacy concerns it found unavailing at trial to
prevent the media from seeing for itself evidence
that highlights the Government’s own failures.
The “public domain” doctrine prevents the
Government from having it both ways:
The
Government cannot successfully invoke a FOIA
exemption to resist disclosure of unsealed evidence
that it used in open court. This Court should grant
certiorari and make this rule the law of the land.

3
I.

THE CIRCUITS ARE SPLIT
QUESTION PRESENTED

ON

THE

The Government seeks to distinguish the
decision below from the D.C. Circuit and Second
Circuit “public domain” cases by arguing that those
courts have not applied the doctrine in cases
involving exemption 7(C).
Opp. 11–12.
This
distinction fails for two reasons.
First, it is a distinction without a difference. The
“public domain” doctrine does not vary exemptionby-exemption
because,
as
the
Government
recognizes, it is not grounded in any particular
exemption’s text. See Opp. 12. Instead, it is
grounded in principles of waiver and forfeiture. Pet.
16; Cottone v. Reno, 193 F.3d 550, 553, 555 (D.C. Cir.
1999). The rule is simple: “[M]aterials normally
immunized from disclosure under FOIA lose their
protective cloak once disclosed and preserved in a
permanent public record.” Cottone, 193 F.3d at 554.
These courts have applied the “public domain”
doctrine in cases involving numerous FOIA
exemptions.
Pet. 17 (collecting cases involving
exemptions 1, 3, 4, 7(C), and 7(D)). And the Second
Circuit stated in a case involving exemption 4 that
cases involving “other FOIA exemptions [were]
applicable [t]here.” Inner City Press/Cmty. on the
Move v. Bd. of Governors of the Fed. Reserve Sys.,
463 F.3d 239, 245 n.5 (2d Cir. 2006).
Second, Davis applied the doctrine in
circumstances that are materially indistinguishable:
It involved audiovisual evidence and exemption 7(C).
Unable to distinguish Davis on the facts, the

4
Government argues that Davis was dicta. In its
view, Davis had “no occasion to decide” whether the
“public domain” doctrine applied because the
Government “did ‘not challenge [the] public domain
doctrine’s’ general application in the context of the
case.” Opp. 15 (quoting Davis, 968 F.2d at 1280).
This reading of Davis is both novel and wrong.
Numerous courts have read Davis as establishing
that the “public domain” doctrine applies in cases
involving exemption 7(C). E.g., Inner City Press, 463
F.3d at 244; Cottone, 193 F.3d at 554; Niagara
Mohawk Power Corp. v. U.S. Dep’t of Energy, 169
F.3d 16, 19(D.C. Cir. 1999); Nation Magazine v. U.S.
Customs Service, 71 F.3d 885, 896 (D.C. Cir. 1995);
Covington v. McLeod, No. 09-5336, 2010 WL
2930022, *1 (D.C. Cir. July 18, 2010); Peay v. Dep’t of
Justice, No. 04-1859, 2006 WL 1805616, *3 (D.C. Cir.
June 29, 2006); Edwards v. Dep’t of Justice, No. 045044, 2004 WL 2905342, *1 (D.C. Cir. Dec. 15, 2004);
Lopez v. Dep’t of Justice, No. 03-5192, 2004 WL
626726, *1 (D.C. Cir. Mar. 29, 2004); Bullock v. FBI,
577 F. Supp.2d 75, 78–79 & n.4 (D.D.C. 2008);
McCall v. U.S. Marshals Service, 36 F. Supp.2d 3, 7
(D.D.C. 1999); Geronimo v. Executive Office of U.S.
Attys., No. 05-1057, 2006 WL 1992625, *6 (D.D.C.
July 14, 2006); Lair v. Dep’t of Treasury, No. 03-827,
2005 WL 645228, *5–6 (D.D.C. Mar. 21, 2005).
Indeed, the Government itself has read Davis
this way. In its brief in Isley v. Executive Office for
U.S. Attys., No. 98-5098, 1999 WL 34833571 (D.C.
Cir. June 17, 1999), the Government cited Davis as
“settled law” that “makes clear” that the “public
domain” doctrine can “overcome a legitimate

