UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

Dallas Division

ROBERT HOPKINS, III, * 

 * 

Plaintiff, * 

 * 

 v. * Civil Action No. 3:22-cv-00706 (E) 

 * 

DEPARTMENT OF DEFENSE, *

 * 

Defendant. * 

 * 

* * * * * * * * * * * * * 

PLAINTIFF’S MOTION TO PARTIALLY UNSEAL CLASSIFIED 

APPENDIX

Plaintiff Robert Hopkins, III (“Hopkins”) commenced this litigation against 

Defendant Department of Defense (“DOD”) in 2022 in part to challenge the 

unconstitutional prior restraint imposed upon him with respect to documents that 

he properly submitted for prepublication review. In support of its motion to dismiss 

and for summary judgment, Dkt. #32, DOD filed a Classified Appendix ex parte

and in camera. (Not. of Lodging of Ex Parte, In Camera Class. App’x, Dkt. #32-4, 

at 1 (filed Oct. 4, 2023) [hereinafter Not. of Lodging].) Hopkins now respectfully 

asks the Court to unseal the following two categories of information and direct 

DOD to file redacted copies including this information in the Unclassified 

Appendix: 

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• portion marks and other classification markings for all three 

declarations; and

• the “table identifying which components applied which redactions.”

(Id.) 

As explained in the following memorandum, which has been included in this 

Motion due to its short length, the presumption of access to judicial records 

outweighs any interest DOD may have in the nondisclosure of this unclassified 

information. 

A district court’s decision to seal or unseal a judicial record is reviewed on 

appeal for abuse of discretion. Binh Hoa Le v. Exeter Fin. Corp., 990 F.3d 410, 

418 (5th Cir. 2021). DOD opposes this Motion. A proposed Order accompanies this 

Motion. 

Memorandum of Points and Authorities

I. THE PRESUMPTION OF ACCESS APPLIES

The fact that both of these categories of information are being offered as 

material evidence to support summary judgment heavily supports the unsealing of 

this information. See, e.g., United States v. Amodeo, 71 F.3d 1044, 1049 (2d Cir. 

1995) (identifying “role of the material at issue in the exercise of Article III 

judicial power” as a key consideration). This presumption in favor of disclosure 

can be found in both common law and First Amendment jurisprudence. See Nixon 

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v. Warner Communications, Inc., 435 U.S. 589, 597 (1978) (“It is clear that the 

courts of this country recognize a general right to inspect and copy public records 

and documents, including judicial records and documents.”). The Third Circuit 

summarized the existing case law thusly:

The public’s exercise of its common law access right in civil cases 

promotes public confidence in the judicial system . . . . As with other 

branches of government, the bright light cast upon the judicial process 

by public observation diminishes the possibilities for injustice, 

incompetence, perjury, and fraud. Furthermore, the very openness of 

the process should provide the public with a more complete 

understanding of the judicial system and a better perception of its 

fairness. Access to civil proceedings and records promotes public 

respect for the judicial process and helps to assure that judges perform 

their duties in an honest and informed manner. Accordingly, we have 

applied the presumption of public access to a variety of civil hearings 

and records, including the transcript of a civil trial and exhibits admitted 

at trial; settlement documents filed with the district court as well as 

post-settlement motions; and a civil hearing for a preliminary 

injunction and transcripts of that hearing.

Republic of Philippines v. Westinghouse Elec. Corp., 949 F.2d 653, 660 (3d Cir. 

1991) (internal quotations and citations omitted). See also Richmond Newspapers 

v. Virginia, 448 U.S. 555, 580 n.17 (1980) (“historically both civil and criminal 

trials have been presumptively open”); Brown & Williamson Tobacco v. FTC, 710 

F.2d 1165, 1178 (6th Cir. 1983) (“The Supreme Court’s analysis of the 

justifications for access to the criminal courtroom apply as well to the civil trial . . . 

