FILED

United States Court of Appeals

Tenth Circuit

March 9, 2016

Elisabeth A. Shumaker

Clerk of Court

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CLYDE APPERSON; WILLIAM

LEONARD PICKARD,

Defendants-Appellants.

Nos. 14-3069 & 14-3070

(D.C. No. 5:00-CR-40104-JTM-2)

(D. Kan.)

ORDER AND JUDGMENT*

Before HARTZ, HOLMES, and PHILLIPS, Circuit Judges.

Defendants William Leonard Pickard and Clyde Apperson (“Defendants”)

appeal from the denial of their motion to unseal a confidential informant (“CI”)

file. Defendants assert a common-law right of access to the CI file as a judicial

record. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we conclude that

the district court failed to provide an adequate explanation of its reasoning in

light of the governing legal standards to permit our merits review. Accordingly,

* This Order and Judgment is not binding precedent, except under the

doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,

however, for its persuasive value consistent with Federal Rule of Appellate

Procedure 32.1 and Tenth Circuit Rule 32.1.

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we vacate the district court’s order and remand for further proceedings.

I

In 2003, a jury convicted William Leonard Pickard and Clyde Apperson of

various drug offenses related to the manufacture and distribution of lysergic acid

diethylamide (“LSD”).1

 See United States v. Apperson, 441 F.3d 1162, 1175,

1177 (10th Cir. 2006). The government’s case relied in part on the significant

cooperation and testimony of one of Defendants’ accomplices, Gordon Todd

Skinner. Mr. Skinner had worked as a confidential informant for the U.S. Drug

Enforcement Administration (“DEA”). At trial, the district court ordered the

government to turn over Mr. Skinner’s CI file to the defense. At the same time,

however, the court sealed the file.

In 2011, Defendants moved to unseal Mr. Skinner’s CI file. See United

States v. Pickard, No. 00-40104-01/02-RDR, 2012 WL 1658899, at *1 (D. Kan.

May 9, 2012), rev’d, 733 F.3d 1297 (10th Cir. 2013). Although Defendants’

counsel already had access to an unredacted copy, Defendants sought to unseal

the file in order to use it in connection with ongoing litigation under the Freedom

of Information Act (“FOIA”), 5 U.S.C. § 552, and other proceedings. The

government opposed the motion, arguing that Defendants had failed to show a

1 Defendants were convicted of conspiracy to manufacture and

distribute LSD in violation of 21 U.S.C. §§ 841(a)(1), (b)(1)(A), and 846, and of

possession with intent to distribute LSD in violation of 21 U.S.C. §§ 841(a)(1)

and (b)(1)(A). The district court sentenced Mr. Apperson to thirty years’

imprisonment. Mr. Pickard received a life sentence. 

2

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legitimate need to unseal the file and had not identified any public interest that

outweighed the DEA’s interest in keeping informant files confidential.

The district court denied Defendants’ motion and concluded that the CI file

should remain under seal. The court reasoned:

[S]ome aspects of these matters have been referred to by this

court and mentioned by the government at various times during

these proceedings. Nevertheless, the court fails to find that all of

the information contained in the documents has been revealed. 

The court is further persuaded that some of it should not be

revealed. The defendants have failed to indicate exactly why

these documents now need to be unsealed. They have not

specifically explained what information in any of the documents

is necessary for them to use in any appropriate legal proceeding. 

The court remains convinced that information concerning

confidential informants should remain private absent a

compelling reason. The court recognizes that much of Skinner’s

life has been placed under the microscope in this case, but we see

no need for any further examination of his past. The court finds

that the defendants have not sufficiently demonstrated the need

for unsealing these documents. The defendants have also failed

to adequately show why the public has any interest in these

documents.

Pickard, 2012 WL 1658899, at *3. Accordingly, it denied Defendants’ motion to

unseal the file. 

On appeal, we reversed the district court’s decision. See United States v.

Pickard, 733 F.3d 1297, 1300 (10th Cir. 2013). In relevant part, we concluded

that the court erred in the manner in which it denied Defendants’ motion in three

ways. See id. at 1300, 1303–05. First, it failed to require the government to

articulate a significant interest in continuing to keep the DEA records sealed. 

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Second, the court failed to apply the presumption of public access to judicial

records. And, third, assuming that the government could articulate a significant

interest, the court did not consider whether such an interest would be adequately

served by selectively redacting the documents and unsealing the rest of the file. 

Although we left open the possibility that the government could articulate an

interest that would justify keeping at least a portion of the records sealed, we

noted that “[t]he fact that some of the sealed information has already been made

public suggests that much of the information in the DEA records could be

unsealed.” Id. at 1305. We remanded for the district court to reconsider

Defendants’ motion in light of our decision.

