Judge Denies AP Access to Names of Players in Search Warrant Affidavit

Does the public have a "right" to the names of players who were blacked out by federal prosecutors in a search warrant affidavit? We debated this issue at length on the blog last month here. Yesterday, U.S. Magistrate Edward C. Voss rejected a request by The Associated Press to reveal names blacked out in a sworn statement by IRS special agent Jeff Novitzky, which was used to support a warrant to search the home of former major league pitcher Jason Grimsley. The AP argued that the public has a right to access the entire affidavit. However, Judge Voss ruled that the possible damage to the government's probe outweighed any First Amendment and common law rights to release the names. The judge also concluded that prosecutors have not in fact revealed the names to others, including George Mitchell who is heading MLB's steroid investigation. In his 7-page order, Judge Voss wrote:

"Cooperation could be affected, investigation of named individuals could be compromised, leads developed from undisclosed information could be cut off, and evidence could be destroyed. When the investigation concludes, the weight of the government's argument against disclosure will change dramatically. Speculation concerning who is or is not named in the Novitzky affidavit is unfair."

Needless to say, I agree with the judge's ruling. As I said in the comments to my original post, "If I were the judge, I'd tell the AP to go interview people and do your own investigation." I have the same concerns as Judge Voss. The very nature of any governmental "investigation" means that there is speculation. A simple balancing of the harms here weighs heavily in favor of non-disclosure. The harmful impact that disclosure would have upon the individual players and the government is great and immediate, whereas the harm to the AP in waiting to disclose the names until the completion of the investigation is de minimis. Ironically, there is an assumption here that the AP speaks on behalf of the public and that the public interest is somehow better served through disclosure. However, the public does not benefit from compromising government investigations, including impeding the gathering of evidence as well as creating disincentives for people to cooperate. If there is enough evidence to charge these people with a crime, we will know about it....and we'll also know if there wasn't.

Posted in: