good afternoon to me at least the court my name is stephen frisbee and i represent the state of alabama in this case no circuit has ever recognize a common law right of access to a state's lethal injection protocol and no circuit has ever recognized the right of the press to access and file documents in an already disposed of civil proceeding but the district court here did both when it granted the presses motion for a right of access to alabama's lethal injection protocol and it ordered the state to open it an already disposed of case to provide the protocol to them this receiver for you move on to the argument could i ask you one question to see what it is you're maintaining on appeal you're not objecting to the unsealing of the proceedings before the district court for example the transcripts of the hearings held before the district court you're just objecting to the unsealing of the protocol itself is that accurate or not accurate yes yes your honor that that is an accurate statement the state does not object to that the district court's decision to unseal that the transcripts and i believe mr ham second amended complaint in this case what is objecting to however is the decision to require the state to provide the press after th case has been disposed of the confidential lethal injection protocol and the state maintains that the district court's decision in this case it should be reversed for three reasons first there is no right of access to a state's confidential lethal injection protocol second even if there were such a right this court has held for thirty years of the right does not extend to unfiled documents in a civil case and third or even if the right of access did extend to on file documents in a civil case the state's interest in keeping a protocol confidential outweighs the press's only stated interest and accessing it now turning to my first point there is no right of access to a state's confidential lethal injection protocol the only court that handled this issue squarely is been the circuit where larry flynt asked for a copy or the court to unseal missouri's lethal injection protocol if the protocol had been filed w constituted judicial record no your honor the safe position was that it was it was well the number one it wasn't filed in this case i know it wasn't file but if it was filed would it have constituted judicial rec constitutes a judicial record it would be subject to the common law right of access right well your honor i think that the state's position in this case is that if any party doyle ham or the district court tried to move the or admit the document to lethal injection protocol into the record to try to move and make it an exhibit in the district court for example the state would have objected because this court as well as many others have said that even a death row inmate is not entitled to a lethal injection protocol to litigate a method of execution challenge the state provided the lethal injection protocol in this case to mr state gets the interest of the interveners and your honor i think that if the court had tried to do that we would it we would have objected and we would have come up here and we would have asked this court to keep that record out of the public domain your objection might have been overruled for yes your honor very well may have been but this this court has held and well and in grayson that this type of document is one a death row inmate is not even titled to to to litigate his method of execution claim and if he's not entitled to it to litigate his method of execution claim the press is not entitled to or it's not there the court is not entitled to put it into the public domain in that way and the state provided this  record what's the site for that case we want to there is no love a circuit case that cites that but the one circuit that has addressed the issue has been the eighth circuit in flint versus lombardi and that was in two thousand and eighteen actually was about fifteen days decide about fifteen days before the press moved to intervene oil hands case to ask for the protocol and in that case the eighth circuit said that the press does not have a common law right of access to a state's confidential lethal injection protocol but they also went on that case to say that there is no constitutional right of access to a le injection protocol either the eighth circuit is the only court to squarely address the common law right of access issue but in that case to that nor does the what is it about on an execution protocol that makes it so unique in your view if the state of alabama or the state of florida or the state of georgia had a protocol for how it was going to try to feed inmates diet that was substandard even by prison standards would that be something that and that was presented as a judicial record in an eighth amendment case or a prison conditions case would that also be immune from unsealing here i think it's not just the sta can't get it in a certain scenario and i'm asking you what is it about that protocol that makes it in your view immune from a common law right of access well your honor i think if you can get over the threshold question of whether it's even a judicial record in the first one it's not let let's go to that issue what what do you do with newman versus craddick which despite what you say the case rights or doesn't right that case directed  unsealing of prison the list provided by the state or the director of corrections that were not filed in court so whatever was argued whatever was not argued that case ordered the unsealing of documents that had not been filed on the docket and according to your view were not you dish all records how do you get around newman well your honor i get around newman and another way to there's no no indication in the decision itself in newman i don't have access to the docket sheet in that case about whether those those documents provided provided under a consent decree to the court what why does it matter if your position is that it has to be filed in the