On remand, the government argued that unsealing the records would

undercut the need for effective law enforcement, “since investigative files

‘[o]ftentimes [contain] an informant’s personal information, personal information

of investigative subjects or uninvolved third parties, law enforcement methods or

techniques, or other sensitive information,’ the disclosure of which might

‘jeopardize ongoing or future investigations.’” United States v. Pickard, Nos. 00-

40104-01, 00-40104-02-JTM, 2014 WL 789202, at *2 (D. Kan. Feb. 26, 2014)

(alterations in original) (citation omitted). Further, it expressed concern about the

deterrent effect of the routine disclosure of criminal files, which might discourage

informants or witnesses from cooperating with the government, and “would open

witnesses and law enforcement personnel named in those records to physical

4

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attacks, threats, harassment, or retaliation.” Id. (citation omitted). Finally, the

government argued that these interests strongly outweigh the public’s limited

interest in a specific criminal investigative file. 

The district court, however, granted in part Defendants’ motion to unseal

the file. It found that:

[W]hile the government has shown a strong and compelling

interest in the generalized confidentiality of criminal

investigative records, it has failed to make any specific showing

in this case that these interests cannot be vindicated by selective

redaction. . . .

Here, the government has not affirmatively demonstrated the

existence of any informants or confidential witness other than

Skinner. Neither has the government affirmatively represented

that Skinner’s DEA file (now apparently a decade old) would

imperil any actual ongoing criminal investigations.

Id. (citation omitted). The court imposed the following conditions on its grant of

relief:

[T]he government is authorized to selectively redact from the

materials produced (a) the identity or personal information of

informants other than Skinner; (b) the identity or personal

information of other witnesses or law enforcement officers, other

than those who testified at trial; (c) evidence which would

specifically reveal any heretofore unknown criminal investigatory

technique; or (d) evidence relating to any ongoing criminal

investigation. To the extent the government seeks redaction, it

shall produce to the court in camera both redacted and

unredacted copies of the file, together with an itemized

justification for each redaction. The defendant’s Motion to

Unseal is hereby granted as provided herein.

Id. (citation omitted).

5

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Shortly thereafter, the government filed a motion to clarify the district

court’s order. It asserted a good-faith belief that it was already in compliance

with the court’s order based on its prior submissions to the court. Specifically,

the government rested on its prior submission of (1) redacted copies of the file,

along with a Vaughn index, which had been submitted as part of the government’s

earlier memorandum regarding the sealed documents, see generally Vaughn v.

Rosen, 484 F.2d 820, 827–28 (D.C. Cir. 1973) (requiring the government to

establish “a system of itemizing and indexing that would correlate statements

made in the Government’s refusal justification with the actual portions of the

document” sought to be disclosed);2

 and (2) unredacted copies of the file that

were delivered to the court. The government further requested a clarification to

specifically bar Defendants’ counsel from disclosing the DEA records to

Defendants or anyone else. 

In response, the district court entered an order granting the government’s

motion and finding that the government was in compliance with its prior order. 

See Aplt. App. at 1228–29 (Mem. & Order, dated Mar. 21, 2014). In summary

2 More specifically, “[a] Vaughn index is a compilation prepared by

the government agency (or intervenor) listing each of the withheld documents and

explaining the asserted reason for its nondisclosure.” Anderson v. Dep’t of

Health & Human Servs., 907 F.2d 936, 940 n.3 (10th Cir. 1990). In this case, the

Vaughn index that the government submitted to the court consisted of the list of

documents and associated objections that it had produced in related FOIA

proceedings filed by Mr. Pickard in the United States District Court for the

Northern District of California. See Pickard v. Dep’t of Justice, No. C 06-00185

CRB, 2014 WL 1868841, at *1 (N.D. Cal. May 7, 2014).

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fashion, the court explained:

The government’s earlier Memorandum of Law references the

California Vaughn index, but does not explicitly state that it

advances the same redactions herein. The court takes the

government’s present motion as an adoption of those redactions,

and determines that the government is in compliance with the

court’s directive.

The government also requests that the court clarify its earlier

Order to specify that the disclosures rendered pursuant to the

Order are not to be further disseminated by counsel for the

defendant, William K. Rork, to any other person without specific

leave of court. This restriction is in keeping with prior

restrictions, and the court adopts the same limitation herein.

Id. (citation omitted).

Defendants, in turn, filed their own motion to clarify the court’s order. 

