Federal judge’s ruling could open up sealed John Doe records

By M.D. Kittle | Wisconsin Reporter

MADISON, Wis. – The federal judge who shut down the politically charged John Doe investigation into conservatives has granted a national media coalition’s motion to intervene in a civil rights case filed by conservative activists – a move that could open up previously sealed documents in the secret probe.

“To date, the Court has granted the various motions to seal in this case out of deference to the secrecy order in the state-court John Doe proceedings, wrote Judge Rudolph Randa, U.S. District Court Eastern District of Wisconsin in Milwaukee, in a filing posted Wednesday afternoon. He noted the appeals case involving the John Doe probe before the state Supreme Court.

“The Coalition is correct, however, that the Court must make more specific findings in order to justify keeping the filings in this case under seal,” the judge stated in granting the motion, filed by the Reporters Committee for Freedom of the Press, American Society of News Editors, Wisconsin Broadcasters Association, Wisconsin Freedom of Information Council, and Wisconsin Newspaper Association.

That doesn’t mean Randa will release the sealed documents, but he will at least explain why he hasn’t to date.

In its motion, filed last week, the coalition argues that Randa failed to review the necessity of sealing the documents before he issued the order, something that runs counter to judicial protocol.

“Before entering its sealing orders, the Court was required to make specific, reviewable findings in support of sealing. It did not do so. Indeed, the sole apparent reason for the sealing orders is the existence of a secrecy order entered in the John Doe proceeding—an order which is itself secret and under seal,” the motion states.

“That the John Doe judge deemed the entirety of the proceeding before him ‘secret,’ however, does not relieve this Court of its independent obligation to determine whether sealing the record in this separate lawsuit is warranted.”

In his order issued Wednesday, the judge notified any party that objects to unsealing any part of the record in the civil rights case should respond to the Coalition’s motion to unseal by May 14.

“If any response is filed, the Coalition may file a reply brief in support of its motion on or before May 21, 2014,” Randa wrote.

It would seem the prosecutors of the John Doe investigation will be the leading party in opposing the public release of the records. The prosecutors-turned defendants have repeatedly filed motions to seal documents based on the John Doe’s strict secrecy order.

Randa’s ruling at first concerned the coalition.

The judge ordered that prosecutors must “cease all activities related to the investigation, return all property seized in the investigation from any individual or organization, and permanently destroy all copies of information and other materials obtained through the investigation.”

At first it was assumed that all documents in the probe, including the multitude of records redacted in the civil rights lawsuit, would be subject to Randa’s order.

Beth Bennett, executive director of the Wisconsin Newspaper Association, said Randa’s ruling would not involve the documents filed in the lawsuit.

“When the judge said all records to be destroyed, he meant those in possession of the (John Doe) attorneys, not the court records. Those are two different things,” she said.

Some conservatives worried that the court-ordered release would open up to the public anonymous donor lists seized in the investigation’s raids, but that information likely would be protected, according to the coalition.

Still, the coalition’s Katie Townsend said no one outside of the attorneys knows what records have been sealed.

“Our goal is to get access to the information filed under seal with the district court,” Townsend said. “There are massive amounts of exhibits filed, all sealed, including the John Doe secrecy order.”

“This is information the public and press have a First Amendment right to,” she added.

The concern may be moot.

On Wednesday, the 7th Circuit U.S. Court of Appeals stayed the judge’s preliminary injunction. In so doing, the court also stopped Randa’s order demanding the prosecutors return and destroy John Doe documents, at least until the three-member panel settles the prosecutors appeal.

Contact M.D. Kittle at mkittle@watchdog.org