Attorney's Office apparently disregarded or was not aware of in the proceedings before the lower
court. Id.
Not only are the appellate briefs subject to the strong presumption of openness that
applies to all judicial documents but there is also an intense public interest in disclosing these
specific documents because they will shed light on why the District Attorney's Office initially
took the controversial decision to argue in favor of lenient treatment ofEpstein. 2 As Justice
Burger wrote, "[p ]eople in an open society do not demand infallibility from their institutions, but
it is difficult for them to accept what they are prohibited from observing." Richmond
Newspapers, Inc. v. Virginia, 448 U.S. 555, 572 (1980). "Only a free and unrestrained press can
effectively expose deception in government. And paramount among the responsibilities of a free
press is the duty to prevent any part of the government from deceiving the people ...." N.Y.
Times Co. v. United States, 403 U.S. 713, 717 (1971) (Black, J. concurring). In short, the
appellate briefs should be unsealed so that the Post can inform the public about the decisions
taken by the District Attorney's Office with respect to Epstein so that the public can decide
whether there was anything careless or improper about those decisions.
The need for transparency and public understanding of why the District Attorney's Office
handled the Epstein case the way it did is heightened by the fact that District Attorney Vance has
faced criticism over claims that his office gives favorable treatment to rich and powerful men
2
The presumption ofopenness is grounded in the U.S. and New York Constitutions as well as deeply-entrenched
common law rules that govern this Court. The First Amendment to the United States Constitution and article I,
section 8 of the New York State Constitution both recognize the presumptive right of the public and press to access
and inspect court records. Press-Enterprise Co. v. Superior Court, 478 U.S. I (1986); Globe Newspaper Co. v.
Superior Court, 457 U.S. 596 (1982); In re Associated Press v. Bell, 70 N.Y.2d 32,517 N.Y.S.2d 444 {1987). In
addition to being well established under the federal and state constitutions, the right of access to court records "is
also firmly grounded in common law principles." Danco Labs., Ltd v. Chem. Works of Gideon Richter, Ltd., 274
A.D.2d 1, 6, 711 N.Y.S.2d 419,423 (1st Dep't 2000)(citing inter alia Nixon v. Warner Commc'ns, Inc., 435 U.S.
589, 597 {1978)). See also People v. Burton, 189 A.D.2d 532, 535-36, 597 N.Y.S.2d 488, 491-92 (3d Dep't 1993)
("a common-law presumption" favors public access to court records); In re Application of National Broad. Co., 635
F.2d 945, 949 (2d Cir. 1980) ("[T]he common law right to inspect and copy judicial records is beyond dispute.")
( citation omitted).
4811-372 l-9459v. 3 393003 3-000039
13
accused of sexual abuse. As the New Yorker reported, DA Vance declined to charge Harvey
Weinstein with a sex crime in 2015 even though investigators collected ample evidence that he
had groped an actress without consent. See Jennie Suk Gersen, Why Didn't the Manhattan DA
Prosecute the Trumps or Harvey Weinstein, NEW YORKER (Oct. 13, 2017) available at
https://www.newyorker.com/news/news-desk/why-didnt-manhattan-da-cyrus-vance-prosecutethe-trumps-or-harvey-weinstein.
Even after the emergence of the #Me Too movement and the
indictment of Harvey Weinstein on rape charges, the Manhattan District Attorney's Office has
continued to face criticism for failing to prosecute the Weinstein case aggressively enough. Id.
District Attorney Vance is an elected official who wields an immense amount of discretion over
prosecutions. The people of New York have the right to scrutinize how his office treated this
case involving a rich and well-connected sex offender, especially in light of allegations that other
notable sexual predators have benefitted from the apparent deference of prosecutors. To put it
bluntly, the appellate briefs should be released immediately to avoid any impression of
impropriety caused by continued secrecy.
There is also a strong interest in disclosing the appellate briefs to enable the public to
review for itself the arguments that led this Court to issue the Decision affirming Epstein's status
as a level three sex offender. By ensuring public access to the courts and enabling public
discussion of the functioning of the judiciary, the news media help "the public to participate in
and serve as a check upon the judicial process - an essential component in our structure of selfgovernment."
Globe Newspaper Co., 457 U.S. at 606. As courts have recognized time and
again, "[w]ithout access to the proceedings, the public cannot analyze and critique the reasoning
of the court." Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (6th Cir. 1983).
Thus, "[ o ]penness ... enhances both the basic fairness of[ a] trial and the appearance of fairness
481 l-372 l-9459v.3 3930033-000039
14
so essential to public confidence in the system." Press-Enterprise Co. v. Superior Court, 464
U.S. 501, 508 (1984) (citing Richmond Newspapers, 448 U.S. 569-71). For this reason, the
appellate briefs should be unsealed so that the public has the benefit of seeing the very
statements and arguments that formed the basis of this Court's Decision. It is especially
important to provide a transparent view into these judicial proceedings because suspicions have
already been raised about how the District Attorney's Office handled Epstein's case.