Defendants argued that the motion to unseal related only to the CI file that the

district court had sealed during their trial, as opposed to the more general agency

file on Mr. Skinner maintained by the DEA.3

 And they pointed out that the

Vaughn index that had been prepared in the context of the FOIA litigation in the

United States District Court for the Northern District of California did not

3 According to Defendants, the DEA’s agency file (as opposed to the

CI file sealed by the court) is the subject of the FOIA proceedings in California

and was never requested as part of this action. This distinction is relevant in part

because litigation in this case has proceeded on the assumption that the CI file

sealed by the court constitutes a judicial record. See Pickard, 733 F.3d at 1302

n.5 (“The Government assumes that the DEA file is a judicial record. And we

agree.”). Defendants contend that the common-law right of public access to

judicial records, and not FOIA, provides the controlling standards. And if there

are no judicial records at issue, Defendants concede that there is no common-law

right of access to agency files maintained elsewhere by the DEA.

7

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account for all the records contained in the sealed CI file.4

 More generally,

Defendants argued that the Vaughn index was insufficient, and claimed that the

government had made no effort to segregate non-exempt material in its disclosure. 

Finally, they requested a modification of the nondisclosure order to allow

Defendants themselves to access the CI file.

The district court granted in part and denied in part Defendants’ motion. 

See United States v. Pickard, Nos. 00-40104-01-JTM, 00-40104-02-JTM, 2014

WL 1356053 (D. Kan. Apr. 7, 2014). It first addressed the distinction between

the Skinner-related agency records maintained by the DEA and the CI file sealed

by the court. The court noted that it had reviewed the records, and observed that,

while the CI file and the Vaughn index did not relate to identical documents, “on

the whole the two files ‘significantly overlap’ each other.” Id. at *1 (alteration

omitted) (citation omitted). It characterized the Vaughn index as “precisely the

sort of careful separation and indexing” that the D.C. Circuit’s decision in

Vaughn authorized, and found that Defendants “have shown no basis for rejecting

the Vaughn index itself as a sufficient itemization of the government’s objections

to production.” Id. at *2.

The court then turned to consider the validity of the objections set forth in

4 Because the federal courts are not agencies for purposes of FOIA,

Defendants argued that the court has an obligation to redact its own judicial

records, potentially through the appointment of a special master, and cannot rely

on the government’s redactions in the form of a Vaughn index.

8

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the Vaughn index, and found “no reason to vary from its earlier determination that

the government has shown a compelling interest in the confidentiality of the DEA

file.” Id. In the district court’s view:

Even if no ongoing investigation exists, the government has a

strong interest in preventing the disclosure of the file itself,

which would have a dangerous negative effect on the ability to

secure cooperation by other confidential sources in the future. 

The court has recognized this importance in sealing the document

simultaneous with its reception. The defendants filed no

challenge to this seal until long afterwards.

The court further finds that the government appropriately

articulates strong and compelling rationales for withholding the

designated information, even if the ultimate result means that

much of the file remains under seal. A careful review of the

sealed DEA file confirms that it is the sort of information which

is typically subjected to the highest level of confidentiality, and

there is no meaningful basis for alternative or additional

redactions.

Id. (citations omitted).

Next, the court specifically addressed our previous observation that “[t]he

fact that some of the sealed information has already been made public suggests

that much of the information in the DEA records could be unsealed.” Id. at *3

(alteration in original) (quoting Pickard, 733 F.3d at 1305). It determined “that

the limited disclosure of some information from Skinner’s participation does not

justify the broad disclosure of the majority of the CI file.” Id. After discussing

two cases that we cited in support of this inference, Mann v. Boatright, 477 F.3d

1140 (10th Cir. 2007), and United States v. James, 663 F. Supp. 2d 1081 (W.D.

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Wash. 2009), it explained:

Neither Mann nor James involved raw files relating to

confidential informants, and the court agrees with the

government that it possesses a strong and compelling interest in

keeping confidential the information generated by confidential

informants. Accordingly, the governmental interest is far

stronger than the privacy interest in Mann and or the interest of

the sentenced defendant in James; in both cases the courts

respectively noted that the relevant documents (whether civil

complaint or plea agreement) are filed publicly as a matter of

course. James authorized the release of “boilerplate language,”

statements made in open court, and the fact of the defendant’s

cooperation with the government. Nevertheless, it explicitly

agreed to redact “the details of Ms. James’ cooperation.” [663

F. Supp. 2d at 1021] (emphasis added).

Pickard, 2014 WL 1356053, at *3.

