In United States v. Sealed Search Warrants (Warrants), the Fifth Circuit issued a ruling within an existing circuit split holding that district courts must conduct a case-by-case analysis to determine whether the common law right of access extends to a motion to unseal pre-indictment warrant materials. While the court’s holding was correct, the scant guidance it provided leaves questions for how this rule should be implemented. The right of access evolved from English law, which provided the right to inspect and copy government records if a citizen had an individual interest in the information and the citizen’s interest in disclosure outweighed the government’s interest in nondisclosure. In the United States, the right has developed into two distinct doctrines. The first, which is not at issue in Warrants, is the First Amendment right to access the proceedings and records of certain criminal and civil cases. The second is a common law right, which according to state and federal courts, provides the right to inspect public records from all branches of government. However, the application and limits of this right have been difficult to delineate.
Nathaniel Hopkins, Note, “Show Me the Affidavit”— Ambiguity Persists in the Application of the Common Law Right of Access to Pre-Indictment Records, 72 SMU L. Rev. 319 (2019)