When, as here, "issues of major public importance are involved, the interests of the
public as well as the press in access to court records 'weigh heavily' in favor of release." Danco,
274 A.D.2d at 8, 711 N.Y.S.2d at 425 (citation omitted). This constitutional presumption of
open access to court records requires "the most compelling circumstances" to justify any
restriction upon that right. In re Application of Nat 'I Broa d . Co., 635 F .2d at 952. Here, it is
impossible to conceive of any circumstances that might justify wholesale sealing of relevant
court documents that are necessary to understand how prosecutors and this Court handled a
matter of such intense public concern.
The interest of Epstein's victims to remain anonymous can be satisfied by directing the
District Attorney's Office to redact the names of victims before disclosing the appellate briefs.
To be clear, the Post has no interest in identifying victims of sexual assault who wish to remain
anonymous. It does, however, have a right to know why the Manhattan District Attorney
abruptly changed position after initially arguing that Epstein should be treated leniently. The
District Attorney's Office has indicated that it "would not oppose producing a copy of the
People's brief ... keeping intact those portions of the brief that recount the procedural history of
the SORA hearing, the portion of the brief that is seemingly of interest to the Post." Browning
Aff. Ex. E. With all due respect to the District Attorney, the Post is simply not in a position to
4811-3721-9459v.3 3930033-000039
15
evaluate whether the proposed redactions are reasonable. Because the Post cannot review any
part of the briefs, it is impossible for the Post to know whether the information it seeks is in the
procedural history section of the People's brief or in other parts of the briefing filed in the
Appeal. Moreover, courts must order narrow redactions where possible to avoid overbroad
sealing. See, e.g., Burton, 189 A.D.2d at 535-36, 597 N.Y.S.2d at 491 (requiring courts to
"consider less drastic alternatives to sealing the records which would adequately serve the
competing interests"); Maxim, Inc., 145 A.D.3d at 518, 43 N.Y.S.3d at 316 ("We recognize that
it may be easier for the parties and the motion court to seal an entire court record, rather than
make a determination on a document by document basis about sealing, but administrative
convenience is not a compelling reason to justify sealing."). In keeping with this State's strong
preference against wholesale sealing of documents, section 50-b expressly permits this Court to
release judicial documents after ordering redactions "as it deems necessary .. . to preserve the
confidentiality of the identity of the victim." N.Y. Civ. Rights Law§ 50-b. Since the only
information protected by the statute is identity of Epstein's victims, the Post respectfully requests
an order directing the District Attorney to redact only the names of Epstein's victims. 3
Since the Post does not seek the names of victims of sexual abuse and agrees that these
names should be redacted before the appellate briefs are disclosed, there should be no need under
the statute to provide notice "to the victim or other person legally responsible for the care of the
victim." N.Y. Civ. Rights Law§ 50-b(2). But to the extent such notice is necessary, the Post is
unable to notify any of the victims on its own because it has no knowledge of which victims (if
any) may be identified in the requested documents. If the statute requires victims to be notified
3
Without the benefit of reviewing the appellate briefs, the Post is not in a position to evaluate whether the briefs
contain other information that might identify Epstein's victims, such as home addresses. While the Post would not
object to the District Attorney's Office making good faith redactions of genuinely identifying information, these
redactions should be narrowly tailored and no more expansive than is necessary to protect the victims' identities.
48l l-372l-9459v.3 3930033-000039
16
even if their names will not be disclosed, the Post respectfully submits that either the Manhattan
District Attorney or the Florida Prosecutors should provide notice promptly. To require the Post
to notify victims itself - without any ability to discover who those victims are - would be an
absurd result that defeats the purpose of the unsealing provision of section 50-b, which allows
"any person" to file an application requesting that infonnation be unsealed for "good cause.''4
In sum, the strong presumption of openness that governs New York courts compels the
conclusion that the appellate briefs in this action must be unsealed (with the names of any
victims of a sexual offense redacted).
CONCLUSION
For the reasons set forth above, the Post respectfully requests an order unsealing the
appellate briefs, which directs the District Attorney to provide counsel for the Post with copies of
these documents, with the names of victims redacted, within seven days of the issuance of this
Court's unsealing order.
Dated: New York, New York
January 11, 2018
Respectfully submitted,
DAVIS WRIGHT TREMAINE LLP
/Y1
By : U✓2:
Robert D. Balin
John M. Browning
1251 A venue of the Americas, 21st Floor
New York, NY 10020-1104
Telephone: (212) 489-8230
Facsimile: (212) 489-8340
Email: robbalin@dwt.com
johnbrowning@dwt.com
Attorneys for Non-Party Movant NYP Holdings, Inc.
4
In its affidavit filed in opposition to the December 21 Motion, the Manhattan District Attorney indicated that "to
the extent that the Post is unable to furnish notice to the victims, this Office, which was not the prosecuting agency,
is not in a position to do so." Browning Aff. Ex. E. The Post has mooted this objection by refiling its motion and
providing the Florida Prosecutors with notice of its intent to wiseal the appellate briefs with victims' redacted.
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