Finally, the court set forth its view of the governmental interest implicated

by the potential disclosure here. It concluded:

The court finds the complete disclosure of the details of

Skinner’s cooperation would work substantial damage to the

government by creating a chilling effect on future cooperation. 

The government’s interest is extremely strong, and the fact that

some limited information from the CI file has been referenced

during the long post-conviction proceedings does not justify the

wholesale release of the entire file. Additional redactions beyond

those contained in the Vaughn index are unjustified in light of the

government’s interest. The court further finds that the relatively

few documents which are in the CI file but not in the Vaughn

index should remain sealed as well. In both cases, a broad

release of the information would be unjustified in light of the

governmental interest involved, and the government interest is

sufficient to overcome the presumption in favor of public access

to judicial records.

Given the highly confidential nature of the informant file, the

glancing and indirect nature of much of the “publication” cited

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by the defendants, and the inherent chilling effect of a release of

that information on future investigations, the court finds that

specific redactions beyond those identified in the Vaughn index

are insufficient to satisfy the government interest involved. 

Accordingly, the court finds the defendants’ Motion to Unseal

shall remain denied, except as provided herein.

Id. at *4 (citation omitted).

The court did, however, provide a limited exception to unseal five

documents—which had already been made public—that Defendants identified in

their motion to clarify.5

 Otherwise, the court denied Defendants’ request to allow

them individualized access to the CI file and, as noted, determined that

Defendants’ motion to unseal should remain denied. Defendants timely appealed.

II

We address the legal standards governing a trial court’s decision to seal

judicial records. Ultimately, we conclude that we cannot rule at this time on the

merits of the district court’s sealing decision; in light of the controlling legal

standards, the district court’s explanation of the reasons for its decision is

inadequate to support and facilitate meaningful appellate review. We remand for

the court to more fully explicate its reasoning, consistent with the principles

5 Specifically, these documents included (a) Mr. Skinner’s Criminal

Felony Docket for Tulsa County, Oklahoma District Court, July 31, 2006; (b) the

Pottawattamie County Kansas Court order dated August 21, 2000; (c) Mr.

Skinner’s Criminal Felony Docket for Tulsa County, Oklahoma District Court

dated March 24, 2004; (d) Mr. Skinner’s Eleven-point Risk Assessment; and (e)

Mr. Skinner’s Confidential Source Agreement Form, DEA form 473, dated

October 18, 2000. See Pickard, 2014 WL 1356053, at *4.

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discussed in this order and judgment. 

A

“We review for an abuse of discretion the district court’s decisions

regarding whether to seal or unseal documents.” Pickard, 733 F.3d at 1302; see

also Mann, 477 F.3d at 1149; Colony Ins. Co. v. Burke, 698 F.3d 1222, 1241 n.28

(10th Cir. 2012) (involving a decision to seal); Nat’l Org. for Marriage v. McKee,

649 F.3d 34, 70 (1st Cir. 2011) (addressing a decision to unseal). But we review

de novo the underlying legal principles that the district court applies in

considering a motion regarding sealing or unsealing. Pickard, 733 F.3d at 1302;

accord Ameziane v. Obama, 620 F.3d 1, 5 (D.C. Cir. 2010); United States v.

Wecht, 484 F.3d 194, 208 (3d Cir. 2007). “We have previously described abuse

of discretion as an arbitrary, capricious, whimsical, or manifestly unreasonable

judgment.” ClearOne Commc’ns, Inc. v. Bowers, 643 F.3d 735, 773 (10th Cir.

2011) (quoting Winnebago Tribe of Neb. v. Stovall, 341 F.3d 1202, 1205–06 (10th

Cir. 2003)). “Of course, applying incorrect legal principles is an abuse of

discretion.” Pickard, 733 F.3d at 1302. 

1

“A court has authority to seal documents before it, based upon the court’s

inherent supervisory authority over its own files and records.” Id. at 1300. 

However, “[c]ourts have long recognized a common-law right of access to

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judicial records.”6

 Mann, 477 F.3d at 1149; see Nixon v. Warner Commc’ns, Inc.,

435 U.S. 589, 597 (1978). “The right is an important aspect of the overriding

concern with preserving the integrity of the law enforcement and judicial

processes.” United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985). 

Nevertheless, the right of access is not absolute. See Colony Ins., 698 F.3d at

1241. The court, “in its discretion, may seal documents if the public’s right of

access is outweighed by competing interests.” Helm v. Kansas, 656 F.3d 1277,

1292 (10th Cir. 2011) (quoting Hickey, 767 F.2d at 708). 

