A top DOJ official recently stated that “greater transparency benefits everyone.”
Hard to disagree with that.
Yet given the opportunity to be transparent in the HSBC prosecution by releasing the corporate monitor reports (a requirement of the DPA) the DOJ (as well as HSBC) strongly objected.
Enter U.S. District Court Judge John Gleeson (E.D.N.Y.) who in this recent opinion ordered the monitor report to be released.
For championing transparency and not acquiescing in secret criminal law enforcement, Judge Gleeson earns the FCPA Professor apple award.
In pertinent part, Judge Gleeson stated (internal citations omitted):
“HSBC and DOJ do not want the public to have access to the Report. I find that the Report is a judicial record, and that the public has a First Amendment right to see the Report.
The inquiry in this case—whether to allow the public to see the Monitor’s Report—explores the bounds of a court’s duty to “ensure that ours is indeed a government of the people, by the people, and for the people.” One of the ways this seemingly abstract principle of governance directly affects the job responsibilities of a federal judge is the duty it creates to uphold the public’s right of access to judicial documents. Both the common law and the First Amendment give the public this right.
Before I can analyze whether the public’s right of access under the common law or the First Amendment compel me to unseal the Monitor’s Report, I must determine whether the Report is a judicial document. I may consider the Monitor’s Report a “judicial document” if it is “relevant to the performance of the judicial function and useful in the judicial process.” I conclude that it is.
There is an open criminal case before me. As the government puts it, my authority here “is to ensure that the DPA remains within the bounds of lawfulness and respects the integrity of this Court.” I cannot perform that task without receiving at least some updates from the parties about HSBC’s compliance with the DPA.
I care a great deal about the results of the Monitor’s investigation; my review of those results is necessary to do my job properly.
The government argues that I am “charged neither with enforcing or granting relief from the Monitor’s efforts nor with playing any role in the Monitor’s work,” but that argument misses the point. My job is to oversee the unfolding of the criminal case that the government chose to file in my court. The parties, in the DPA, made the Monitor’s work a component of the case, and thus made the instant Report critical to the execution of my duties. If, for example, the Monitor’s Report disclosed that HSBC were systematically and extensively laundering money for drug traffickers, it would demean this institution for me to sit by quietly while the government took no action. Indeed, my oversight of the DPA and the open criminal case goes to the heart of the public’s right of access: federal courts must “have a measure of accountability,” and the public must have “confidence in the administration of justice.” Most tellingly, even a “[d]istrict [c]ourt’s inaction is subject to public accountability.” These are important interests that the government itself chose to implicate by resolving its investigation of HSBC in a manner that involved the filing of a pending criminal case.
The Monitor’s Report here is thus directly relevant to my judicial function, and as a result falls squarely within the definition of a judicial document. Having so concluded, I would ordinarily analyze the public’s common law right of access. However, because I find “that the [Monitor’s Report] [is] subject to a First Amendment right of access, which is stronger and can only be overcome under more stringent circumstances than the common law presumption,” I turn directly to the protections given to the public by the First Amendment.
A First Amendment right attaches to judicial documents for which “experience and logic” support public access.
The government argues that its decision “whether a defendant is abiding by the terms of a DPA” is akin to a charging decision, and that documents supporting that decision are typically non-public. But this argument skates over the fact that the government has already brought charges against HSBC. A DPA is not analogous to documents related to building a case; it provides for the undoing of an already-filed case. The government did not begin to employ DPAs with companies until the early 1990s, so there is scant historical evidence of public access to documents in the precise posture of the Monitor’s Report at issue here.
When all goes well for the defendant, a DPA is, at its core, a substitute for a plea agreement or a trial—to both of which the public has historically had a First Amendment right of access. And the Monitor’s Report is integral to the fulfilment of my continuing obligation to monitor the execution and implementation of the DPA. I conclude that the public’s right of access extends to such documents. Accordingly, I find that “experience” supports unsealing the Monitor’s Report.
I also find that “logic bears out this experience, since ‘public access plays a significant positive role in the functioning of the particular process in question.’” This case implicates matters of great public concern, and is “therefore one which the public has an interest in overseeing.” DOJ and the Court are public institutions.
[B]ecause of the historical practice of allowing public access to documents filed in connection with important criminal proceedings, and because the interests of transparency, accountability, and credibility remind me “of the logic of democratic monitoring of judicial processes,” I find that the First Amendment right of access attaches to the Monitor’s Report.”
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