We confront the issue here of whether and on what grounds a district court judge may make available to the public papers seized from a third party nondefendant, subsequently introduced under seal only in a pretrial suppression hearing and only for the purpose of showing that the search and seizure were unlawful. As far as we have been able to determine, there is no precedent on the issue. The seized documents were made available to the public on the eve of the defendants' convictions under a disposition agreement and at a time when the trial judge's ruling denying suppression of the seized materials was certain to be appealed. Three reasons were given for making these documents publicly available: "there is a right in the public to know what occurs before the courts;" "there is a public interest in access to court records;" and "sunshine is the best disinfectant."1 When the unsealing decision was announced, the third party nondefendant sought but was denied leave to intervene to assert its interest in retaining the documents under seal. It then moved the court for immediate return of the documents and for an order temporarily enjoining public access pending their return. These motions were also denied.

After studying the matter in depth, we have determined to stay the unsealing orders appealed in No. 79-2312, to vacate the orders denying intervention and temporary injunctive relief appealed in Nos. 79-2313 and 79-2324,2 and to remand to the trial court for supplemental proceedings and transmission to this court of a more particularized rationale, under guidelines discussed below. We retain jurisdiction over the matter and order all documents at issue here sealed pending our decision following remand.3

Owing to the litigiousness of the parties the full procedural background of these appeals is quite complex, but the essential facts are simply stated. Close to three years ago the government seized approximately 50,000 documents4 from two Los Angeles sites of the Church of Scientology of California. A motion made by the Church to return the documents was dismissed by a federal district court in California,5 although various actions of the parties and the courts in California restricted public access to the documents held by or subject to the proceedings of that court.6

More than two years after the seizures a District of Columbia grand jury returned indictments against eleven officials or employees of the Church. Seeking to suppress the seized documents as the fruits of an illegally executed "general" search, the nine defendants present before the court7 urged Judge Richey, to whom the criminal case was assigned, to examine a complete set of the documents seized. Because they were needed for this purpose, copies of all documents held by the district court in California were transferred to the custody of the district court here. From the discussions preceding transfer it is clear that everyone concerned was under the impression that all documents to be transferred would be held under seal by the clerk of this court.8 No separate written sealing order was entered, but before the transfer took place, Judge Richey entered repeated oral sealing orders,9 although usually with the caveat that he retained the right to "unseal" the documents at a later time.10

The legal consequence of the position taken by the defendants in pressing the full set of documents upon the trial judge during the suppression hearing is that the documents became part of the "record" of the case.11 We think this conclusion is consist ent with the contemporaneous understanding of the parties and the district court.12 However, only a small number of the documents were referred to individually by nature or content by either witnesses in the suppression hearing or by the trial judge in his ultimate decision on the motion.13 It is in fact unclear whether and to what extent the trial judge examined the documents before he denied defendants' suppression motion.14

Shortly after entry of the decision upholding the search, the government and the defendants negotiated a disposition of charges and a stipulated record consisting of approximately 200 documents. As part of the negotiations the government agreed not to disseminate publicly any documents seized which were not part of the stipulated record. The trial court enforced the negotiated disposition;15 the case was tried to the bench on the stipulated record and guilty verdicts were returned.16

After the disposition agreement was enforced but one day before the guilty verdicts were entered, the trial judge issued an order making publicly available all documents seized except those that the government had earlier "returned" to the Church as unnecessary to the prosecution,17 if they were not also used by the defendants in the examination of witnesses at the suppression hearing.18 When this order was filed, the Church sought to intervene in the criminal case to "protect the constitutional rights of the Church and its members in the privacy of their papers;"19 it also filed a motion captioned as a separate civil proceeding, seeking immediate return of the seized documents and an order temporarily restraining the court clerk from disseminating or disclosing the documents to anyone pending a decision on the motion for return.20 The individual defendants moved the court for reconsideration. These motions were denied. Applications by the Church and the individual defendants for stay of the unsealing order and a petition by the Church for mandamus relief were denied by motions panels of this court. Rehearing en banc of the stay applications was also denied, no judge having called for a vote on the application for rehearing. Finally Chief Justice Burger denied applications for stay submitted to him as Circuit Justice.

Before us now are the consolidated appeals from the orders entered in the district court. We do not understand either the Church or the individual defendants seriously to contest the "unsealing" of documents which are part of the stipulated record or which were used by defendants in the examination of witnesses at the suppression hearing or which were referred to by the trial judge in his opinion on the motion to suppress.21 At issue, then, is the substantive and procedural propriety of the judge's orders with respect to the balance of the documents unsealed.22

II. THE PROCEDURAL RIGHTS OF THE CHURCH AND THE INDIVIDUAL DEFENDANTS

At the outset we are called upon to determine the appealability of the orders entered in the district court. In our judgment a determination of the orders' appealability turns on a proper understanding of the interests asserted in the district court and on the relationship of these interests to the criminal investigation and prosecution to which they are undeniably connected. We thus turn our attention first to an examination of the nature of the interests asserted in the district court, the procedures attempted to be employed for the assertion of those interests and the procedures which could have been employed, given our assessment of the nature of the interests asserted and their relationship to the criminal case. We then return to the question of the appealability of the orders entered in the district court.