5
Exemption 7(C) withholding” provided that the
requester carries his “initial burden of pointing to
specific information in the public domain that
appears to duplicate that being withheld.” Id. at 20–
21 (quoting Davis, 926 F.2d at 1279).
The Government was right in Isley and is wrong
now to dismiss Davis as dicta, because its current
position is contradicted by Davis’s disposition and
subsequent history. In Davis, the D.C. Circuit
concluded that, “[b]ut for the publication of the
tapes,” exemption 7(C) would apply to prohibit their
disclosure. Davis, 968 F.2d at 1279. Rather than
affirming the district court’s order denying
disclosure, the D.C. Circuit vacated and remanded to
give the requester the opportunity to carry his
burden of showing that the Government had played
the same tapes he requested at trial. Id. at 1282.
On remand, he made this showing, leading to release
of the tapes. Davis v. U.S. Dep’t of Justice, 460 F.3d
92, 96 (D.C. Cir. 2006) (“Davis IV”). 1
Furthermore, the Government did challenge the
application of the “public domain” doctrine in Davis.
The Government argued that it did not apply
because U.S. Dep’t of Justice v. Reporters Committee
for Freedom of Press, 489 U.S. 749 (1989), limited it
to cases where the requester shows that he is

1 The Government notes that it released the tapes in Davis

without a court order directing it to do so. Opp. 16. There is
nothing remarkable about the Government providing relief to a
party after it becomes clear that he is entitled to that relief
under the Government’s own legal position.

6
seeking exactly the same materials that were played
in open court, and because the requester had not
carried this burden. Davis, 968 F.2d at 1280. The
D.C. Circuit agreed that Reporters Committee
requires this heightened showing, but it disagreed
that the doctrine did not apply.
Instead, it
remanded to give the requester the opportunity to
carry the evidentiary burden that it had imposed.
Id. at 1279–80. 2
Quite simply, Davis relied on the “public
domain” doctrine to remand, not affirm, where
exemption 7(C) otherwise would have applied. If the
court below had done the same, it would have
reversed, not affirmed. There is therefore a conflict
between the circuits.
II. THE QUESTION PRESENTED GOES TO
THE HEART OF WHAT IT MEANS FOR
PUBLIC RECORDS TO BE “PUBLIC”
The Government repeatedly describes its use of
unsealed evidence in open court as a “limited”
disclosure. Opp. 9, 13, 14, 16. But that begs the
question, which is whether the Government’s
disclosure of records in open court is “limited” or
whether those records are actually accessible to the
public. When the Government introduces evidence
into the public record, is that sufficient to waive
2 The issue that “the government chose not to litigate” in

Davis was whether Reporters Committee foreclosed the “public
domain” doctrine entirely. Davis, 968 F.2d at 1280; Opp. 16.
The Government has again “chose[n] not to litigate” that issue
here.

7
otherwise applicable FOIA exemptions? Or are
those records only temporarily available to the
people who make it to court on time, such that the
Government can use evidence in open court and then
singlehandedly prevent others from viewing it once
trial is over?
The Tenth Circuit’s answer is wrong and
undermines the “venerable” common-law right of
access to court records. Cottone, 193 F.3d at 554; see
Nixon v. Warner Communications, Inc., 435 U.S.
589, 597 (1978). This right “is not some arcane relic
of ancient English law,” it “is fundamental to a
democratic state.” United States v. Edwards, 672
F.2d 1289, 1294 (7th Cir. 1982) (quotation marks
omitted). “Like the First Amendment, the right of
inspection serves to produce an informed and
enlightened public opinion. Like the public trial
guarantee of the Sixth Amendment, the right serves
to ‘safeguard against any attempt to employ our
courts as instruments of persecution, to promote the
search for truth, and to assure confidence in judicial
remedies.
And like the Fifth and Fourteenth
Amendments, the right of inspection serves to
promote equality by providing those who were and
those who were not able to gain entry to the
courtroom the same opportunity to hear the tapes.”
Id. (quotation marks and alterations omitted).
The Government argues that Petitioner should
have requested the tapes from the Sablan court, and
that this FOIA request “circumvent[s] [that court’s]
authority to regulate properly the manner and
degree of public access to any sensitive materials.”
Opp. 22–23. But Petitioner did ask the Sablan court

