Court: Court of Appeals for the Second Circuit; September 3, 1996; Federal Appellate Court
Dennis Pappas appeals a March 5, 1996, order from the Eastern District of New York, which imposes restrictions on the disclosure of classified information in his ongoing criminal prosecution. The appeal addresses the Classified Information Procedures Act (CIPA), with the court determining that part of the order is not appealable, while the portion prohibiting the disclosure of previously acquired information is appealable. The court concludes that CIPA does not govern this prior information, although its disclosure could still be restricted under contract law principles.
The background details indicate that Pappas, along with his wife, is involved in a criminal case where he previously claimed his government-related activities warranted favorable treatment. Following his intention to disclose classified information, the government obtained a protective order on January 4, 1996, to maintain confidentiality and allow his counsel access to classified materials under security clearances. Subsequently, media reports emerged about Pappas's activities, prompting the March 5 order, which mandates confidentiality for all classified materials received by Pappas or his counsel, regardless of when they were obtained, and adjusts the sealing status of certain documents related to the case.
Pappas's appeal contests a March 5 protective order that restricts his ability to publicly disclose classified information, specifically through 'comment, confirmation, or denial,' even regarding information already revealed in a local newspaper. He also disputes the order's requirement to seal certain documents. The Government argues that the order is not appealable as it lacks finality under 28 U.S.C. § 1291 and does not qualify as an injunction under 28 U.S.C. § 1292(a)(1) since CIPA allows only the Government to appeal the denial of a protective order. Pappas counters by citing precedents where similar protective orders were subject to appeal, asserting that the order imposes significant restrictions beyond typical discovery orders. The court notes that while most protective orders regarding litigation materials are not appealable, the March 5 order’s prohibition on Pappas disclosing pre-litigation classified information may warrant appeal due to its extensive limitations. The court concludes that CIPA does not restrict appellate jurisdiction but rather provides the Government with additional appeal rights that do not extend to defendants. The key issue for appeal is whether the protective order can validly prevent Pappas from disclosing classified information received prior to the litigation, with the analysis focusing on CIPA as the basis for the order.
CIPA (Classified Information Procedures Act) aims to balance a defendant's right to access exculpatory material and the government's interest in protecting classified information. It addresses the issue of "graymail," where defendants threaten to disclose classified information to compel the government to drop charges. CIPA establishes procedures to mitigate this risk, including requiring defendants to notify the government and the court before disclosing classified information during trial or pretrial proceedings. The government can then seek a pretrial ruling on the admissibility of such information.
Key provisions include:
- Section 5 mandates notice from the defendant to the government before any disclosure.
- Section 6(a) allows the government to request a pretrial determination on the relevance and admissibility of classified information.
- Section 6(c) enables the government to avoid disclosure through admission of relevant facts or by providing a summary of the classified information.
- If the court denies this request, Section 6(e)(1) prohibits the defendant from disclosing the information, and Section 6(e)(2) requires dismissal of charges or alternative remedies if disclosure is prohibited.
- Section 3 allows the government to obtain a protective order against disclosure of classified information shared with the defendant.
CIPA outlines three scenarios where disclosure may be restricted: while the government seeks a pretrial ruling, following a court ruling prohibiting disclosure, and under a protective order.
The text outlines the limitations of disclosure prohibitions under the Classified Information Procedures Act (CIPA) concerning classified information in criminal cases. Specifically, the prohibition applies only to classified information disclosed to a defendant during a criminal case. Since the information in question was not disclosed to Pappas in such a context, the prohibition does not apply to him. However, it is suggested that a protective order may restrict the defendant from disclosing classified information acquired previously, but only in relation to the trial, not outside of it.
The legislative history clarifies that while a protective order can restrict previously obtained classified information during the trial, it does not extend to outside disclosures. The Senate Report emphasizes that a section 3 protective order is limited to trial contexts, aligning with the understanding that federal criminal statutes govern disclosures outside the trial. The House Report reinforces that provisions regarding prohibitions on disclosure do not constitute prior restraint and maintain the integrity of prior restraint law, highlighting that the trial court has broad discretion in regulating disclosures obtained through court processes. In contrast, the court's authority diminishes for information possessed by the defendant prior to trial, allowing regulation only within the trial setting. The House Report also notes that subsequent prohibitions following a rejected government request for alternative procedures are similarly confined to trial contexts concerning classified information not obtained via court processes.
Section 109(a) of H.R. 4736, now part of the Classified Information Procedures Act (CIPA), mandates that courts issue protective orders to prevent unauthorized disclosure of classified information provided to defendants by the government. This provision formalizes the existing practice of federal courts to issue such orders, particularly during discovery. CIPA prohibits defendants from disclosing classified information received from the government during pretrial discovery or the trial process, including public disclosures. However, if the defendant obtained the information prior to prosecution, such disclosures cannot be prohibited outside of trial contexts. In the case of Pappas, the District Court's order preventing public disclosure was deemed unsupported by CIPA because Pappas acquired the information before the trial, indicating that protections against such disclosures must derive from other legal sources.
Additionally, while CIPA may not enforce public disclosure prohibitions regarding pre-acquired information, such prohibitions could be upheld under federal contract law principles, as contracts involving national security are governed by federal law. Both parties acknowledge a contractual relationship, asserting that Pappas was instructed not to disclose his activities with the government, which the government claims was a condition of their dealings. The specifics of the agreement remain disputed, but it is suggested that obligations regarding confidentiality could arise from both employment and discussions about potential employment. The government retains the right to enforce its agreements for maintaining the confidentiality of classified information.
Pappas argues that contractual restraints should not prevent him from disclosing information he claims is already public. While generally, publicly available information is exempt from such restraints, this does not apply to Pappas for two reasons: he asserts he is responsible for the information's public status, and self-disclosure does not absolve him of contractual obligations, especially where government interests might be jeopardized by further disclosures. The District Court did not address the government's claim regarding disclosure restrictions, necessitating a remand to assess the contractual limitations on Pappas and whether these would justify a disclosure prohibition outside of trial. The existing District Court prohibition on disclosure remains in effect during remand, supported by Pappas's affidavit, which aligns with the government's claims. The appeal is dismissed concerning restrictions on information exchanged in ongoing litigation, but is remanded for further review regarding previously acquired information. The document also references legislative context and committee discussions relevant to the case, noting that the District Court must determine the appropriateness of a prohibition based on contractual claims within the ongoing criminal case or if a civil suit is required.