“In exercising this discretion, [a court] weigh[s] the interests of the public,

which are presumptively paramount, against those advanced by the parties.” Id.

(quoting Crystal Grower’s Corp. v. Dobbins, 616 F.2d 458, 461 (10th Cir. 1980)). 

And, as we explained in the prior appeal, the presumption in favor of access is

particularly strong, as here, “where the district court used the sealed documents

‘to determine litigants’ substantive legal rights.’” Pickard, 733 F.3d at 1302

(quoting Colony Ins., 698 F.3d at 1242). As a result, “[t]he burden is on the party

seeking to restrict access to show ‘some significant interest that outweighs the

presumption.’” Colony Ins., 698 F.3d at 1241 (quoting Mann, 477 F.3d at 1149).

“Consistent with this presumption that judicial records should be open to

6 We previously determined that the CI file that the district court

sealed in this case constitutes a judicial record. See Pickard, 733 F.3d at 1302

n.5; see also United States v. El-Sayegh, 131 F.3d 158, 163 (D.C. Cir. 1997)

(“[W]hat makes a document a judicial record and subjects it to the common law

right of access is the role it plays in the adjudicatory process.”).

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the public, the party seeking to keep records sealed bears the burden of justifying

that secrecy, even where, as here, the district court already previously determined

that those documents should be sealed.” Pickard, 733 F.3d at 1302. Thus, in this

case, the government bears the burden of articulating an interest sufficient to

overcome the strong presumption in favor of public access to the sealed CI file.7

2

Just as the district court has an obligation to weigh the competing interests

of the parties and the public, we too are obliged to review the district court’s

exercise of its discretion. In a variety of different contexts, we have found

reversible error where courts have failed to provide a record of their decisional

process that was adequate to support and facilitate meaningful appellate review. 

See, e.g., United States v. Chavez-Calderon, 494 F.3d 1266, 1268 (10th Cir. 2007)

(“In order to facilitate appellate reasonableness review and to ensure that the

[appropriate] factors have informed a district court’s exercise of discretion, we

7 The government bears the burden of proof in both the common-lawaccess and the FOIA contexts, where it is the party resisting disclosure; however,

the questions that district courts resolve in the FOIA context ordinarily are

deemed issues of law—not of discretion, as in the common-law-access

setting—and therefore the court’s rulings are subject to the more searching de

novo standard of review. See, e.g., Trentadue v. Integrity Comm., 501 F.3d 1215,

1226 (10th Cir. 2007) (“The federal agency resisting disclosure bears the burden

of justifying withholding. Whether a FOIA exemption justifies withholding a

record is a question of law that we review de novo.” (citation omitted)); accord

Stewart v. U.S. Dep’t of Interior, 554 F.3d 1236, 1244 (10th Cir. 2009). We have

no need in this case to fully explore the relationship between these two bodies of

law, including the extent to which they intersect. 

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require district courts to give reasons for their sentences.”); OCI Wyo., L.P. v.

PacifiCorp, 479 F.3d 1199, 1204 (10th Cir. 2007) (“[W]e have also cautioned that

too little detail frustrates meaningful appellate review by requiring the parties and

this court to guess at why the district court reached its conclusion.”); United

States v. Roberts, 88 F.3d 872, 882 (10th Cir. 1996) (per curiam) (“Without any

reasoned elaboration by the district court we have no way of understanding the

basis of its decision . . . . As an appellate court, we are in no position to

speculate about the possible considerations which might have informed the

district court’s judgment.”), superseded by statute on other grounds as recognized

in United States v. Franklin, 785 F.3d 1365, 1368 (10th Cir. 2015); Olcott v. Del.

Flood Co., 76 F.3d 1538, 1559 (10th Cir. 1996) (“The district court’s summary

disposition of this issue renders it impossible for us to review the propriety of its

decision. . . . We have no informed basis for evaluating the propriety of the

district court’s action because in the end we are left guessing as to the court’s

purpose.”); Roberts v. Metro. Life Ins. Co., 808 F.2d 1387, 1390–91 (10th Cir.

1987) (“Where the trial court provides only conclusory findings, unsupported by

subsidiary findings or by an explication of the court’s reasoning with respect to

the relevant facts, a reviewing court simply is unable to determine whether or not

those findings are clearly erroneous.” (quoting Lyles v. United States, 759 F.2d

941, 944 (D.C. Cir. 1985) (per curiam))).