8
for the video. That request was fruitless because
that court no longer possesses it — the Government
does. App. 3, 24. Furthermore, we agree that the
Sablan court was the proper tribunal to control
access to these sensitive materials. But it is the
Government’s approach, not Petitioner’s, that
circumvented that court.
The “public domain” doctrine makes the trial
court the gatekeeper for access to its records. The
Government must ask the trial court to seal evidence
pursuant to applicable procedural safeguards, such
as giving the public notice and opportunity to object.
See D.C. Colo. L. Cr. R. 47.1(C), (E); see also Br. of
Allied Daily Newspapers et al. as Amici Curiae at 8–
9 (“Media Amici”). If the court decides to seal, that
decision applies globally: While sealed, records are
unavailable from the court or via FOIA. Cottone,
193 F.3d at 554 (“public domain” doctrine does not
extend to sealed records). But if the court does not
seal, that decision applies globally as well. Unsealed
materials will be generally available from the court,
as the district court’s local rules state point-blank
that unsealed evidence used at trial is “deemed part
of the public record.” D.C. Colo. L. Cr. R. 47.1(H); see
Media Amici at 8–9. They also will be generally
available under FOIA.
By contrast, the Government’s approach allows
it to bypass the district court’s oversight and
procedural safeguards — including notice to the
public and opportunity to comment. “In other words,
[this] approach enables the government to obtain a
de facto judicial seal without observing the notice

9
requirements and other procedural protections
demanded by a motion to seal.” Media Amici at 10.
The Government argues that Reporters
Committee requires this counterintuitive result.
Opp. 10–12.
But Reporters Committee did not
address these issues. Pet. 27–29. That case involved
arrest records that “reveal[ed] little or nothing about
an agency’s own conduct.” Reporters Committee, 489
U.S. at 773. This case involves court records that
shed light on “what the government [was] up to” as
warden, as prosecutor, and in its courts. App. 12–13.
That case involved a request to one entity for
“nonpublic” compilations of data that other entities
had made public elsewhere. Reporters Committee,
489 U.S. at 753, 764–65. This case involves a
request for the same records that were disclosed
from the same entity that disclosed them: the
Government.
Reporters Committee thus does not involve the
inequity or constitutional interests that drive the
“public domain” doctrine. The Government here has
used records in open court to its advantage as
prosecutor, but then prevented citizens from using
FOIA to see those same records to ask difficult
questions
about
the
Government’s
own
shortcomings. Reporters Committee did not consider,
and does not countenance, such inconsistent
behavior.

10
III. THE SHOCKING NATURE OF THE CRIME
ONLY UNDERSCORES THE CASE FOR
CERTIORARI
The Government describes the gruesome deathscene images at issue here in excruciating, blow-byblow detail. Opp. 3–5. But the Petition itself did not
shy away from the “heinous and gruesome” nature of
the images, which depict an “extraordinarily
degrading and disrespectful” assault on an inmate
who was dependent on the Government for
protection. Pet. 7. The Government never explains
why adding more gruesome details makes this case
less worthy of plenary review. 3
The severity of the attack here only strengthens
the case for certiorari. This is not a videotape of a
private assault that the Government merely
happens to possess. The Government possesses this
video because this murder happened on its watch in
a federal prison.
The Government has a
constitutional duty “to protect prisoners from
violence at the hands of other prisoners.” Farmer v.
Brennan, 511 U.S. 825, 833 (1994); see also Brown v.
Plata, 131 S. Ct. 1910, 1928–29 (2011). Pet. 5–6, 29.
It is shocking — and a matter of significant public
concern — that a crime of this magnitude and
duration could occur in what should have been one of

3 The Government merely states in a footnote that the

privacy interests here are of a “vastly different magnitude”
than in Davis. Opp. 17 n.3. But the Government does not
argue that this difference is material under the “public domain”
doctrine, which is grounded in waiver.