docket by a party what does it matter if they were filed in the in the graphic case your honor they were sent to the judge pursuant to his direction but they were not filed on the docket according to everything i've been able to prior panel precedent rule requires us to adhere to the earliest decision in a line of cases that espouses a particular holding well and i think your honor first of all credit does not involve the same type of documents  issue in this case in this case what we're dealing with are documents that were provided in discovery under confidentiality order in graphic you're talking about documents that are provided after a case under a consent decree to the court and  honor i don't think it was going to let me ask you as a matter of just a just as a general proposition forget this case is the public at title to know when a judge relies on and reaching a decision the abbey products case where it says you look at the type of filing a document accompanied not whether the court relied on some document and reaching a decision to determine whether a document is a traditional record and why would the public be interested in anything the judge did the court's decision the public have a right to have all those copies nearer the public house court house and look at them i suppose your honor i think that the common law right of access allows the public to gain access to documents that are actually judicial i guess it depends on the judgment of the court your honor but they've not got the judge relies on certain materials provided by the parties which are not on the record and then issues a decision saying that it relied on certain to to maintain or to make sure there is confidence in the judicial decision that the court the public have a right of access to judicial records that are filed in a case now if they if a trial judge or district court judge cites something ruled as the public has a right know why a judge decides a matter well your honor the public has a right to the order itself that the judge no i don't know that they can easily order and doesn't know how to judge get there are they entitled to know how the judge got there your honor not if it relies on a document that is not in the record in this case and that's the point and that's the point this court made in an adze products which is exactly what the pharmaceutical company abbey wanted they attached a financial analysis to a complaint and tried to argue that th the financial analysis that was under seal was not a judicial record because the court did not rely on it never talked about it and its decision in the case and this court rejected that approach saying we don't look at how many times a court cite something relies on something  reaching a decision to determine whether it's a judicial record and stead you look at the type of file in a company and so if it did not accompany a filing that appears nowhere in the record as the district court found in this case it cannot be a judicial record that is subject to the only entitled to the documents that are on file your honor that i have to do that had to do with the judicial process here either the public has a right to that right or not to petition for any document that is a judicial record that is a found its way into the case in the district court now judge badgering found that to be true in her april third order when the press moved to intervene in fact they couldn't point to a place in the record in the district court to ask the court to unseal order but then after this court remanded that mr ham's case back to judge balladry and order judge battery to conduct an independent medical evaluation of mr hans veins the independent medical examiner said his veins were fine and judge ba response to that was saying that in every february sixteenth that there was no further need to tell the album's lethal injection protocol so the ultimate decision in this case to deny mr hamm a stay of his execution she did not need the grant grant and company litigation case and chicago tribune i think is instructive on this because in chicago tribune what they were looking at was the motions for discovery motions filed with the court that include documents and this court said those aren't subject to the common law right of access or dogmas or even filed that are subject to come up when you have a confidentiality order and we've sanctioned the use of umbrella confidentiality orders don't the parties have to justify the confidentiality order when someone seeks to unseal and show both a compelling governmental interest and a means narrowly tailored to that interest don't you have once  putting aside the whole common law access route once somebody says hate that documents should not have been sealed don't you have to justify under those two standards yes your honor your  the what's the compelling governmental interest here given that the district court redacted the protocol to remove all security information well your honor to answer that question the the guy the  court and highlights the problem but as things stood the district court gave you the opportunity to redact whatever security information youth it was in the protocol so if the district co you that option what is the compelling governmental interest in keeping the rest of it under wraps well your honor if i may before answering that question say that the confidentiality would to get to that analysis there has to be a document to unseal in the first place there is no harm done on site i'm citing cases that we've dealt with with documents that were exchanged in discovery wilson for example where we haven't talked about the common law right of access but because the public generally has a right to open judicial proceedings both civil and criminal once the parties agree in the court agrees to put something under a confidentiality order that's always subject to a later challenge because proceedings are supposed to be open we don't whether right or wrong we've said that in discovery cases not cases where something's been