In this case, the district court compared the sealed CI file to the Vaughn

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index—consisting of a list of documents and associated objections that the

government advanced—and concluded that it was satisfied that the CI information

had been properly withheld. However, the record does not adequately reflect the

court’s balancing—with respect to particular documents or categories of

documents—of the specific interests of the public and the government (the party

opposing disclosure) relative to the factual circumstances of this case. Instead,

the court relied on the government’s general interests regarding confidentiality, a

potential “chilling effect,” and the need for law enforcement to secure the

cooperation of other confidential sources in the future. 

Though these matters are unquestionably, in principle, legitimate

governmental interests, they are likely to be present to some degree in virtually

every case where a member of the public seeks access to law-enforcement

informant files. Therefore, lest the common-law presumption of access be

rendered a dead letter as to this class of cases, courts cannot justify denying

disclosure by endorsing such generalized governmental interests. They must

analyze the government’s interests in the context of the specific case—with

respect to particular documents or categories of documents—and explicitly

undergird their conclusions with fact-specific analysis. Absent a particularized

analysis of this type, a district court has no sound legal basis for ruling on the

sealing question. Likewise, without a district court expressly conducting such an

analysis on the record, we cannot engage in meaningful appellate review of its

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sealing decision. Cf. Wiener v. FBI, 943 F.2d 972, 987–88 (9th Cir. 1991)

(“‘Disclosure of the factual and legal basis for the trial court’s decision is

especially compelling in FOIA cases.’ . . . ‘The reviewing court should not be

required to speculate on the precise relationship between each exemption claim

and the contents of the specific document[s].’” (alteration in original) (quoting

Van Bourg, Allen, Weinberg & Roger v. NLRB (Van Bourg I), 656 F.2d 1356,

1357, 1358 (9th Cir. 1981) (per curiam))). And that is regrettably the state of

play here. In ruling that the government had offered enough to prevail on the

sealing issue, the court provided no particularized explanation that was rooted in

the specific documents and facts of this case. 

Furthermore, we cannot cobble together the elements of such a

particularized explanation by reference to the Vaughn index that the district court

accepted as the foundation for its ruling. That is because the index does a very

poor job of revealing in a particularized fashion the government’s interests

regarding the disclosure of specific documents or categories of documents, and, in

addition, does not shed meaningful light on the question that we gave high

salience in our earlier Pickard decision—that is, it does not meaningfully convey

the government’s position regarding what documents have “already been made

public,” which would “suggest[] that much of the information in the DEA records

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could be unsealed.” 733 F.3d at 1305.8

 

Notably, in the FOIA litigation in the Northern District of California, the

district court rejected as inadequate the exact Vaughn index that the district court

relied on in this case. It characterized the index as “conclusory and circular” and

“supremely unhelpful.” Pickard, 2014 WL 1868841, at *1, *4. Continuing its

assessment of the index, the court stated, “[I]t provides neither the Court nor [Mr.

Pickard] with any useful information about the content of the documents or how

the claimed exemptions apply.” Id. at *4. As a result, “[i]f [Mr. Pickard] or the

Court wishes to do anything with such representations other than unquestioningly

accept them, there is no way to do so.” Id. In light of what the court perceived as

the Vaughn index’s gross inadequacy, it ordered the government to submit an

adequate version. We agree with the California district court’s disapproving

8 As noted, the government submitted here a Vaughn index that it had

initially prepared in connection with FOIA litigation involving Mr. Pickard in the

Northern District of California. We recognize that at issue in both the FOIA and

common-law-access contexts is the public’s right of access to materials that have

been shielded from disclosure. We do not question, as a general matter, that

under certain circumstances, the government may prevail in carrying its burden in

the common-law-access context by submitting a Vaughn index (as well as perhaps

a related declaration). However, in this case, the government’s Vaughn index was

woefully inadequate to shed light on the variables relevant to the public-access

question. Moreover, the utility and responsiveness of the Vaughn index certainly

was not bolstered by the fact that the universe of Skinner-related documents

contemplated by the index was not precisely the same as the CI file. 

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assessment of the inadequacies of the Vaughn index. Consequently, we could not

successfully use it to fill the gaps in the district court’s generalized reasoning

here. 