. The concern of Justice Brennan that secrecy eliminates one of the important 

checks on the integrity of the system applies no differently in a civil setting.”).

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By the same token, the Court should not be swayed by the fact that parts of 

this case involved classified information, because there is no reason to believe that 

this information is properly classified. Accordingly, without any evidence to the 

contrary, the presumption in favor of disclosure cannot be rebutted, since “[t]he 

government has no legitimate interest in censoring unclassified materials.”

McGehee v. Casey, 718 F.2d 1137, 1141 (D.C. Cir. 1983).

Just three months ago, the Fifth Circuit explained, “We recently instructed 

that ‘courts should be ungenerous with their discretion to seal judicial records’ and 

warned that ‘we heavily disfavor sealing information placed in the judicial 

record.’” IFG Port Holdings, LLC v. Lake Charles Harbor & Terminal Dist., 82 

F.4th 402, 411 (5th Cir. 2023) (citations omitted) (quoting Binh Hoa Le at 418 and 

June Med. Servs., LLC v. Phillips, 22 F.4th 512, 519-20 (5th Cir. 2022)). DOD 

cannot overcome this presumption with respect to the information at issue in this 

Motion.

II. INTRODUCTION TO PORTION MARKING

To clarify, portion marks are the codes placed at the beginning of each 

paragraph of a classified document specifying the level of classification of the 

information in that paragraph. According to the governing Executive Order, 

“[w]ith respect to each classified document, the agency originating the document 

shall, by marking or other means, indicate which portions are classified, with the 

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applicable classification level, and which portions are unclassified.” Exec. Order 

13,526 § 1.6(c). “Portions of documents shall be marked, at the beginning of each 

portion, in a manner that clearly identifies the classification and applicable control 

markings for that portion.” Office of the Director of National Intelligence, 

Intelligence Community Directive 710: Classification Management and Control 

Markings System § D(1)(g) (June 21, 2013) [hereinafter ICD 710], available at

https://www.dni.gov/files/documents/ICD/ICD-710.pdf (last accessed Jan. 5, 

2024). For example, the Classified Declaration of Andrew T. Walter begins:

1 (U) This declaration is in support of the Department of Defense’s 

(DoD) motion for summary judgment in this proceeding. The 

statements contained in this declaration are based upon my personal 

knowledge or information provided to me through the exercise of my 

official duties.

App. 306; Walter Decl. ¶ 1. In this paragraph, the portion mark (U) indicates that 

the entire paragraph is unclassified. If the portion mark was instead (TS//NF), this 

would indicate that the highest level of classification of information in that 

paragraph is Top Secret (TS) and that the classified information is not releasable to 

foreign nationals (NF). Controlled Access Program Coordination Office, 

Intelligence Community Authorized Classification and Control Markings Register 

and Manual Volume 5, Edition 1 28 (Mar. 30, 2012), available at

https://www.dni.gov/files/documents/FOIA/Public_CAPCO_Register%20and%20

Manual%20v5.1.pdf (last accessed Jan. 5, 2024).

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“Portion marks must be used on all classified information regardless of 

format or medium, unless a waiver has been obtained in accordance with guidance 

from the [Information Security Oversight Office]. . . . Portion marks must always 

be placed at the beginning of the portions, immediately preceding the text to which 

it applies. This position affords maximum visibility to the reader. . . . If a classified 

document that is not portion marked is transmitted outside a unit that routinely 

deals with the subject information, the document must be portion marked.” Id. at 

16-17. In short, all classified documents must be portion marked, and all 

information in classified documents must be portion marked. 

III. THE LACK OF AN OVERRIDING GOVERNMENT INTEREST

Simply put, there is no legitimate government interest sufficient to overcome 

the strong presumption of access to court records. As shown above, portion marks 

are simply standardized marks which are required to be placed in documents 

containing classified information. For unknown reasons, when DOD redacted 

language from the classified declarations, it redacted the portion marks as well. 