filed in court on behalf of a party but what do you do with those cases yes your honor i would say this the lethal injection protocol is up on appeal of course the protocols of the record and let's suppose we can't write a decision the to command the respect of the public and the law in general without revealing the protocol because we have be and we need we need to deal with that in order to to reach of the senate that has some presidential value so your argument is we can't do that in this case judge which is not i'm not talking about this case co dealing with a principle are you saying that we cannot do that your honor i would say that if there is no document in the record since no i will say that we cannot do that counsel in a case in which it's part of the decision or your honor you can't just say yes or i want to make three key points first the protocol is a judicial record second the district state hasn't demonstrated that the district court abused its discretion in finding if the state failed to overcome the presumption in favor of access you just record like the protocol in this case and third your honor the trial court did not abuse is discretion and granting intervention turning to my first point this little injection protocol is a judicial record and f t c vs abbey products this court held the common law right of access attaches to documents presented to a court in connection with the judicial resolution of a subset of issue but a little later case seems to suggest that it has to be filed to be a judicial record you think the is wrong or that it deviated from prior precedent or that it's distinguishable but no your honor we believe that abby is correct but that abby doesn't hold that formal filing is necessary for something to be a digital record and n this court through the line that it already drew in chicago tribune vs bridgestone firestone that discovery documents attached to discovery motions are not subject to the common law right about access but scary documents attached to substantive motions like pleadings or motions for s press has a right to on that record it's still a judicial record the public has  record you know you go down to the courthouse and look at the record anybody in the clerk's office you're talking about sealed records because otherwise as just show flat said someone can go to the clerk's office and look at a public docket and see what's been filed or hasn't been fine right your honor in this case and in this court's precedent considering has considered documents that were initially under seal then determine whether or not that that that's what the district court did after we moved to intervene in the district court had seen a copy earlier in the litigation and that's a made factual findings about whether or not the right was overcome but as i mentioned in this case in now be this court made clear that while filing may be eighteen the litigant wasn't seeking access to missouri's lethal injection protocol the litigant was seeing access to declarations from what it says about the call for cations of two particular members of the medical team involved in missouri's process and he say that he wanted to do it because he wanted to act to know whether or not they were qualified or whether they had certain certifications and in the in that case the circuit held that he didn't have access or a right of access to those documents because they contained personal information about individuals that could be used t a dentist by them that's a much different case than what we have here the district court had already noted that while and we agree that the state has a legitimate interest in privacy any information that's private in the protocol and any information that bears on the security protocols of the president and we agree that's a legitimate interest but the the district court was correct in holding that those interests could be protected through redactions rather than non disclosure  medical team in missouri and they wanted to know whether or not they were qualified to carry out their duties and the in the process they certainly were concerned that this could be used to identify those individuals as private persons and that that's not what we're trying to do in this case and that's we have no reason to believe that kind of information disclosure that presumption has to be outweighed along with any other factors weighing in favor of disclosure and your honor it in this court given that the correct rules that document submitted to a court in connection with the judicial resolution of a substance issue or judicial records that the circuits president is backed up by the purpose of the common law right in the first place prior roe in prize wherever it is united states attorney general what transpires in the courtroom is public property and  democratic process it helps the public to appreciate fully the often significant issues at issue in public of occasions and the working of the court system and helps to secure the integrity of the process and helps maintain public confidence in the courts and the definition of the just record of this establishes serves the purpose of that rule and the right ensures that any time a court is serving a judicial function the public is able to see the material submitted to the court and on which the court might  judgment and mr ham's motion for plenary injunctive relief this entire case is about whether the procedure laid out in that protocol could be applied and mr ham's case in compliance with the constitution and it's a key document to understanding as the court explained below the lethal injection protocol was central to mr hammes as applied claims it needs to review the protocol as much if not more in the mr hand did it relied heavily on the protocol in issuing its decision and the protocol was vital to resolving the merits of this case the state's rule would undermine the purpose of the common law right of access it would prevent the public from understanding the district court and this court's decision and opinions