B. Procedural Rights of the Church in the District Court

We think the kinds of interests raised by the Church in its effort to protect the confidentiality of documents seized from its premises are sufficiently strong to mandate the identification of some procedural mechanism by which those interests can be presented contemporaneously to the court that controls public access to the records of which the documents became a part. Our evaluation of the strength of the interests sought to be asserted by the Church derives from an analysis of the Church's asserted property rights in the seized documents and from our recognition of the intrusion by government officials upon the Church's privacy which a compulsory search of Church premises may represent and the compounding of this intrusion that is worked by public access to the contents of the documents seized.

Although we decline the Church's invitation expressly to ground the Church's protectible interests in the Constitution's provisions, we find the kinds of interests asserted to have some constitutional footing, both cognate to and supportive of, constitutional rights.23 This understanding has framed our consideration of both the procedural and the substantive questions raised in these appeals and has contributed substantially to the conclusions we have reached.

Prior decisions of this court have made clear that the party from whom materials are seized in the course of a criminal investigation retains a protectible property interest in the seized materials. "(T)he Government's right to seize and retain certain evidence for use at trial," we have said, " 'does not in itself entitle the State to its retention' after trial, . . . ."24 Rather, as we have declared, "it is fundamental to the integrity of the criminal justice process that property involved in the proceeding, against which no Government claim lies, be returned promptly to its rightful owner."25 Lawful seizure of the property, of itself, may affect the timing of the return,26 but never the owner's right to eventual return. "(T)he district court, once its need for the property has terminated, has both the jurisdiction and the duty to return the . . . property . . . regardless and independently of the validity or invalidity of the underlying search and seizure."27

Both in the district court here and in the Central District of California the Church has asserted entitlement to lawful possession of the documents seized and a corresponding right to their return.28 In the court below this claim was coupled with a request for injunctive relief retaining the documents under seal pending their return. Otherwise, the Church argued, "the ultimate granting of (the) motion (for return of property) will be a meaningless achievement."29 The Church continued, "The publication of the documents invades the right of privacy of the petitioner and its members, violates the petitioner's Fourth Amendment rights, and chills the rights of and free exercise of religion. This damage cannot be undone by the eventual return to petitioner of its property."30

The privacy interests asserted by the Church in its application for injunctive relief pending the documents' return were also asserted in its motion to intervene in the criminal case. In those papers the Church relied not only on the property interests which it retained in the seized documents but on the violation of its right of privacy which release of the seized documents would effect.31 Although adverting to the confidential nature of the information contained in certain of the seized documents, the Church asserted a privacy interest not in particular documents but in the documents as a whole,32 relying, inter alia, on the fact that the materials seized were documents, on the circumstances under which they were seized, on the measures theretofore taken by the parties to preserve the documents' confidentiality, and on the fact that the defendants were certain to appeal their criminal convictions on the grounds of the lawfulness of the search and seizure.33

That the fourth amendment which is now recognized to protect legitimate expectations of privacy34 can be invoked by corporations to suppress the fruits of a search of corporate premises35 demonstrates an understanding that a compulsory search of even corporate premises may constitute an intrusion upon privacy.36 Furthermore, the Supreme Court has recognized an obligation on the part of the courts to take some measures to protect even a suspected criminal's privacy. The special difficulties of document searches in this connection have been noted. In Andresen v. Maryland,37 the Court stated:

We recognize that there are grave dangers inherent in executing a warrant authorizing a search and seizure of a person's papers that are not necessarily present in executing a warrant to search for physical objects whose relevance is more easily ascertainable. In searches for papers, it is certain that some innocuous documents will be examined, at least cursorily, in order to determine whether they are, in fact, among those papers authorized to be seized. Similar dangers, of course, are present in executing a warrant for the "seizure" of telephone conversations. In both kinds of searches, responsible officials, including judicial officials, must take care to assure that they are conducted in a manner that minimizes unwarranted intrusions upon privacy.