Furthermore, though the CI file is part of the appellate record, we decline

to review the documents therein and conjure up particularized governmental

interests and concerns that might justify nondisclosure of them. Such an exercise

would be:

(1) patently speculative and conjectural, Anderson v. Dep’t of

Health & Human Servs., 907 F.2d 936, 944 (10th Cir. 1990)

(“Neither the district court’s ruling from the bench nor the

subsequent written order make clear which documents the court

believed were exempt as ‘trade secrets,’ and which documents

were exempt on other grounds. Any attempt on our part to

determine which of defendants’ seven proposed classifications of

the enormous number of documents at issue were adopted by the

district court as trade secrets would be sheer speculation.”); 

(2) logically at odds with the presumption in favor of unsealing

judicial records, which requires the party opposing unsealing

(i.e., the government) “to show ‘some significant interest that

outweighs the presumption,’” Colony Ins., 698 F.3d at 1241

(emphasis added) (quoting Mann, 477 F.3d at 1149); and 

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(3) at the very least, an inapt role for an appellate tribunal,

9 see,

e.g., New England Health Care Emps. Pension Fund v. Woodruff,

512 F.3d 1283, 1290–91 (10th Cir. 2008) (“We prefer to assess

the justification [for a bar order] in the first instance on the basis

of concrete facts found by the district court, and with the

assistance of the district court’s full consideration and discussion

of all of the relevant facts of the instant case and a full discussion

of the relevant persuasive authorities and the underlying reasons

and policies justifying whatever order the district court

ultimately approves.” (alteration in original) (quoting AAL High

Yield Bond Fund v. Deloitte & Touche LLP, 361 F.3d 1305, 1312

(11th Cir. 2004))); see also Davis v. United States, 192 F.3d 951,

961 (10th Cir. 1999) (“The district court’s memorandum order

neither states a set of facts relevant to the indispensability

analysis nor weighs the factors argued by the parties. This court

9 Relatedly, it would be particularly imprudent to undertake such an

initial analysis where our standard of review is abuse of discretion because this

standard allows for a range of reasonable outcomes. Cf. United States v. Mumma,

509 F.3d 1239, 1245 (10th Cir. 2007) (“[A]s we have previously explained, a

range of reasonable sentences may exist in any given case. The reasonableness of

one sentence does not, therefore, necessarily render a different sentence

unreasonable by comparison.” (citation omitted)); United States v. AngelGuzman, 506 F.3d 1007, 1020 (10th Cir. 2007) (“A decision upholding a

sentencing court’s discretion to sentence below the Guidelines is not precedent

for holding that another sentencing court abuses its discretion when it declines to

do so.”). 

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should not and thus will not perform the fact-finding function

reserved for the district courts.”). 

 In sum, we conclude that the district court’s generalized analysis of the

sealing question does not provide us with an adequate foundation for appellate

review, and we decline to undertake in the first instance a sealing analysis to

resolve the question. Accordingly, we are constrained to vacate the district

court’s order and remand for further proceedings—notably, for a fuller exposition

of the court’s reasoning. 

B

As noted, on remand, the district court must analyze the government’s

interests in the context of this specific case—with respect to particular documents

or categories of documents in the CI file—and explicitly rest its sealing

conclusions on that fact-specific analysis. Given the current state of the record,

the court will encounter—at the very least—significant hurdles in accomplishing

this task. As noted, the Vaughn index in the record—which ostensibly embodies

the government’s primary statement of interests—is woefully inadequate. On

remand, the government should be given an opportunity to supplement its

showing regarding sealing or unsealing the documents in the CI file. As we noted

in an analogous context in Anderson, 

The district court is entitled to considerably more assistance 

. . . than it received in this case. The burden of adequately

describing the documents and of defining any narrowly-drawn

categories that may be used to deal with similar documents as a

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group should normally be placed in the first instance on the

agency or other party claiming protection for the documents

requested. The district court’s task is essentially one of review,

but neither it nor the appellate court can adequately fulfill this

function without more particularized descriptions than those that

were provided here.

Anderson, 907 F.2d at 944 n.10.

If the government elects to supplement its showing by providing a new

Vaughn index (with or without an explanatory sworn declaration) it would be

well-advised to heed the counsel provided by the California district court when it

rejected the Vaughn index currently before us:

In W[ie]ner, [943 F.2d] at 984, the Ninth Circuit found

insufficient the Vaughn Index the FBI prepared in response to a

FOIA request about John Lennon, and explained what should

have been done as to a particular document:

Without violating the privacy interests of the informant

or the third party, the FBI could have stated that HQ-8

recites information provided by a third party to an FBI

informant detailing the third party’s knowledge of

several activists and protest activities planned at the

1972 Republican National Convention, discussing the

possibility that John Lennon would organize a series of

concerts to raise money to finance the activity, and

describing rivalries and jealousies within activist

organizations.

Id. at 984. Boilerplate explanations for withholding are

improper, and efforts must be “made to tailor the

explanation to the specific document withheld.” Id. at

978–79.