in this litigation it would prevent access to the key document that was before the court in this case the state's rule goes against both this court's precedent and the purpose of right as i mentioned earlier course in the circuit have not made a formal filing distinction and that's what might be sufficient th things informally all the time without submitting themselves to a formal discovery process under court order rule twenty six for example requires parties to exchange a certain amount of information before the court even gets formally involved was  protocol to mr hammond as counsel and to give a copy of the protocol to the court in order to resolve their motion so this was in the context of the sky every it was it was necessary to resolve the main issue whether it be what they were genuine issues of material whether the state could execute mr hamm in compliance with the constitution  court if you're going to have no further questions about what the lethal injection protocol is a judicial record i'll move on now to the second issue whether the presumption in favor of the right of access was overcome on that note your honor this court's recognized and supreme court has court decision is reviewed under the abuse of discretion standard of review here the district court properly identified and evaluated the six factors that are necessary and challenging whether or not the presumption is overcome and your honor so it is a strong presumption that records are open to the redactions rather than total non disclosure on that first point your honor the factor as well they're not the records relate to a matter of great public interest and the district court properly found that given that this is a death penalty litigation and and that's a matter of public policy it's a matter of great debate in this country and in the state and in the state of alabama the record clearly we're late it's a matter of great public interest and not fact are we in favor of disclosure i say the second prong your honor is whether or not access promotes understanding of a matter of there was a great deal of media reporting both nationwide and at the local level in alabama about mr hamdan execution and eventual states an actual failure to execute mr ham having access to the protocol as a district court correctly found what helped the public to understand what happened both in the litigation in the district court and in this court and would help the public to understand what happened in the field execution it as the district court noted it might also help  scenario happened or how it might be avoided in the future and the third factor also weighed in favor disclosure as the district court properly found the court found that there had been substantial access to the protocol and that's true this year court noted that it kept its description of the protocol deliberately bag and that it didn't quote extensively from the protocol or summarize it extensively further the district court also noted that while it except there isn't a summary of the protocol that there is not a substitute to access the record itself and the fourth factor your honor whether or not the record of sought for an improper purpose that's clearly not the case here in their briefing the state argued that this was sought to promote a public scandal but that's not the thing that th or the supreme court had in mind when they talk about the public scandal problem the public scandal prong is about it involves private persons it involves situations when somebody is seeking access to records in a divorce case in order to embarrass or harass somebody or when someone is seeking records the constitution is a matter of great public concern and a matter of public interest this is not the kind of scandal that the supreme court or this court had in mind when they when they devised that prong and that the district court properly found that factor again weighed in our favor and finally  if as we've talked about the six factor whether or not there was a legitimate security or privacy interest in the protocol as i've said we don't contest that interest we believe it's a legitimate address but it can be addressed sufficiently through it actions and if your honour's have no questions about a first amendment right to the federal question your diction the problem here is do we treat the motion that has been has but as having been filed but for the special although momentarily did the courts sealing orders operate like ongoing injunctions and the courts still retain jurisdiction over whether they should be modified or whether they were granted improperly recorded in mcdonald  is right your honor i think the point is just in the circuit the way that the court has treated motions to intervene after cases have been as messed in order to assert a common law right of access as that the court still has the ability to modify the protective order or the sealing order or de to do that is to move to intervene and the court can then resolve that issue of whether or not the sealing order was improperly granted or should be modified and that's what the court did in this case and that that's proper on this court's precedent and i also want to know your honor that the decision to grant and our response to the district court's order requiring the state to respond to the press's motion to intervene and unseal the documents the first thing the state asked in that was the court to reconsider its or granting the president right to intervene in this case in the first place and the state made several arguments about the timeliness of the motion the court denied that the state's motion to reconsider and the time as a motion here waiting till after the case was dismissed it also highlights the problem with their balancing of the interest test if this court were to assume that this unfiled protocol or a judicial record in this case you'd still have to balance the interests of the parties in this case and as the eight circuit and this court other courts have pointed out that the state have