However, the value assigned by our society to protection against governmental invasions of privacy is not measured solely by the fourth amendment's exclusionary rule. The fourteenth amendment's protection against arbitrary or unjustifiable state deprivations of personal liberty also prevents encroachment upon a constitutionally recognized sphere of personal privacy.38 The fifth amendment's protection of liberty from federal intrusion upon this sphere can be no less comprehensive.39

Minimizing the initial intrusiveness of necessary governmental activity is one means of serving fundamental privacy interests, but controlling broadside disclosure of materials or information obtained by intrusive means is another.40 For example, on at least two recent occasions Congress has recognized that the dissemination of information compounds whatever infringement of privacy occurs when materials or information are obtained through compulsory means.41 The need for both kinds of protection has been perceived by state legislatures as well as by the Congress.42

Finally, although the scope of the privacy interests protected by the Constitution differ from the privacy interests protectible under state law,43 the concept of a protectible right of privacy has found widespread acceptance in the state law of this country,44 and has been embraced both in the District of Columbia45 and in California.46 ] Whether and to what extent the privacy interests protected by state law may be asserted by corporate bodies is still unsettled.47 However, we think one cannot draw a bright line at the corporate structure. The public attributes of corporations may indeed reduce pro tanto the reasonability of their expectation of privacy,48 but the nature and purposes of the corporate entity and the nature of the interest sought to be protected will determine the question whether under given facts the corporation per se has a protectible privacy interest.49 Moreover at least certain types of organizations corporate or non-corporate should be able to assert in good faith the privacy interests of their members.50 Finally, whether acting for itself or on behalf of its members, surely the privacy interests of a "church" must be assessed somewhat differently from the privacy interests of other sorts of "corporations."51

Because state law privacy rights are seldom litigated,52 their contours remain unclear and application of these still-evolving concepts to the claims here stated cannot be determined by reference to already decided cases. However, in our judgment the combination of property and privacy interests asserted were significant enough to warrant an opportunity for the Church to state its interests in the only forum where meaningful relief could expeditiously have been had53 and within whose supervisory discretion a decision to foreclose public access resides.54

2. Procedural Mechanisms for the Church's Assertion of Interest

a. Ancillary Jurisdiction

Our decisions make plain that a federal trial court has ancillary jurisdiction to hear and determine claims closely related to and arising out of the criminal proceedings brought before it.55 We think this concept of ancillary jurisdiction is flexible enough to accommodate claims relating to seized property, even when made by strangers to the criminal case.56 We thus conclude that the trial court had jurisdiction to hear the claims made. However, this conclusion does not imply the proper method by which the claim should be presented, and to that question we turn below.

b. Analysis of the Procedures Employed and Available

The means by which third parties have sought to assert their interests in criminal cases have been manifold.57 Indeed, the Church here chose to employ three of the mechanisms which have been used, with varying success, by other parties in other cases.58 It first sought to intervene in the criminal case, it then brought a motion for return of property, accompanied by an application for an order temporarily restraining public access to the documents at issue. Finally, it petitioned this court for a writ of mandamus directing the district court, inter alia, "to refrain from unsealing for public inspection"59 the documents at issue.

Of these methods we think the last employed was neither appropriate nor adequate to the task. It is the trial court and not this court that should engage in the initial consideration of the interests at stake, especially where, as here, the matter is urgent and largely dependent on an extensive record with which the trial judge is intimately familiar.60 Even assuming mandamus relief is available to non-parties in a criminal proceeding,61 we think the inevitable delay in seeking a writ and the narrow circumstances under which it will be granted62 render it inadequate to redress the type of injury here alleged and mandate the identification of some other means by which a non-party's interest may timely be presented to the district court whose actions are alleged to affect that interest.

Of the two other methods by which the Church attempted to assert its interests, we think the motion for return of property and the accompanying application for temporary injunctive relief most closely approximated a proper means by which the trial court's ancillary jurisdiction could have been invoked by the Church to present its claims to retain the documents under seal.63 In our view the Church could have proceeded by simple motion, served on the parties in the criminal case, under the caption of that case.64 We think such a motion would have served the Church's interests adequately and we treat the Church's efforts in the district court as having commenced such a proceeding.65

It has long been recognized that a summary proceeding initiated simply by motion to the court of trial is ordinarily suitable for the purpose of asserting an interest in the ultimate disposition of property seized in a criminal proceeding.66 We now hold that it is also appropriate for the purpose of the presumptive owner's assertion of interest in maintaining the confidentiality of documents so seized.

The availability of this ancillary, summary proceeding and our treatment of the Church's efforts as having commenced such a proceeding make it unnecessary either to decide the procedural propriety of the methods in fact employed by the Church in its efforts in the district court to retain the documents under seal, or to address the question whether one may ever intervene in a criminal case.67 Furthermore, because we think the Church was in fact heard on the merits in its efforts to retain the seized documents under seal,68 and because the district court's rationale for denying relief, insofar as it can be ascertained on this record, turned at least in part on the merits of the interests asserted,69 we treat the orders appealed by the Church as having reached the merits and will consider the remainder of the issues raised by those appeals accordingly.