E.g., App. 308-12; Walter Decl. ¶¶ 8-12. Except in rare circumstances, none of 

which are present here, the classification level of redacted information cannot be 

considered a piece of classified information in its own right. Instead, DOD is 

abusing the redactions simply to obtain a litigation advantage, ignoring the fact that 

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it can only redact properly classified information from its evidentiary filings.1 This 

is true for the two declarations for which it has already filed redacted copies on the 

public record, and it is equally true for the declaration it has filed ex parte and in 

camera in its entirety (Not. of Lodging at 1).

Similarly, absent some currently undisclosed government interest, “a table 

identifying which components applied which redactions” (id.) is also not properly 

classified information, when one considers that the information to which it relates 

remains redacted. As a hypothetical example, releasing a piece of this information 

would effectively inform a reader that the first line of page 26 was redacted by the 

National Security Agency (“NSA”), which is meaningless if the reader does not 

know what the first line of page 26 actually says. In contrast, Hopkins can 

potentially use this information to refute DOD’s claim that the first line of page 26 

was properly censored, perhaps by demonstrating that his source was a declassified 

NSA publication (as opposed to a publication from another agency), or perhaps by 

demonstrating that NSA had no equities in the information in that line and so could 

not legitimately censor it. Meanwhile, according to the Court’s prior ruling, 

Hopkins’s declaration explaining this analysis will also be filed ex parte and in 

camera, and so the connection between the agency and the redacted information 

1 By the same token, DOD should be required to remove the redactions of the banners at the top of each 

redacted page which provide the classification markings for the entire document.

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remains hidden from public view, even if it might otherwise be properly classified 

in its own right (which Hopkins contests). In other words, unless DOD can 

convince this Court that the DOD components who censored Hopkins’s 

manuscript—the identities of which are already public—must not be accountable 

for their specific acts of censorship because their respective responsibilities for 

specific redactions is properly classified, the Court should find that DOD has not 

met its high burden to conceal this information from Hopkins and the public.

IV. CERTIFICATE OF CONFERENCE

The undersigned conferred with DOD’s counsel John Lewis and Lisa 

Newman conferred regarding the relief requested in this Motion on 23 October 

2024. DOD’s counsel responded, in pertinent part, “We . . . see no need to disclose 

the portion-markings for the redacted paragraphs in the declarations or in the fully 

classified declaration to you at this time. Revealing that information could also 

reveal information about the substance of the redacted paragraphs. . . . Similarly, 

the Department of Defense, as a matter of policy, does not disclose which 

component made which redaction to uncleared persons, as doing so could also 

provide information about the substance of the redactions.” In a followup 

discussion, DOD’s counsel advised the undersigned that “all of the paragraphs that 

have been redacted from the two declarations in the unclassified appendix, as well 

as the entire fully sealed declaration, are marked classified.” However, this does 

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not resolve the issue, since there is no question that the sealed declaration as a 

whole is marked classified; that only means that it contains classified information, 

not that it only contains classified information, and in any case it does not shed any 

light on the level of the classified information allegedly present in the withheld 

portions. Accordingly, the parties were unable to reach agreement. 

V. CONCLUSION

The Court should grant this Motion and order DOD to file redacted copies of 

all three declarations on the public record with all classification markings intact, as 

well as a fully unredacted copy of the table identifying which components applied 

which redactions. A proposed Order has been included with this Motion.

Date: January 5, 2024

 Respectfully submitted,

/s/ Kelly B. McClanahan 

 Kelly B. McClanahan, Esq.

 N.D. Tex. Bar #984704DC

 National Security Counselors

 4702 Levada Terrace

 Rockville, MD 20853

 301-728-5908 

 240-681-2189 fax

 Kel@NationalSecurityLaw.org

Counsel for Plaintiff

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CERTIFICATE OF COMPLIANCE

I hereby certify that the foregoing filing contains 1894 words. 

 /s/ Kelly B. McClanahan 

 Kelly B. McClanahan, Esq.

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