11
the most secure cellblocks in the federal penitentiary
system. If this crime could happen here, it could
happen anywhere. The video of the results of such
extreme government nonfeasance — akin to a 911
line ringing unanswered for hours — implicates
public interest concerns of the highest order.
“Every detail of this crime concerns BOP action
or inaction.” Br. of Columbia Legal Services et al. as
Amici Curiae at 21. “Why were three inmates
housed in a cell intended for administrative
segregation? How did the Sablans obtain weapons
and alcohol? Why did it take guards so long to
respond that the Sablans had time to mutilate Mr.
Estrella’s body?” Id. at 21–22. These matters are
particularly pressing for Petitioner’s readers who are
prisoners. They want no part of a “sensation-seeking
culture.” Opp. 14 (quoting Nat’l Archives & Records
Admin. v. Favish, 541 U.S. 157, 166 (2004)). For
prisoners, the problem of prison violence is a
tangible threat. And it is hard to conceive of a more
vivid illustration of the Government’s failure to quell
prison violence than this video.
Under our system of self-government, the
decision of how much violence is too much for
citizens to watch generally cannot be made for us by
the government; it must be made by the people
themselves. “[D]isgust is not a valid basis for
restricting expression.” Brown v. Entertainment
Merchants Ass’n, 131 S. Ct. 2729, 2738 (2011). This
principle is even more true where, as here, the
violence is real, not make-believe, and sheds light on
the Government’s own failures. “Privacy is a concept
too integral to the person and a right too essential to

12
freedom to allow its manipulation to support just
those ideas the government prefers.” Sorrell v. IMS
Health Inc., 131 S. Ct. 2653, 2672 (2011). Likewise,
privacy is too important to allow the Government to
manipulate it to support disclosure when it helps the
Government secure convictions, but not when the
same materials would subject the Government to
potentially embarrassing public scrutiny.
IV. THE
QUESTION
DISPOSITIVE

PRESENTED

IS

The outcome of this case turns solely on the
question presented. Pet. 34–35. The Government
disagrees, arguing that the records here would
remain protected because they “were never ‘freely
available’ nor are they permanently preserved in the
public domain.” Opp. 21. In its view, the “public
domain” doctrine applies only when “there would be
no reason to invoke the FOIA” because the same
records are currently available elsewhere. Id. at 22.
But the D.C. Circuit and the Second Circuit have
made the “public domain” doctrine important, not
pointless. For example, Davis did not even ask
whether the audiotapes were actually available
elsewhere. Presumably, they were not. Otherwise
the parties would not have spent 20 years in FOIA
litigation. See Davis IV, 460 F.3d at 95. Instead, the
D.C. Circuit demanded that the request be for the
same materials the Government played at trial.
“[T]apes enter the public domain once played and
received into evidence,” and they remain part of the
public domain “until destroyed or placed under seal.”
Cottone, 193 F.3d at 554.

13
The Government played the entire tape here at
two trials, it still exists and is unsealed.
Accordingly, it remains in the “public domain.” The
only question, therefore, is whether that doctrine
applies.
CONCLUSION
For the foregoing reasons, this Court should
grant the petition for certiorari.
RESPECTFULLY SUBMITTED
NEIL S. SIEGEL
DUKE LAW SCHOOL
Box 90360
210 Science Dr.
Durham, NC 27708
(919) 613-7157

PAUL D. CLEMENT
Counsel of Record
BANCROFT PLLC
1919 M St. NW, Suite 470
Washington, DC 20036
pclement@bancroftpllc.com
(202) 234-0090

LANCE WEBER
HUMAN RIGHTS
DEFENSE CENTER
1037 Western Ave.
P.O. Box 2420
Brattleboro, VT 05303
(802) 579-1309

ZACHARY D. TRIPP
KING & SPALDING LLP
1700 Pennsylvania Ave. NW
Washington, DC 20006
(202) 737-0500

September 27, 2011

Counsel for Petitioner



 

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