C. Procedural Rights of the Individual Defendants

The individual defendants, though on different grounds, also protested public access to the seized documents and, with one minor exception, their claims, like the Church's, fell within the trial court's ancillary jurisdiction in criminal cases, as we interpret that concept.70 This is because the claims, though closely related to the criminal proceedings, were separable from them; their determination did not require the district court and will not require us to decide questions inextricably intertwined with the propriety of the criminal conviction. This conclusion reflects our assessment of the separability from the criminal proceeding of the claims raised on their face; but it also inevitably reflects our judgment on the merits that the interests asserted can and should be evaluated independently of the defendants' motion to suppress the fruits of the search of Church premises.

The one claim made that cannot be divorced from the criminal proceedings themselves was that release of the documents violated the negotiated plea disposition.71 We do not consider this claim to fall within the trial court's ancillary criminal jurisdiction. Accordingly, we do not address it, but leave it for consideration on appeal from the criminal conviction if the defendants wish to raise it at that time.

A brief summary of the remaining interests asserted by the individual defendants will demonstrate their ancillary nature. The defendants argued: that publication would vitiate the benefits of possible reversal of their convictions on appeal; would interfere with the proceedings commenced and orders entered in the federal courts in California; would prejudice fair trial rights in other criminal proceedings; and would violate the privacy rights of individuals mentioned or discussed in the seized documents.72 None of these claims is inextricably bound up in an assessment of the validity of the judgment of conviction. Even the "fair trial" rights assertedly jeopardized by public access to the documents at issue presented an ancillary question. This is because the defendants did not seek to protect from unfair publicity the proceedings then in being but rather any subsequent proceedings in which they or other indicted individuals might be defendants.

The "ancillary" nature of the interests asserted by both the Church and the individual defendants and the practical finality of the contested orders determines the question of their appealability.73 The analogy to the appealable "collateral order" doctrine of Cohen v. Beneficial Industrial Loan Corp.74 is strong and persuasive. Like the orders which are the subject of that doctrine the orders entered here are "separable from, and collateral to"75 the rights of the parties to the criminal proceedings. Furthermore, because public access to the documents at issue will to some extent irreparably damage the interests asserted, an order which has the effect of permitting such an invasion, as a practical matter, "finally determine(s)" the claim.76 Our consideration of the issues raised will neither halt nor disturb the orderly progress of the criminal proceeding.77 We are thus satisfied that these issues are properly before us and turn to consideration of the merits of the district court's decision to unseal the documents at issue.

We begin by recognizing this country's common law tradition of public access to records of a judicial proceeding.78 Access to records serves the important functions of ensuring the integrity of judicial proceedings in particular and of the law enforcement process more generally.79 But as the Supreme Court noted in Nixon v. Warner Communications, Inc.,80 the tradition of access is not without its time-honored exceptions:

Every court has supervisory power over its own records and files, and access has been denied where court files might have become a vehicle for improper purposes. For example, the common-law right of inspection has bowed before the power of a court to insure that its records are not "used to gratify private spite or promote public scandal" through the publication of "the painful and sometimes disgusting details of a divorce case." Similarly, courts have refused to permit their files to serve as reservoirs of libelous statements for press consumption, or as sources of business information that might harm a litigant's competitive standing.

(citations omitted). The public has in the past been excluded, temporarily or permanently, from court proceedings or the records of court proceedings to protect private as well as public interests: to protect trade secrets,81 or the privacy and reputation of victims of crimes,82 as well as to guard against risks to national security interests,83 and to minimize the danger of an unfair trial by adverse publicity.84 In addition, both Congress and the courts have recognized that for certain purposes records of arrests and even of convictions may be expunged by action of the court.85

The Supreme Court has recently identified a first amendment right of access in the public to the conduct of a criminal trial, Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), but whether this right extends to the conduct of a pretrial suppression hearing,86 and, if so, what factors may be found weighty enough to permit complete or partial closure of such proceedings,87 is not clear. In any event, we deal here not with the closure of courtroom proceedings but with the sealing of documents whose contents were not specifically referred to or examined upon during the course of those proceedings and whose only relevance to the proceedings derived from the defendants' contention that many of them were not relevant to the proceedings, i. e., that the seizure exceeded the scope of the warrant.

The Court's decision in Richmond Newspapers has not cast doubt on its earlier conclusion that "the right to inspect and copy judicial records is not absolute;"88 nor do we read it to have undermined its conclusion, based on then available law, that "the decision as to access (to judicial records) is one best left to the sound discretion of the trial court, a discretion to be exercised in light of the relevant facts and circumstances of the particular case."89 In the analysis that follows we explain why under the facts and circumstances of this case we think the unsealing order was flawed and why we must remand for supplemental proceedings.

