## Facts

- The United States charged HSBC Bank USA, N.A. with willful Bank Secrecy Act violations involving anti-money-laundering program failures and charged HSBC Holdings plc with willfully facilitating transactions for sanctioned entities under federal sanctions laws.
- On the filing date, the government and HSBC entered a Deferred Prosecution Agreement (DPA), submitted a statement of facts and monitor agreement, and jointly sought to hold the case in abeyance for five years with time excluded under the Speedy Trial Act.
- The DPA required an independent corporate compliance monitor to issue periodic reports assessing HSBC’s reforms and compliance with the DPA, AML obligations, and sanctions laws.
- The court approved the DPA and Speedy Trial Act exclusion, stating approval was subject to continued monitoring of the DPA’s execution and directing the parties to keep the court informed of significant developments.
- The monitor submitted an annual report; at the government’s request it was filed under seal.
- A private citizen, Hubert Dean Moore, Jr., sought access to the monitor’s report and requested it be unsealed; the court treated the request as a motion to unseal.
- The government and HSBC opposed unsealing, citing law-enforcement and security risks, proprietary compliance details, employee privacy, and sensitive foreign-jurisdiction material.

## Issues

1. Whether the monitor’s report was a “judicial document” subject to the common-law presumption of public access.
2. Whether the First Amendment provided a qualified right of public access to the monitor’s report.
3. Whether countervailing interests justified continued sealing or only targeted redactions.

## Decision

- The court granted the motion in substantial part.
- It held the monitor’s report was a judicial document because it was relevant and useful to the court’s role in approving and assessing the continued propriety of the DPA and Speedy Trial Act exclusion.
- It found a qualified First Amendment right of access applied to the report.
- It ordered unsealing with limited redactions to protect law-enforcement and security interests, proprietary and security-sensitive compliance information, employee privacy, and confidential foreign-regulator or foreign-sovereign information.
- The court required a redaction process that did not simply adopt the parties’ proposals and contemplated further orders governing specific redactions before public release.

## Legal Principles

- A document is a judicial document when it is relevant to the performance of the judicial function and useful in the judicial process.
- Judicial documents carry a common-law presumption of public access, with the weight of the presumption increasing when the document bears on an adjudicatory determination.
- A qualified First Amendment right of access may attach to criminal-justice materials when openness serves the functioning and legitimacy of the process, subject to narrowly tailored restrictions.
- Sealing must be justified by specific countervailing interests; when feasible, courts should prefer limited redactions over blanket sealing to protect legitimate confidentiality, safety, and law-enforcement concerns.

## Conclusion

The court treated the DPA monitor’s report as part of the record supporting the court’s continuing role in assessing the DPA and Speedy Trial Act exclusion, recognized both common-law and qualified First Amendment access interests, and required public release of the report with carefully limited redactions to address concrete security, privacy, proprietary, and foreign-relations concerns.


United States v. HSBC Bank USA, N.A., 2016 WL 347670 (E.D.N.Y. Feb. 1, 2016)