Opinion for the Court filed by Chief Judge WALD.
WALD, Chief Judge:
Appellant Robert Tyrone Morgan filed a Freedom of Information Act, 5 U.S.C. § 552, ("FOIA") request with the Office of the United States Attorney in Baltimore requesting handwritten "rough notes" containing a Federal Bureau of Investigation ("FBI") agent's impressions of an interview with a prosecution witness who testified in Morgan's bank robbery trial. The Department of Justice ("DOJ") denied Morgan's FOIA request because the notes had been placed under seal by the United States District Court for the District of Maryland, and the sealing order had been affirmed by the Fourth Circuit. Morgan subsequently filed a FOIA action in the United States District Court for the District of Columbia, alleging that the DOJ improperly withheld the notes. The district court dismissed Morgan's complaint and granted the DOJ's motion for summary judgment, holding that Morgan was not entitled to the notes under the FOIA because they were being lawfully withheld pursuant to a court seal. Morgan v. U.S. Department of Justice, Civil Action No. 89-0527 (D.D.C. Oct. 13, 1989).
We now reverse and remand for the district court to determine whether the seal in fact prohibits the DOJ from disclosing the notes to the public.
The facts in this case are simple and uncontested. After he was convicted of bank robbery in the United States District Court for the District of Maryland, Morgan filed a motion for a new trial, contending that the prosecution had suppressed exculpatory evidence in the form of an FBI agent's handwritten notes from an interview
After the Fourth Circuit affirmed the district court's denial of Morgan's new trial and discovery motions, Morgan moved the Fourth Circuit to unseal the notes. The Fourth Circuit denied that motion on August 17, 1988. The following day, Morgan filed a FOIA request for the rough notes.
As the district court recognized, the reasoning in GTE Sylvania provides the framework for reviewing the DOJ's decision to withhold the FBI agent's notes. In GTE Sylvania, consumer groups sought to obtain from the Consumer Product Safety Commission ("CPSC") accident reports from various manufacturers of television sets. Contending that the release of the reports was prohibited by the Consumer Product Safety Act, 15 U.S.C. § 2055, the Trade Secrets Act, 18 U.S.C. § 1905, and exemptions to the FOIA, the manufacturers filed suit in the District Court of Delaware to enjoin the CPSC from disclosing the reports. GTE Sylvania, 445 U.S. at 378, 100 S.Ct. at 1197. The Delaware court subsequently entered a preliminary (and, eventually, a permanent) injunction prohibiting the release of the reports. The consumer groups then filed a complaint in the District Court for the District of Columbia, seeking the release of the reports under the FOIA. Id. The district court dismissed the FOIA suit, finding that no case or controversy existed because the CPSC had assured the court that it would disclose the reports as soon as the injunction prohibiting disclosure was removed. Id. at 379, 100 S.Ct. at 1197. The D.C. Circuit reversed and held that the injunction issued by the Delaware court did not deprive the consumer groups of their right to obtain the reports under the FOIA. Id. at 382, 100 S.Ct. at 1199.
The Supreme Court subsequently granted certiorari to determine whether the consumer groups could obtain the accident reports through FOIA litigation in one district court, even though another district court had enjoined the CPSC from disclosing them. Id. at 384, 100 S.Ct. at 1200. The Court began its analysis by explaining that the FOIA gives federal courts jurisdiction to compel an agency to produce records only if the agency has "(1) improperly (2) withheld (3) agency records." Id.; see also 5 U.S.C. § 552(a)(4)(B). Because a district court had already enjoined the CPSC from disclosing the accident reports, the Court in GTE Sylvania held that the CPSC did not "improperly" withhold the reports within the meaning of the FOIA. Id. at 387, 100 S.Ct. at 1202.
The Court based its holding in GTE Sylvania on two factors: (1) an agency does not abuse its discretion under the FOIA by honoring a court order enjoining the agency from releasing records because in such a
First, the district court did not determine whether the seal in this case prohibits the DOJ from releasing the FBI agent's notes in the same way that the injunction in GTE Sylvania prohibited the CPSC from releasing the accident reports. Although the FOIA does not "require an agency to commit contempt of court in order to release documents," id. at 387, 100 S.Ct. at 1202, the district court did not find that the DOJ would in fact be vulnerable to a possible contempt citation if it publicly released the notes. As discussed above, Morgan initially tried to obtain the notes through discovery in his criminal trial. Although the Maryland court denied Morgan's discovery request, it required the DOJ to put the notes into the record so that the Fourth Circuit could review its decision to deny Morgan's discovery motion. Given this context, it is quite possible that the Maryland court imposed, and the Fourth Circuit denied Morgan's motion to remove, the seal in order to protect the notes from disclosure as part of the public record of Morgan's criminal case. If this was the reason for the seal, its effect may be only to prohibit the public from viewing the notes in the public court record; it may not have been intended to affect any future decision by the DOJ to release the notes voluntarily or pursuant to a FOIA request. Cf. In re Agent Orange Product Liability Litigation, 104 F.R.D. 559, 566, 575-77 (E.D.N.Y.1985) (although protective order and seal of confidentiality covering documents produced by Veterans Administration and Environmental Protection Agency in course of "agent orange" litigation prohibited the public from viewing the documents in the court record, the government conceded that it did not prevent the agencies from disclosing the documents under the FOIA), aff'd, 821 F.2d 139 (2d Cir.1987).
As in any FOIA case, the DOJ on remand will have the burden of proving that it did not "improperly withhold" the notes. See 5 U.S.C. § 552(a)(4)(B); United States Department of Justice v. Tax Analysts, 492 U.S. 136, 109 S.Ct. 2841, 2846 n. 3, 106 L.Ed.2d 112 (1989). In other words, the DOJ will have the burden of demonstrating that the court issued the seal with the intent to prohibit the DOJ from disclosing the notes as long as the seal remains in effect. The DOJ may do this by referring to, inter alia: (1) the sealing order itself; (2) extrinsic evidence, such as transcripts and papers filed with the sealing court, casting light on the factors that motivated the court to impose the seal;
We recognize, however, that it may be impossible to determine the scope and effect of the seal from the face of the seal and the circumstances attending its imposition. Thus in order to meet its burden of proof, the DOJ may need to seek a clarification from the court that issued the seal. So long as the DOJ is diligently pursuing such an authoritative interpretation of the seal, the district court would reasonably exercise its discretion by staying its hand, on the government's motion, to allow a reasonable period of time for the DOJ to seek a clarification from the court that issued the seal. If the DOJ obtains a clarifying order stating that the seal prohibits disclosure, the DOJ is obviously entitled to summary judgment. If, on the other hand, the clarifying order states that the seal does not prohibit disclosure, the DOJ may not rely on the seal to justify its decision to withhold the notes. At that point, unless a specific FOIA exemption applies, the DOJ
In sum, we hold that the mere existence of a court seal is, without more, insufficient to justify nondisclosure under the FOIA. Instead, only those sealing orders intended to operate as the functional equivalent of an injunction prohibiting disclosure can justify an agency's decision to withhold records that do not fall within one of the specific FOIA exemptions. Because the district court relied on the existence of the court seal, without inquiring into its intended effect, we reverse and remand for proceedings consistent with this opinion.
It is so ordered.
Fed.R.Civ.P. 26(c) similarly gives the court the discretion both to place documents in the court record under seal and to issue detailed protective orders prohibiting disclosure of documents obtained through discovery. See generally Fed.R.Civ.P. 26(c); 8 Wright & Miller, FEDERAL PRACTICE AND PROCEDURE § 2042 (1970) (although "[o]rdinarily a deposition is a public document freely open to inspection after it is filed with the clerk," the court may deny public access by placing the deposition under seal; and "[i]f a court orders a deposition sealed it normally prohibits the parties and attorneys from making any disclosure of the contents of the deposition to any third party."); Rushford v. New Yorker Magazine, Inc., 846 F.2d 249 (4th Cir.1988) (finding that the factors justifying a protective order prohibiting the parties from disclosing information obtained during discovery do not necessarily justify the continued existence of a seal prohibiting public access to documents in the court record). In both civil and criminal cases, therefore, a court may issue a protective order that specifically prohibits future disclosure of discovery information. Such a protective order would, of course, meet the GTE Sylvania test and would justify the agency's decision to deny a FOIA request for the information.