A. The "Generalized Interests" for and Against Public Access in This Case

Some aspects of the public's interest in access and of the appellants' interests in denying public access can be weighed without examining the contents of the documents at issue. In the remainder of this opinion these aspects of the competing interests involved in this case are referred to as the "generalized interests" at stake.

We acknowledge an important presumption in favor of public access to all facets of criminal court proceedings but we conclude that on the record now before us an assessment of the generalized interests here at stake does not support a conclusion that the documents at issue should not be retained under seal.

We cannot determine from the trial judge's orders what factors entered into his initial decision to unseal or even if he found a weighing of these generalized interests appropriate. For this reason alone we must remand. However, taken as having weighed only the generalized interests, we think the unsealing decision was an abuse of discretion. Compelling this conclusion in this case is an analysis of several relevant factors discussed under separate subheadings below.

1. The Need for Public Access to the Documents at Issue

Under this heading we bring together several considerations which in our judgment bear upon the precise weight to be assigned in this case to the always strong presumption in favor of public access to judicial proceedings. Some of these considerations have already been mentioned and others, because they also bear on the reasons why public access might be denied, will be emphasized again later.

We first note that this case does not involve access to the courtroom conduct of a criminal trial, recently found by the Supreme Court to be constitutionally protected.90 Nor does it involve access to the courtroom conduct of a pre-trial suppression motion, access the Court a year earlier ruled the sixth amendment alone did not protect.91 It does not involve access to documents which have been introduced as evidence of guilt or innocence in a trial,92 nor even documents whose contents have been discussed or insofar as we can determine relied upon by the trial judge in his decision on the defendants' motion to suppress. As we emphasize below,93 it concerns only access to documents introduced by the defendants solely to show the overbreadth of a search whose lawfulness, although decided by the trial judge in the government's favor, was certain to be appealed at the time the unsealing order was entered.94

The public in this case had access, inter alia, to the courtroom proceedings on the motion to suppress, to the memoranda filed by the parties in connection with that motion, to the trial judge's memorandum decision on the suppression motion, to the trial judge's memorandum decision on the negotiated disposition, to the stipulated record which was the basis for the defendants' convictions and to the actual "trial" of the criminal charges of which the defendants were convicted. None of the documents at issue here was either used in the examination of witnesses during the protracted public hearing on the suppression motion or specifically referred to in the trial judge's public decision on the motion to suppress or included as part of the publicly available stipulated record on which the defendants' criminal convictions were had.95

Under all these circumstances we conclude that the purposes of public access are only modestly served by the trial judge's unsealing decision.

Although the materials at issue are part of the "record" of the proceedings, their contents were not publicly revealed until the court entered its unsealing order.96 Previous access is a factor which may weigh in favor of subsequent access. Determining whether, when and under what conditions the public has already had access to court records in a given case cannot of course guide decision concerning whether, when and under what conditions the public should have access as an original matter. However, previous access has been considered relevant to a determination whether more liberal access should be granted to materials formerly properly accessible on a limited basis through legitimate public channels97 and to a determination whether further dissemination of already accessible materials can be restrained.98

The record in this case reveals no such access to the documents until the district court decided that there was "a right in the public to know."99 There is thus no previous access to weigh in favor of the access granted through the district court's unsealing order.

3. Fact of Objection and Identity of Those Objecting to Disclosure

Strong objections were raised to the unsealing order both by the individual defendants and, to the extent it was permitted, by the Church. This is an obvious but important consideration. The kinds of property and privacy interests asserted by the Church to require retention of the documents under seal can be waived by failure to assert them in timely fashion,100 and the strength with which a party asserts its interests is a significant indication of the importance of those rights to that party.

An important element in this case is the fact that the party from whom the documents were seized was not made a defendant in the proceedings and now objects to public access to the fruits of the seizure. We think that where a third party's property and privacy rights are at issue the need for minimizing intrusion is especially great and the public interest in access to materials which have never been judicially determined to be relevant to the crimes charged is especially small.101

We are well aware that all defendants here were officials or employees of the Church and that the defendants' interests and the Church's interests are integrally related; nonetheless it is also true that their interests are not identical. The defendants might not be permitted102 and are certainly not required to raise the Church's interests in preventing public access to the documents at issue. Even in the context of this case, then, we think the fact that objection to access is made by a third party weighs in favor of non-disclosure.

4. Strength of the Generalized Property and Privacy Interests Asserted

That the documents were seized from non-public areas of Church premises is undisputed. Accordingly, the Church's "standing" to assert the kinds of generalized interests which derived from the fact of seizure from its premises-interests which we have discussed above in connection with the Church's procedural rights103-is unquestionably strong.104 By this we mean its interest on this record is direct and substantial, substantial enough, given the other factors to be considered in weighing the generalized interests in public access against the generalized interest in nondisclosure here asserted, to require retention of the documents under seal.

