EDNY COURTHOUSE, July 8 – On the
Eastern District of New York's public courtroom calendar
for July 7 was an entry with no name: "* SEALED *," 2:00
p.m., Courtroom 6H North, before Judge William F. Kuntz,
II. On PACER, the case — 18-cr-277 — returns only "Sealed
v. Sealed. This case is under seal."
No caption, no parties, no docket entries.
A criminal case, apparently opened in 2018, invisible for
eight years. Inner City Press, which covers the federal
courts, wrote to Judge Kuntz that same day: docket the
letter, unseal the docket sheet, and test the continued
sealing against the Second Circuit's standards — citing
Hartford Courant Co. v. Pellegrino, 380 F.3d 83 (2d Cir.
2004), in which the Second Circuit held that the press and
public have a qualified First Amendment right of access to
docket sheets themselves, without which "the public cannot
know what it is being denied." Judge Kuntz did not ignore
the letter. He did not deny it in a sealed order.
He did something better — and, in Inner
City Press's experience across a dozen districts, close to
unique: he opened a new, public miscellaneous case,
captioned In
re Inner City Press [26-cv-4094], docketed Inner
City Press's letter as Document 1, and put Assistant
United States Attorneys on the case to respond. Consider
the elegance of it. The underlying case is sealed; even an
order about it, entered on its docket, would be invisible.
Rather than let the access request
disappear into the same black hole it challenges, Judge
Kuntz created a public vehicle in which the question of
secrecy will itself be litigated publicly, with the
government required to appear and be counted. That is
Pellegrino's principle made procedure: whatever ultimately
remains sealed, the public gets to watch the deciding.
Judge Kuntz, appointed in 2011, on senior status since
2022, presumably could have done what some of his
colleagues around the country have done with Inner City
Press's requests — nothing, or worse. Instead the docket
now shows a case named for the press asking the question.
Inner City Press will report on the government's response
and the Court's ruling.
The contrast is instructive. In the
District of Columbia, Judge Dabney Friedrich has had Inner
City Press's miscellaneous case on sealed filings in U.S.
v. Al-Marimi, 26-mc-89, before her since June 4 — with the
government's brief in and nothing since.