ProPublica files amended complaint in public access lawsuit

ProPublica just filed an amended complaint in its lawsuit against DoD, the U.S. Navy, and military judge about press access in the United States v. Mays court-martial.

The amended complaint goes beyond the Mays case. It describes how ProPublica, a news organization, has been blocked from finding out basic information about Article 32 preliminary hearings and court-martial proceedings in other cases. It seeks mandamus against Defense Secretary Lloyd Austin for failing to implement rules for press access as required by UCMJ article 140a.    

The Navy and other services have seemingly ignored the press access command of Article 140a by invoking other laws such as the Freedom of Information Act and Privacy Act to justify secrecy and closed proceedings. ProPublica's amended complaint first challenges the FOIA rationale: 

66. According to a conference report, Art. 140a aimed “to provide appropriate public access to military justice information at all stages of court-martial proceedings. At a minimum, the system developed for implementation should permit timely and appropriate access to filings, objections, instructions, and judicial rulings at the trial and appellate level.” 162 Cong. Rec. H6376-03, H6884 (daily ed. Nov. 30, 2016). 

67. According to the Military Justice Review Group, obtaining access to court-martial records through FOIA is “time-consuming” and insufficient.14 This group proposed the new article to “enhance efficiency and oversight” as well as “increase transparency in the system and foster public access to releasable information.” Id. at 139. The new article aimed to provide “public access to all unsealed court-martial documents” as well as dockets “in a manner similar to that available in the federal civilian courts.” Id. at 28, 36. 

68. Congress generally intends “that, to the extent ‘practicable,’ trial by courtmartial should resemble a criminal trial in a federal district court.” United States v. Valigura, 54 M.J. 187, 191 (C.A.A.F. 2000). 

 ProPublica then challenges the Pentagon's Privacy Act rationale for secrecy:

80. The Privacy Act does not require automatic sealing of court records and does not supersede Art. 140a, the First Amendment, or common law 80. The Privacy Act restricts government agencies from releasing certain personally identifiable information without prior written consent, with numerous exceptions, including for disclosures required by FOIA. See 5 U.S.C. § 552a. The Act was “not designed to interfere with access to information by the courts.” 120 Cong. Rec. 36,967 (1974), reprinted in Source Book at 958–59, https://www.justice.gov/opcl/PAOverview_SourceBook/download. 

81. The Act only prohibits disclosure of a “record which is contained in a system of records.” 5 U.S.C. § 552a(b). “System of records” means “a group of any records under the control of any agency from which information is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual.” 5 U.S.C. § 552a(a)(5) (emphasis added). The Act does not apply to third parties whose names are referenced in court records, where the records are not retrievable by the third party’s name or identifier. Baker v. Dep’t of Navy, 814 F.2d 1381, 1384 (9th Cir. 1987). The Act also does not apply to documents unless they reflect “some quality or characteristic” about an individual and such person is the direct “subject” of the document, not an incidental reference to a third party. Unt v. Aerospace Corp., 765 F.2d 1440, 1449 (9th Cir. 1985). 

82. The Privacy Act must be read in conjunction with Art. 140a’s more specific requirements to permit timely public access to court-martial records and docket information at all stages of the proceedings. The Privacy Act also does not supersede the First Amendment and common law presumptions of access to court proceedings and records, described below. 

83. Nothing in the Privacy Act requires Defendants’ automatic denial of timely public access to all military court records, the permanent denial of access to key portions of court records, and the permanent denial of all case files in cases that end without a guilty verdict. Nor does the Privacy Act require preliminary hearings in court cases to be conducted in secret without notice to the public. 

84. In fact, the government sometimes publishes the charge sheet, search warrant materials, and notice of an Article 32 hearing, despite its claimed restrictions under the Privacy Act. 

85. The Army has posted court records in virtual reading rooms during certain court-martial proceedings, despite the Privacy Act. See, e.g., CCR v. Lind, 954 F. Supp. 2d 389, 403 (D. Md. 2013) (noting that during court-martial of Chelsea Manning, “the Army released to the public, on the internet, in readily downloadable form, the vast majority of the documents that had been filed”); United States v. Bergdahl, Hearing Tr. 112–13 (Attachment A to Govt. Response to Defense & ProPublica Motions for Release of Documents) (order by military judge requiring government to publish online, on an ongoing basis, unclassified court documents within 24-48 hours of filing).

The amended complaint alleges that initial Pentagon guidance on 140a has been out of date, out of line with Article 140a, internally inconsistent, and improperly vests discretion in military officials to determine public access rights. 

73. On January 17, 2023, about four months after ProPublica filed this lawsuit, Ms. Krass [DoD General Counsel] issued revised rules regarding Art. 140a. They affirm and enable the Navy’s existing policy of withholding timely access to military court records. Invoking the Privacy Act, the rules advise the military services that they do not have to make any records public until 45 days after the record is “certified” following trial, and then only if the accused is found guilty.17 Military Justice Case Management, Data Collection, and Accessibility Standards § IV(E)(2). Even then, similar to the JAG instructions, the revised rules say the services are only required to release limited parts of the record, excluding critical portions, such as any exhibits or evidence submitted to the court, any transcripts of the proceedings, or the Article 32 report. § IV(C)(2)-(3). 

74. Notably, the revised rules also allow the services to exclude Article 32 hearings from their dockets. § IV(C)(1)(a). 

75. Instead of “uniform standards and criteria,” the revised rules give the military services discretion to decide in “specific cases” whether to release “additional” records beyond those required to be released, whether to release them in a timely manner, and whether to release them in cases where there were no findings of guilt. § IV(F). In such cases, the revised rules state that the services “must balance the public interest in disclosure . . . against the privacy interests of the accused, minors, and victims of crimes after appropriate redactions are made.” § IV(F)(2). 

76. The rules provide certain non-exhaustive factors to consider: offenses involving property damage or loss greater than $2 million, offenses punishable by death with at least one aggravating factor, offenses resulting in death, grave breaches or serious crimes under the Law of Armed Conflict, proceedings involving an accused who is a general or flag officer or serving in a command billet in the grade of E-9 or O5 or above, or “other cases of potential high public interest, as determined under procedures established by the Secretary concerned.” § IV(F)(3). 

77. The Navy has not provided such “additional public access” with respect to any requests submitted by ProPublica. 

78. The revised rules acknowledge that the public’s right of access under Art. 140a is “distinct” from the right to request federal records under FOIA. § IV(F)(6). 79. The revised rules give the military departments 240 days—or by September 14, 2023—to issue revised regulations and until December 27, 2023, to “reach full compliance,” even though Congress already required their compliance with Art. 140a by December 2020.  

The case is Civil Action No. 22-1455-BTM-KSC in the U.S. District for for the Southern District of California, before Judge Ted Moscowitz. The amended complaint is Document Number 38. Since it was filed in federal court, the document is available to the public on PACER.