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WDVA: Exhibits filed publicly won’t be sealed

A detective seeking to clear his name in connection with several criminal cases presented no countervailing interest to the public right of access to exhibits he had attached to an earlier public filing. The exhibits contained his personal employment records, including information he claimed was prejudicial and inaccurate.


In April 2018, the government moved to disclose Giglio material in 55 related cases. Craig Frye, a Vinton police detective formerly employed as a federal officer, moved to intervene and block disclosure. The court denied Frye’s motions.

At issue now is Frye’s Reply to his motion to intervene. Frye filed the Reply along with Exhibits, each of which contains either Giglio material or material that Frye claims is prejudicial. The Reply cited extensively from the Exhibits.

In filing the Reply, Frye did not follow Local Rule 9, which requires parties seeking a sealing order to file an unsealed written motion explaining the documents to be sealed, the basis for sealing, and the duration. The moving party must also tender the document to the court in camera. Here, Frye filed the Reply and Exhibits directly on the docket, which meant that they remained unsealed on the docket where the public could view them. He contemporaneously filed a Motion to Seal the Reply and Exhibits, which is now before the court.

Media intervenor

This court’s Local Rule 9 allows BH Media to oppose Frye’s motions to seal, irrespective of its status as a party or nonparty in these cases. More broadly, media outlets unquestionably have standing to challenge access to court documents. Accordingly, BH Media has standing to oppose Frye’s motions, and its motion to intervene will be granted.

Judicial document or record

The Reply and Exhibits constitute part of the judicial record. The Reply is a document filed with the objective of obtaining judicial action; namely, in support of Frye’s motion to intervene in the 55 cases.

This conclusion is supported by United States v. Wecht, 484 F.3d 194 (3d Cir. 2007), which held that Brady and Giglio materials were judicial documents or records, triggering a common-law right of access to those materials. First, the materials were filed with a motion for in camera review. Second, the materials had to be disclosed to the defense as possible impeachment evidence. Third, the government’s process for investigating and prosecuting citizens is an important matter of public concern. Fourth, the records concerned the conduct of an FBI official who played a prominent role in a highly publicized investigation of a well-known defendant. Finally, the records were relevant to the motion before the court.

Wecht’s reasoning is persuasive, and this court holds the Reply and Exhibits to be judicial documents and records.

Right of access

Because the Reply and Exhibits are judicial records, a common-law right of access applies. This right is especially strong in criminal cases, again because of the importance of how the government investigates and prosecutes its citizens. Indeed, the fact that certain records in the Exhibits constitute Giglio material places them squarely in the universe of the common-law right of access. And the underlying allegations concern the conduct of a law-enforcement officer involved in numerous federal investigations.

Moreover, the Reply and Exhibits bear directly on Frye’s motion to intervene. Frye, not the government, filed the Reply and Exhibits on the docket publicly, not under seal. And it is Frye who quotes and cites the Exhibits extensively in his 28-page Reply. The public has a common-law right of access to judicial documents and records attendant to the adjudication of his motion to intervene, including the Reply and Exhibits.

No countervailing interests

Frye does not attempt to identify any countervailing interest sufficient to overcome the public’s right of access to the Reply itself. By his own admission, the countervailing interests apply only to the Exhibits. Accordingly, Frye has not demonstrated a countervailing interest with respect to the Reply, and it will be ordered unsealed.

With respect to the Exhibits, Frye ignores that the personnel files in these cases belonged to individuals not involved in the underlying disputes. Courts are to be more willing to seal personnel files when the contents are not directly at issue in the case. Here, the opposite is true: Fry injected the Exhibits into the dispute, which implicate the public’s right to view them attendant to his motion to intervene.

Finally and most importantly, the facts here relate to potential impeachment relevant to a criminal trial. Courts’ usual reticence to unseal personnel files does not apply when those files are the very documents at issue in a Giglio disclosure. Moreover, the Exhibits are directly relevant to the adjudication of Frye’s motion to intervene. Thus, Frye has failed to demonstrate that the fact that the Exhibits include his personnel files is a countervailing interest that heavily outweighs the public’s right of access.

Frye further contends that the Exhibits should be sealed because they include extremely sensitive, prejudicial, and grossly inaccurate allegations about his professional career. But whether the Exhibits would satisfy Rule of Evidence 403 is beyond the purview of Frye’s motions to seal. Instead, the issue here is whether Frye’s claim is a countervailing interest. Following Wecht, and given that the Exhibits are the subject of the government’s Giglio disclosure, this court cannot conclude that Frye’s concerns over the questionable probative value of the Exhibits heavily outweighs the public’s right of access. The probative value of the Exhibits is not relevant to whether they should remain sealed.

The public has the right to access the Exhibits that Frye tendered in support of his motion to intervene.

Motions to seal denied.

In re Voluntary Disclosures in 55 Closed Cases, Case No. 4:12cr23, July 23, 2018. WDVA at Roanoke (Urbanski). VLW No. 018-3-296, 15 pp

VLW 018-3-296