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9th Circuit Grants Public Access to Search Warrant Records

The U.S. Court of Appeals for the Ninth Circuit has overturned a District of Montana decision and granted unlimited access to search warrant records of a City of Garryowen business owner, whom the federal government investigated but declined to prosecute. According to the Court, "We hold that the public has a qualified common law right of access to warrant materials after an investigation has been terminated."

Christopher Kortlander, owner and operator of the Custer Battlefield Museum, had been investigated for allegedly "unlawfully attempting to sell migratory bird parts and for fraudulently misrepresenting the provenance of historical artifacts for sale." He sought "a personal copy of the entire file, while leaving the file sealed to the public."

The United States Attorney's Office initially opposed this motion, citing the need to protect witness, informant, and grand jury secrecy. The 9th Circuit, citing the case of Nixon v. Warner Communications Inc., 435 U.S. 589, (1978), found that the law "recognizes two qualified rights of access to judicial proceedings and records, a common law right 'to inspect and copy public records and documents, including judicial records and documents, and a First Amendment right of access to criminal proceedings.' "

Additionally, the court ruled that "when the common law right of access applies to the type of document at issue in a particular case, 'a strong presumption in favor of access' is the starting point, " citing Kamakana v. City and County of Honolulu, 447 F3d. 1172, (9th Cir. 2006). The court declined, however, to decide the First Amendment arguments raised, and vacated the decision and remanded it to the Montana District Court. See: United States v. Business of Custer Battlefield Museum, 658 F.3d 1188 (9th Cir., 2011).

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Related legal case

United States v. Business of Custer Battlefield Museum