The "standing" of the individual defendants to assert these generalized interests in the documents at issue is less clear. Because the Church's asserted interests are strong and the defendants assert no conflicting interest, we need not determine the precise scope of the individuals' generalized interests in the retention of the documents under seal. We note, however, that the defendants' standing to assert certain of these generalized property and privacy interests may be broader than the scope of their "standing" to object to an unlawful search and seizure.105

Two defendants whose extradition has only recently been accomplished remain to be tried. In addition, the government has the right to try the nine convicted defendants on any of the remaining counts should their single-count convictions be overturned on appeal. Thus, the possibility of prejudice to the defendants by sensational disclosure is a factor which may weigh in favor of denying immediate public access.106 The likelihood of prejudice will in turn depend on a number of factors, including, most importantly, the nature of the materials disclosed. Until such an examination is undertaken, the weight of this factor cannot be determined. The trial judge's conclusion that the possibility of prejudice is remote107-ostensibly reached without complete familiarity with the documents-cannot, therefore, favor public access.

6. The Purposes for Which the Documents Were Introduced

The single most important element in our conclusion that the proper balance has not been struck in this case is the fact that the documents at issue were introduced by the defendants for the sole purpose of demonstrating the unlawfulness of the search and seizure. Whatever the purposes served by the exclusionary rule, the fundamental thrust of the fourth amendment is at bottom the protection of privacy and property interests.108 Putting aside for the moment the prospect of untoward invasions of third-party interests, it would be ironic indeed if one who contests the lawfulness of a search and seizure were always required to acquiesce in a substantial invasion of those interests simply to vindicate them.109

It must be remembered that the documents here were not determined by the trial judge to be relevant to the crimes charged; they were not used in the subsequent "trial"; nor were they described or even expressly relied upon by the trial judge in his decision on the suppression motion. Their only use by the parties and the only purpose for which they were admitted in the criminal proceedings was to assist the court in its determination of whether the search and seizure were unlawfully overbroad. If such a connection with the proceedings were enough by itself to justify public access, there would be very little left of fourth amendment and common law rights to privacy. For, by the act of attempting to show the excesses of the search by the extent of the documents seized-documents which may not be relevant to criminal charges or necessary to trial-defendants in criminal proceedings and nondefendant owners in Rule 41(e) proceedings will invite public dissemination of the contents of the documents and thereby impair the very privacy rights they seek to vindicate, regardless of the use ultimately made of the documents by the court.

The risk is especially grave in document searches not only because the protected position occupied by personal papers has traditionally been closely guarded110 but because determination of a claim of overbreadth may require the court to examine the documents' contents. However, in this case it is not clear that such an examination was undertaken in the course of ruling on the suppression motion; the unsealing decision is thus especially difficult to reconcile with the purposes underlying the documents' inclusion in the record of the suppression proceedings.

Finally, one factor not crucial to our decision is nevertheless worth emphasizing: that is, that the lawfulness of the search and seizure was certain to be appealed at the time the trial judge entered his unsealing order.111 That appeal has been filed and is still pending in this court. Until the appellate route has been exhausted, the lawfulness of the search and seizure has not been finally determined. The possibility of reversal on appeal contributes to the irony inherent in the decision to unseal the documents at issue.

Given all the factors discussed above we conclude that on the present state of the record the seal on the documents at issue here should not have been lifted, and should continue unless on remand some substantial factors are identified which weigh in favor of public access to particular documents.

B. Particularized Factors That May Have Weighed Against Nondisclosure

To facilitate the proceedings on remand, we set forth below several reasons based on the documents' contents which might have been thought by the trial judge to justify his unsealing order. On this record, of course, we cannot determine whether these reasons were relied upon; our discussion of them represents merely the observations of an appellate court, and no inference should be drawn from our discussion that would conclude our review of the reasons actually given by the trial judge when the matter is again before us.

