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United States v. Kaczynski

August 4, 2010

UNITED STATES OF AMERICA, PLAINTIFF,
v.
THEODORE JOHN KACZYNSKI, DEFENDANT.



The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge

ORDER

This Order concerns the implementation of the plan developed to sell or dispose of property seized during the criminal investigation of bombings for which Defendant Theodore John Kaczynski ("Kaczynski") pleaded guilty and has been sentenced. A status hearing was scheduled in this case concerning when the approved plan will be implemented, which was ultimately held on June 14, 2010.

I. BACKGROUND

An order approving the plan developed to sell or dispose of Kaczynski's personal property (the "Plan") issued on August 10, 2006. The Plan includes the sale at an online auction of "more than 20 thousand pages of documents written by hand by [Kaczynski], much of it with writing on both sides of the page" (hereinafter referenced as "writings"). (Docket No. 758, 1:22-23.) Kaczynski appealed the district court's order approving the Plan; however, on January 9, 2009, the Ninth Circuit affirmed the district court's order in United States v. Kaczynski, 551 F.3d 1120 (9th Cir. 2009) ("Kaczynski"). Following this Ninth Circuit decision, the district court scheduled a status hearing, and required Plaintiff United States of America (the "government") to file a status report addressing when the Plan would be implemented; any response to the government's status report was required to be filed prior to the status hearing. (Docket No. 755.)

The government filed a status report on May 10, 2010, in which it stated the following:

A few months ago, the [Federal Bureau of Investigation (the "FBI")] provided six boxes of documents with proposed redactions to the U.S. Attorney's Office for review. That review determined that the redactions initially proposed by [the] FBI, of information that would ordinarily be protected from disclosure by law, exceeded the scope of redactions authorized by this court's orders. Specifically:

(a) Some of the writings include the social security number of a person who was incarcerated at the time of the bombings. In addition, defendant's own social security number appears throughout the materials. FBI would normally redact social security numbers absent a waiver or court order specifically authorizing release.

(b) The writings refer to defendant's family members and friends, including their addresses. In addition to privacy concerns, FBI has concerns about releasing into the general public information about persons closely associated with defendant, in view of public sentiment regarding defendant himself and anticipated media attention in connection with the public auction.

(c) The names of victims and intended victims appear in newspaper articles among the property to be sold.

(Docket No. 758, 2:17-3:2.)

The government further stated in its status report: In order to comply with the court's prior order without incurring a risk of liability, the government requests that the court specifically order the FBI to release defendant's documents after redacting only the three categories of information referred to in the Order of August 10, 2006 (i.e., "the names of all the victims and their families," "all recognized descriptions of the victims and their injuries," and "the names of intended victims").

(Id. 3:8-12.) The government also requested clarification of what constitutes "bomb-making instructions" which are required "to be excluded from the materials to be auctioned." (Id. 3:17-18.)

Following consideration of the government's status report, the district court directed the government to file a supplemental status report for the purpose of explaining "whether privacy or other concerns justify redactions other than what has been addressed in prior orders," "since certain of the FBI's proposed redactions have not previously submitted for judicial decision...." (Docket No. 760, 2:2-6.) Therefore, the status hearing was rescheduled and any response to the government's supplemental status report was required to be filed before the rescheduled status hearing. (Id. 2:16-17.)

The government filed a supplemental status report on May 20, 2010, in which it stated:

In the government's view, redactions other than the narrow categories identified in the order of August 10, 2006, approving the amended plan of sale (Docket Item 730) would be inconsistent with that order. Although the order does not explicitly forbid further redactions, it impliedly does so when read in the context of Ninth Circuit decisions in this case.

(Docket No. 762, 1:26-2:2.) However, the government also stated "the redaction of all but the last four digits of social security numbers may be appropriate" in light of the potential for identity theft and the fact that social security ...


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