One of the cards that continues to be played by the U.S. Department of Justice is keeping documents sealed that keep the public from knowing what the real evidence is that has been presented in federal court cases.  In the case of the United States versus the Bundy’s, federal prosecutors had their case dismissed because they failed to properly disclose exculpatory evidenceto the defendants and their attorneys.  Still even now secrecy continues to be the posture of federal prosecutors regarding the Bundy’s just as it was in case against the Custer Battlefield Museum and its founder, Chris Kortlander, more than a decade ago.

In 2011, the 9th Circuit Court of Appeals was asked to allow access by Kortlander to his own records when after more than five years of bureaucratic entanglement no charges had been brought and the investigation ended.  Having failed to get relief from a Billings Federal District Court Judge, Kortlander moved his request to the Court of Appeals.

After months of contentious wrangling, the government conceded that it no longer had concerns about disclosure of sensitive information including “informant and undercover officer identities” and “grand jury material.”  But still they didn’t want the information about their bungled investigation to get out to the public.  The government had concerns, unspecified concerns.

The court said that there are “two categories of documents that are not covered by the common law right of access: grand jury transcripts and warrant materials in the midst of a pre-indictment investigation.”  But the question here was about the common law right of access after an investigation has been terminated.  For Kortlander the answer was ‘yes’.

That court noted that post-investigation warrant materials have historically been available to the public.  “This tradition of openness” the court said, “serves as a check on the judiciary because the public can ensure that judges are not merely serving as a rubber stamp for the police.”  For these reasons, the 9th Circuit held that the public has a qualified common law right of access to warrant materials after an investigation has been terminated.

The question now before Bundy’s judge is will this openness continue as a guiding principle now that their case has been dismissed with prejudice, or will federal prosecutors continue to keep the veil of secrecy up for the Bundy’s even after their case has been lost.

Chris Kortlander is the Founding Director of the Custer Battlefield Museum and Author of Arrow to the Heart, the Last Battle of the Little Big Horn The Custer Battlefield Museum vs. The Federal Government