Pro Publica, Inc. v. Major General David J. Bligh; John Phelan; Earl G. Matthews; and Pete Hegseth

• Court: District Court, S.D. California
• Decided: February 9, 2026
• Docket: 3:22-cv-01455
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 PRO PUBLICA, INC., Case No.: 22-cv-1455-BTM-KSC

12 Plaintiff, ORDER ON ARTICLE 32 13 v. REPORTS 14 MAJOR GENERAL DAVID J. BLIGH; JOHN PHELAN; EARL G. 15 MATTHEWS; and PETE 16 HEGSETH, 17 Defendants. 18 19 20 21 22 23 24 25 26 27 28 1 In an order entered September 12, 2025, the Court granted in part and 2 denied in part the parties’ cross motions for summary judgment. The Court held 3 that the First Amendment right of access applies to filings and documentary 4 evidence in Article 32 (preliminary) hearings and in full court-martial proceedings. 5 The question of whether Article 32 reports fall within the First Amendment right of 6 access was not extensively briefed. The issue has now been briefed by the parties 7 in anticipation of the entry of final judgment. In this order, the Court holds that 8 Article 32 reports fall within the First Amendment public right of access. The Court 9 will thus enter final judgment accordingly. 10 Article 32 hearings are preliminary hearings used to determine whether 11 charges should be filed against the accused servicemember. They are in essence 12 preliminary and public hearings similar to Federal Rule of Criminal Procedure 5.1. 13 See United States v. Davis, 64 M.J. 445, 446-47 (C.A.A.F. 2007) (“The procedures 14 for an Article 32 hearing include representation of the accused by counsel, the right 15 to present evidence, and the right to call and cross-examine witnesses.”); United 16 States v. Davis, 62 M.J. 645, 647 (A.F.C.C.A. 2006) (“It is settled that Article 32 17 investigations are presumptively public hearings.”). 18 Except in unusual circumstances, Article 32 hearings are presided over by 19 an “impartial judge advocate.” R.C.M. 405(e)(1)(A). “The preliminary hearing 20 officer shall make a timely written report of the preliminary hearing.” R.C.M. 21 405(m)(1). Article 32 reports contain, among other things, the names of counsel, 22 a summary of the evidence, a recommendation as to whether the charges should 23 be amended, a statement of whether there is probable cause and whether there is 24 jurisdiction, and a recommendation “as to the disposition that should be made of 25 the charges and specifications in the interest of justice and discipline.” R.C.M. 26 405(m)(2). A copy of the Article 32 report must be given to the accused. R.C.M. 27 405(m)(4). 28 The First Amendment generally grants the public the right to attend criminal 1 proceedings and to access the filings in such proceedings. See, e.g., Waller v. 2 Georgia, 467 U.S. 39, 44 (1984) (noting that “the press and public have a qualified 3 First Amendment right to attend a criminal trial”); Forbes Media LLC v. United 4 States, 61 F.4th 1072, 1077 (9th Cir. 2023) (explaining that the First Amendment’s 5 right of public access generally applies to criminal proceedings and to filings in 6 such proceedings). The scope of the public right of access is determined by a two- 7 part test: courts look first to “experience,” that is, whether historically the public 8 was granted the access at issue, and second to “logic,” that is, whether the right 9 of access significantly furthers the process at issue. See Press-Enterprise Co. v. 10 Superior Court, 478 U.S. 1, 8-9 (1986). 11 Under that test, Article 32 reports must be available to the press and public 12 in the usual course. Such reports may be redacted or withheld only when 13 consistent with the First Amendment. The right of access applicable to Article 32 14 hearings must also attach to the report because it is fundamentally part of the 15 hearing. It summarizes the evidence and assesses whether the charges can be 16 proven at a full court-martial. There is no valid basis to keep the report from the 17 public. See, e.g., Nixon v. Warner Communications, 435 U.S. 589, 597 (1978) 18 (“[C]ourts of this country recognize a general right to inspect and copy public 19 records and documents, including judicial records and documents.”); Oregonian 20 Publishing Co. v. United States District Court, 920 F.2d 1462, 1466 (9th Cir. 1990) 21 (“[T]he press and public have a qualified right of access to plea agreements and 22 related documents under the First Amendment.”); Seattle Times Co. v. United 23 States District Court, 845 F.2d 1513, 1517 (9th Cir. 1988) (“[T]he press and public 24 have a right of access to pretrial release proceedings and documents filed 25 therein.”). 26 The Government’s reliance on the deliberative process privilege is not 27 persuasive. “[T]he deliberative process privilege shields from disclosure 28 ‘documents reflecting advisory opinions, recommendations and deliberations 1 comprising part of a process by which governmental decisions and policies are 2 formulated.’” United States Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261, 3 267 (2021) (quoting NLRB v. Sears, Roebuck & Co., 421 U. S. 132, 150 (1975)). 4 “[A] court must evaluate the documents ‘in the context of the administrative 5 process which generated them.’” Id. at 269 (quoting Sears, 421 U.S. at 138)). 6 The privilege does not apply to Article 32 reports because they are required, 7 given to the defendant, and written by impartial judges. The context here is not a 8 deliberative process at all but rather an impartial evaluation of whether a criminal 9 matter should proceed. The privilege is thus inapplicable. Further, the privilege 10 has no applicability because candor is already a necessary aspect of the report. 11 See Id. at 267 (explaining that the deliberative process privilege is meant to 12 “encourage candor” and to “blunt[] the chilling effect that accompanies the prospect 13 of disclosure”). Because Article 32 reports must be given to the accused, the 14 “prospect of disclosure” is a forgone conclusion. See id. The deliberative process 15 privilege simply does not apply to documents, such as an Article 32 report, that will 16 be released to persons not responsible for the deliberation. Moreover, the 17 Government’s description of the report as “predecisional” and “advisory” does not 18 change the analysis. See Transgender Law Ctr. v. Immigration & Customs Enf’t, 19 46 F.4th 771, 783 (9th Cir. 2022) (“[S]imply designating a document as a draft does 20 not automatically make it privileged under the deliberative process privilege.” 21 (citation and quotation marks omitted)). 22 Last, any attempt by the Government to withhold filings under the Freedom 23 of Information Act (FOIA), the Privacy Act, or another statute must of course be 24 consistent with the First Amendment. See generally Jacobs v. Schiffer, 204 F.3d 25 259, 265 (D.C. Cir. 2000) (explaining that the First Amendment is “superior” to 26 “statutory and regulatory provisions”). The Court notes that FOIA’s purpose is to 27 increase public access to government records. See Milner v. Dep’t of the Navy, 28 562 U.S. 562, 571 (2011) (“We have often noted the Act’s goal of broad disclosure 1 ||and insisted that the exemptions be given a narrow compass.” (citation and 2 ||quotation marks omitted)). The First Amendment right of access to court 3 documents requires disclosure notwithstanding an exemption under FOIA. See, 4 |le.g., In re New York Times Co., 828 F.2d 110, 115 (2d Cir. 1987) (“Obviously, a 5 || statute cannot override a constitutional right.”). 6 In sum, the final judgment will require compliance with the First Amendment, 7 |jand the First Amendment requires disclosure of Article 32 reports subject to 8 || permissible redactions or withholding. 9 || IT IS SO ORDERED. 10 ||Dated: February 9, 2026 _— 11 ny Te Jeane Honorable Barry Ted Moskowit 12 United States District Judge 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28