One possible reason for unsealing is that the documents were already made public through other means; the government has made this claim, at least in this court, as to some of the documents.112 A second is that the documents were stolen or contraband, hence forfeitable. The government asserted below that some of these documents meet that standard.113

A third possible reason, and the most troublesome as a matter of policy, is that the documents were evidence of crimes-whether additional evidence of the crimes charged, or evidence of other crimes committed by the defendants then before the court, or even evidence of crimes committed by persons not charged in the instant proceedings or then before the court. Of course, copies of the documents can be made available by the court to appropriate law enforcement authorities; no one disputes that here. But public access is more bothersome. Wholesale public access even of materials apparently relevant to criminal activity does not allow for the safeguards of the criminal process as to what is admissible evidence and what is not.114 As to potential defendants not involved in the proceeding, or even as to evidence of other crimes of the same defendants, premature publication can taint future prosecutions to the detriment of both the government and the defense. If the additional evidence be merely cumulative evidence of the same criminal acts on which the disposition agreement was based, public access would seem to serve little purpose, except perhaps if and when the materials are relied upon in sentencing.115

It is, however, possible to conjure up exceptional cases. For example, there may be cases where massive scale crimes would go unpunished if documents were not released to permit the public to take the steps necessary to ensure prosecution. Release for this reason might be considered justifiable under circumstances where the integrity of the law enforcement process would be substantially served by permitting public access; for example, where a governmental failure to prosecute in the light of overwhelming probable cause substantially impugns the integrity of the prosecutorial function. Another circumstance where access might be thought warranted is where the remedies of grievously injured and unknowing victims would be jeopardized if the documents never entered the public domain. Whether the trial judge justified unsealing on these or other bases is unclear. We think it incumbent on him to identify the reasons for his action with respect to the particular documents at issue.

C. Particularized Privacy Interests Which May Weigh in Favor of Denying Public Access

To be weighed against the particularized reasons which may justify public access are the particularized privacy or other interests that the Church or the individual defendants may assert.116 Some of these interests have already been weighed by the trial judge.

In his order of October 30, denying reconsideration of the earlier unsealing order, Judge Richey explained:

The defendants cite instances in which documents discuss the sex lives of members of the Church, tax returns of individuals, and attorney-client material of law firms. In order to make certain that such material, which would violate rights of innocent third-parties is not released, the Court will examine the documents at issue and will keep under seal those documents or portions of documents which would result in an unwarranted invasion of privacy. Of course such an exercise will be time consuming; however, fairness requires such a procedure.117

The kinds of interests cited by the defendants below do not, we think, exhaust the types of particularized privacy interests that might be asserted in the supplemental proceedings, nor do we think that the privacy interests to be protected are limited to those of "innocent third-parties." Valid privacy interests might be asserted either by the Church or by the individual defendants in documents as to which they (or Church members if the Church proceeds representatively) could assert a privilege against evidentiary use118 or in documents which reveal the intimate details of individual lives, sexual or otherwise,119 whether or not they concern "innocent third parties." Other valid privacy interests might also be asserted; we do not decide now which are valid and which are not.

IV. THE PROCEDURES TO BE FOLLOWED IN THE SUPPLEMENTAL PROCEEDINGS

We contemplate that on remand the district court will review its decision to unseal the documents. In doing so, the court should bear in mind: the Supreme Court's injunction that judicial officers attempt to minimize the intrusiveness of document searches;120 and this court's determination, on the basis of the record now before us, that the seal on the documents at issue should be retained, absent substantial factors weighing in favor of public access.

The record does not permit us to determine how the trial judge's analysis of the generalized interests at stake differed from our own, nor whether he may have justified disclosure on the basis of the "particularized" factors we suggest or on some other basis. If, upon reconsideration in light of our analysis, the trial judge determines to abide by his unsealing order in whole or in part, the reasons relied upon should be identified in a supplemental rationale with specific reference to the particular documents or group of documents to which each reason is applicable.

This supplemental rationale should be supplied to the parties, including the Church. The defendants on their own behalf and the Church on behalf of itself and its constituent members may then, by motion for reconsideration and accompanying affidavit, contest the reasons given in the supplemental rationale and articulate any particularized privacy interest they wish to assert with respect to a document that is to be released. The district court may then grant or deny the motions in whole or in part. It may be that where both the public interest in access and the private interest in non-disclosure are strong, partial or redacted disclosure would satisfy both interests. Such portions of the supplemental rationale, responses thereto and any order on reconsideration that are revealing of the contents of the documents at issue should be filed under seal. The record of the supplemental proceedings should then be transmitted to this court where our consideration of the orders will continue.121

We vacate the orders denying intervention and temporary injunctive relief, appealed in Nos. 79-2313 and 79-2324;122 stay the unsealing orders appealed in No. 79-2312 and remand the record for the proceedings which we direct. This division of the court retains jurisdiction over the matter and orders all documents here at issue sealed pending our decision following remand.

So ordered.

To my mind the majority opinion confuses privacy with secrecy. The majority resolve this appeal by remanding the record for clarification by the district court of the grounds on which it removed the seal on documents introduced into evidence by the defendants at the suppression hearing. The majority accompanies its disposition with a stay forbidding further disclosure of the evidentiary documents until this panel, which retains jurisdiction over the appeal, issues a further order regarding them.

