Court Denies Reporter Access to AIG Consent Decree Report

By Robyn Hagan Cain on February 04, 2013 | Last updated on March 21, 2019

Not every court-ordered record or report is available for public consumption, the D.C. Circuit Court of Appeals ruled last week.

In 2004, after the Securities and Exchange Commission (SEC) charged American International Group, Inc. (AIG) with securities violations, the parties entered into a consent decree that enjoined future violation. The decree also required AIG to retain an independent consultant to review transaction policies and procedures and to examine a number of AIG's completed transactions.

Under the consent decree, the consultant had to prepare reports documenting all findings and conclusions (IC reports). The consent decree was silent on the question of disclosure, but the parties subsequently filed a joint motion to "clarify" that the IC reports were to be confidential. The district court agreed, ordering that the reports "shall be disseminated only to those persons and entities and their agents, specified in this Consent," or as permitted by the court "for good cause shown."

Sue Reisinger, a reporter for Corporate Counsel and American Lawyer magazines requested access to the IC reports in 2011, asserting both common law and First Amendment rights of access. The district court concluded -- over SEC and AIG opposition -- that Reisinger had a common law right of access and ordered public disclosure of redacted copies of the reports.

The district court had only found good cause twice before siding with Reisinger. The appellate court, however, reversed the ruling in favor of Reisinger.

The public has a fundamental interest in keeping a watchful eye on public agencies, and courts have accordingly recognized a common law right to inspect and copy public records -- that is, those "government documents created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance." Including judicial records.

But not all documents filed with courts are judicial records. Here, the D.C. Circuit Court of Appeals concluded that the IC reports were neither judicial records nor public records, so Reisinger didn't have a right to access the reports.

The appellate court reasoned that the difference was rooted in how the report was used. In this case, the district court made no decisions about the IC reports or otherwise relied on them. A judicial decision is a function of the underlying record; if a document was never part of that record, it cannot have played any role in the adjudicatory process. And while filing a document with the court is not sufficient to render the document a judicial record, "it is very much a prerequisite."

The IC reports' contents did not record, explain, or justify the district court's decision in any way, so they did not trigger traditional rights of access. Because no common law or First Amendment right of access attached to the reports, the D.C. Circuit reversed the disclosure order.

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