Cable News Network, Inc. v. FBI, No. 19-5278 (D.C. Cir. 2021)
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CNN filed suit against the FBI under the Freedom of Information Act (FOIA) for access to memos that former FBI Director James Comey wrote. The FBI filed a redacted declaration by Deputy Assistant Director David Archey explaining why it redacted the Comey Memos. After the FBI disclosed most of the Comey Memos, the district court ordered the FBI to disclose the unredacted Archey Declaration under the common-law right to access judicial records.
The DC Circuit vacated, agreeing with the FBI that the district court misapplied the six-factor test first articulated in United States v. Hubbard, 650 F.2d 293 (D.C. Cir. 1980). The court explained that the Archey Declaration is a judicial record because the purpose and effect of it was to influence a judicial decision. Because the Archey Declaration is a judicial record, the court applied a strong presumption in favor of disclosing it. The court disagreed at how the district court applied the first and second Hubbard factors: (1) the need for public access to the information redacted from the Archey Declaration, and (2) the extent of previous public access to that information. The court explained that a district court weighing the first factor should consider the public's need to access the information that remains sealed, not the public's need for other information sought in the overall lawsuit. Therefore, the proper inquiry is whether the public needs to access the remaining information redacted from the Archey Declaration, not whether the public needs to access the Comey Memos as a whole or even the Archey Declaration as a whole. Likewise, a district court weighing the second factor should consider the public's previous access to the sealed information, not its previous access to the information available in the overall lawsuit. The court also parted ways with the district court as to the third, fourth, and fifth Hubbard factors. Finally, given especially the national security context of the sealed information, the sixth factor does not outweigh other factors with strong claims to the label of "most important" in this case. Accordingly, the court remanded for the district court to reapply the Hubbard factors.
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