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Pickard, 2014 WL 1868841, at *4–5 (emphasis added).10 

In this regard, we are permitted to take judicial notice of the records of

other courts. See, e.g., United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th

Cir. 2007) (“Although we are not obliged to do so, we may exercise our discretion

to take judicial notice of publicly-filed records in our court and certain other

courts concerning matters that bear directly upon the disposition of the case at

hand.”); see also St. Louis Baptist Temple v. Fed. Deposit Ins. Corp., 605 F.2d

1169, 1172 (10th Cir. 1979) (“[I]t has been held that federal courts, in appropriate

circumstances, may take notice of proceedings in other courts, both within and

without the federal judicial system, if those proceedings have a direct relation to

10 In this same vein, the government should be alert to some of the

Wiener court’s more pointed criticism of the Vaughn index:

 The index fails to tie the FBI’s general concern about disclosure

of confidential sources to the facts of this case. The index does

not describe any particular withheld document, identify the kind

of information found in that document that would expose the

confidential sources, or describe the injury to national security

that would follow from the disclosure of the confidential source

of the particular document. The FBI must have made such an

analysis in concluding that disclosure of some informants or

classes of informants would damage national security and

disclosure of others would not. Yet none of the information and

analysis necessarily considered is made available to Wiener or

the court. The index simply relies on general assertions that

disclosure of certain categories of facts may result in disclosure

of the source and disclosure of the source may lead to a variety

of consequences detrimental to national security.

Wiener, 943 F.2d at 981 (footnotes omitted). 

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matters at issue.”). And, having elected to do so, we are aware that (after one

more failed attempt), the government was able to produce a Vaughn index in the

California FOIA litigation that satisfied the district court’s specificity concerns;

notably, the index directly addressed a question similar to the one that we gave

prominence in Pickard—viz., what documents had already been officially released

in the public domain. See Pickard v. Dep’t of Justice, No. 06-cv-00185-CRB, slip

op. at 3 (N.D. Cal. Aug. 27, 2015) (“These descriptions are sufficient to inform

Pickard of why a particular document is exempt from disclosure and afford him

an opportunity to advocate for its release. . . . Moreover, the government

responded to [the magistrate’s] request that it explain which documents have been

released to the public.” (citations omitted)); see also Pickard v. Dep’t of Justice,

No. 06-cv-00185-CRB, 2015 WL 926183, at *1 (N.D. Cal. Feb. 19, 2015)

(stating, in rejecting the second Vaughn index, “After reviewing the most recent

Vaughn index and the responsive documents, this Court finds that the

index—even when viewed in combination with the government’s supporting

declaration—fails to sufficiently describe the withheld documents in adequate

detail so as to allow Pickard to challenge the government’s claimed

exemptions.”). The government would be wise to demonstrate a similar

willingness here to offer a particularized justification for its efforts to keep the CI

file documents sealed.

At bottom, the government bears the burden of demonstrating “some

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significant interest that outweighs the presumption” in favor of public access. 

Colony Ins., 698 F.3d at 1241 (quoting Mann, 477 F.3d at 1149). On remand, the

district court must assess the record with an eye toward providing a particularized

analysis—one that is suitable for possible appellate review—of the government’s

interests in sealing the documents in the CI file. In that analysis, the court may

reference the explanations that the government provides—through a new Vaughn

index or otherwise—and also, with appropriate care and circumspection, point to

individual documents or categories of documents in the CI file itself. The court

should then rule on the sealing questions as they relate to the documents in the

file. See Wiener, 943 F.2d at 988 (“After receiving an adequate Vaughn index

and conducting any additional proceedings the district court deems necessary on

remand, the court must ‘state in reasonable detail the reasons for its decision as to

each document in dispute.’” (quoting Van Bourg I, 656 F.2d at 1358)). 

Our intention is not to choreograph every step of the district court’s

decision-making process or establish unnecessary boundaries on its exercise of

discretion. However, in weighing the interests of the parties and the public, we

underscore that the asserted interests for sealing cannot be generic interests that

would apply with equal force to every case. The government must articulate

specific interests that apply in the context of this case, and the district court must

balance those interests against the public’s interest in access.

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C

Finally, Defendants have requested that (1) a copy of the CI file that was

transmitted to our court be provided to Defendants’ counsel, subject to a nondissemination order, and (2) the “Risk Assessment” portion of the file, which the

district court unsealed, be filed publicly and placed on the docket for access by

the parties. In light of our decision to remand this action for further substantive

analysis, we leave the resolution of these requests in the first instance to the

discretion of the district court. 

III

For the foregoing reasons, we VACATE the district court’s order and

REMAND for further proceedings.

Entered for the Court

JEROME A. HOLMES

Circuit Judge

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