My dissent from this disposition is based on my conclusion that the disclosure was not only warranted, but required. I also find the record sufficiently detailed to support the action taken by the district court, making this remand unnecessary. Finally, I disagree with the court that the Church of Scientology of California1 is entitled to intervene in the criminal proceedings.

* The facts are fully set forth in the court's opinion and, except for several which bear emphasis, will not be repeated here.

The source of the documents which are the subject of this appeal was the seizure from the Church of Scientology of California, at two Los Angeles locations. Copies of the 50,000 pages seized were transmitted to Washington, D. C. for consideration by the trial court to determine the validity of the search against the contention that it was a constitutionally impermissible general search. There is no disagreement on the court that the legal effect of requesting the trial court to examine the entirety of the seized materials was that they became part of the "record" of the case. Supra at 299 (quotation marks in original). I agree with the factual conclusion of the majority that this reflects the contemporaneous understanding of the parties and the district court.2

In the criminal proceedings involving individuals who are employees or officials of the Church of Scientology, the trial court adopted a disposition of the charges that conformed to the negotiated plea agreement. Just before rendering guilty verdicts after a bench trial, the judge ordered that all seized documents which the defendants had caused to be admitted into evidence on the earlier suppression motion, and which had not been earlier returned as unnecessary to the prosecution or used in the examination of witnesses at the suppression hearing, be made available for public inspection. Attempts to stay the disclosure were ineffective in the district court, before a motions division of this court, and before this Court en banc. Thereafter, the Chief Justice of the United States, acting as Circuit Justice, also denied an application for a stay. The disclosure of the documents was the question involved in such proceedings and the same issue is raised here a second time.

This proceeding reaches the court in a posture where the public disclosure of all the documents has continued until the present date. The majority now orders that the documents be sealed to prevent public access. Further disclosure is prohibited pending review by this court after remand. I dissent from that disposition because there is an ample factual and legal basis for the order of the district court making such evidentiary documents available as court records in the case.

* At the outset it is essential to consider the posture of the case when the judge removed the seal from the documents. The original claim by the defendants was that the search was illegal. This claim was based upon the allegedly overbroad language of the search warrant. In this respect the search warrant in California was the same as the one in the District of Columbia which had been held to be valid. In Re Search Warrant Dated July 4, 1977, 572 F.2d 321 (D.C.Cir.1977), cert. denied, 435 U.S. 925, 98 S.Ct. 1491, 55 L.Ed.2d 519 (1978). In Church of Scientology v. United States, 591 F.2d 533 (9th Cir. 1979), cert. denied 444 U.S. 1043, 100 S.Ct. 729, 62 L.Ed.2d 729 (1980) the court noted that "A similar warrant was obtained for a search of part of a building owned by the Founding Church of Scientology in Washington, D. C. The affidavits in support of the warrants were substantially identical, and so were the warrants, except for descriptions of the premises to be searched." (Emphasis added) 591 F.2d at 533. Nevertheless, the defendants in the criminal trial continued to press the claim by a motion to suppress. When the District Court in this Circuit, Judge Richey, ruled against the suppression motion all the evidence in the seized documents, in effect, became admissible as evidence against them. Apparently recognizing the probative force of such evidence to prove their guilt the defendants shortly thereafter entered guilty pleas as follows:

Sharon Thomas: Theft of government property-Count 17

Thus, the ruling on the motion to suppress effectively caused the disposition of the case and under normal court procedures the record upon which the court ruled would become available to the public almost as a matter of course. A different situation would exist if the seized documents had not been introduced into evidence, but they had-all of them. The Church contends that the documents had been introduced under seal "for the purpose of showing that the search and seizure was unlawful." They were admitted by the court as being relevant for that purpose. But the court ruled that such documents did not prove the search to be unlawful. The documents thus are at the core of the court's decision denying the suppression motion and it is customary and ordinary in such cases for the record to disclose the evidentiary basis for the ruling. And there is nothing to the point, that since the court ruled the search was lawful, and the documents had been offered by the defendants to prove the search was unlawful, that the documents upon which the court ruled may not be disclosed.

Additionally, there is nothing to the point that the Church has a different interest from the defendants. The individual defendants were not acting for themselves. They were acting for the Church. As charged in the indictment the Church of Scientology was organized with "a department known as the 'Guardian's Office' (which) had responsibility to promote the interests of Scientology by covertly identifying, locating, and obtaining all Scientology-related information in the possession of various individuals, government agencies and private organizations. Each of the Guardian Offices was composed of five bureaus including the Information Bureau which was assigned the responsibility for the conduct of covert operations including the collection of data and documents of interest to Scientology." (Emphasis added).

Individual defendants, including the wife of the head of the world wide Church, held official positions in the Guardian Office, United States, of the Church of Scientology as listed below in the column entitled "Positions".

Individuals Periods Positions