a compelling interest in being able to carry out executions now one that's but that's not the same thing as being able to keep secret the protocols for carrying out those executions when i know history isn't always a guide but when state methods of execution were challenged in the past whether it was a firing squad in utah or a gas chamber in louisiana or hanging in the state of washington state produced their protocols they told the courts hey for example where the state of washington we use the army field manual in carrying out our executions by hanging and therefore there isn't going to be any cruel and unusual punishment because the condemned person's neck will snap and that will take care of thing is a relatively instantaneous death so as a historical matter states have produced voluntarily their protocols to show courts and litigants and for that matter the public but they're doing things in a way that comports with the law why what is it again about alabama's have i believe universally been up held to be able to keep that protocol confidential the only circuit court that is required the state to produce a confidential lethal injection protocol was the ninth circuit in what versus ryan where they made the chart over to a death row inmate but that decision was summarily vacated without the sent by the united states supreme court so states can choose to keep the protocol confidential i don't listen but i'm asking you legally what is it that makes the protocol still so unique that it has to be kept under wraps and you're out of this protocol from front to back the state would argue as is riddled with security issues the district court has told you that it will it's willing to redact if you give it the chance to re dact but it hasn't been able to do that yet because you asked you know rightfully for a stay and got the stay and we're here yes your honor and even the things that we have that the court has said that we could redact from it the issues in the protocol that the court said we cannot read back the state would maintain that they all intel the procedures in carrying out an execution involves security details why why is why is all of that if you say let's make up a hypothetical is your this is not this case this is not the state of alabama this is enough world far removed the state says our protocol to save money is that we are going to have someone else volunteer come in regards of experience and is going to try to find a vein in a condemned person and administer the lethal cocktail ok let's say that is the protocol and it wants to keep that quiet and under wraps what is it about that fictional state that makes its protocol so unique so compelling that it has to be kept from everybody your honor in that case if that's all the protocol said that we're going to have somebody come in and do that i think that's different from what we're talking about here it would matter what the protocol says your honor i think if the if the protocol the state says here is it from front to back contains security problems there's at the state doesn't see a way to redact us and then we have no assurance of what we do redact the district court's even going to accept that but again that still highlights the problem with the overarching problem with this case that that doyle hand execution was scheduled for february twenty second the press did not the next day go and file their motion intervene in mr ham's case in the northern district of alabama they didn't wait a week to do it they didn't wait two weeks to do it they didn't wait three weeks to do it they waited thirty four entire days when they claimed that the press sat that can't be on unseasonably long period of time well you're i mean if they had asked for it before you would have said we're an ongoing litigation you know we believe that we can legally put mr hamm to death and keeping our protocol secret or at least not available to the public for the time being is necessary and then you would have waited until the case was over when the there was no pending execution of mr hammond you would have had to litigate the case again but now your honor i think that our objections would still be the same that they're still not a filed document to unseal in this case because because it's not formally filed what's because it doesn't appear anywhere your honor but that's different than why it's so important to keep it under wraps and i sed i still have yet to hear a reason why an execution protocol that is going to be redacted as to security issues in the protocol that have had that have been made public for example the consciousness of stuff and i think as discussed in this court opinions several to several different opinions the the three drug protocol obviously in this case it's public that there are i v line placement there's two i v s and if they can't if the team cannot obtain peripheral then us access the medical personnel will attempt to central that us access and in your attitude to that that point is that the court but the under this court's balancing of interest test the question and the way they phrase it was whether that had substantial access to the protocol itself but that's not the test the test is whether they've had substantial access to the contents of the protocol so whether it prejudices the state is immaterial to that discussion rather the question is have they had substantial access to the content of the protocol it's clear they have they've reported on it ad nauseum so you don't think prejudice to you is a factor to be considered i don't think out of that that one of the balancing of the interest has i wondered on whether any under any promise when it gets to the state's ability to carry out executions yes i do think that that the state would be prejudiced to turn over th assurance from the district court that are redactions will even be accepted and that a factor that the district court takes in the consideration and determining whether or not the media is going to be granted access is whether or not there are security