On February 1, the Court of Appeals for the D.C. Circuit reversed a district court decision and ruled that a journalist was not entitled to obtain confidential monitor reports of American International Group, Inc. (“AIG”) created pursuant to a consent decree. AIG was represented by William H. Jeffress, Bridget Moore and Sterling Marchand of Baker Botts.
In 2004, AIG entered into a consent decree with the Securities and Exchange Commission that, in part, required AIG to retain an independent consultant to review past financial transactions and AIG policies. The consent required the independent consultant to prepare reports documenting his findings and conclusions. A subsequent motion by both parties clarified that the reports were to remain confidential. In 2011, years after the independent consultant completed his review under the consent, Ms. Sue Reisinger, a journalist, sought access to the reports.
Ms. Reisinger argued in the D.C. District Court that the reports should be publicly disclosed under a common law and First Amendment right of access to “judicial records.” AIG and the SEC opposed the release of the reports. However, the D.C. District Court, agreeing with Ms. Reisinger in part, ruled that the reports were “judicial records” under the common law right of access and ordered their release. AIG appealed to the D.C. Circuit.
On appeal, AIG argued that the proper test of whether a document is a “judicial record” is its role in the adjudicatory process. Here, where the actual reports were never filed with, or considered by the district court, they could not and did not play any such role. The D.C. Circuit agreed, reversing the district court’s ruling that the reports must be publicly released. “A judicial decision is a function of the underlying record . . . and if a document was never part of that record, it cannot have played any role in the adjudicatory process . . . .” The D.C. Circuit distinguished the Second Circuit case United States v. Amodeo, 44 F.3d 141 (1995), relied on by Ms. Reisinger and the district court. Here, the independent consultant had no relationship with the court: he was not under the court’s supervision, he possessed no judicial authority, and he was not required to file his reports with the court. The D.C. Circuit found the district court did not rely on the reports in any adjudication where the reports did not exist when the court approved the consent and they had never been filed with the court.