Court closes 'loophole' that kept Google report secret

The U.S. Court of Appeals in San Francisco (9th Cir.) yesterday reversed a federal district judge’s decision that the public has no presumptive right to access a report submitted by Google to the court in a case involving a bank's mistaken release of financial information to an unidentified Gmail user.

In September 2009, Judge James Ware of the Northern District in California granted the request of Rocky Mountain Bank in Rocky Mountain Bank v. Google Inc. to issue a temporary restraining order to Google and the anonymous Gmail user. According to court papers, the bank sought the restraining order after the bank mistakenly sent account information about more than one thousand customers to the Gmail email address. The judge ordered that Google deactivate the account and disclose the identity of the then-anonymous recipient.

Google eventually complied with the restraining order, and, per the court's order, submitted a report to the court detailing its compliance. The district court did not make that report available to the public, reasoning that, because the report was "lodged" with the judge rather than "filed" with the court clerk's office, the report did not qualify as a presumptively public judicial record.

The Public Citizen Litigation Group, representing MediaPost Communications, appealed the decision, saying that Google’s report should be public and if Ware wanted to keep the name of the Gmail user confidential in the report, that information could have been redacted.

The appeals court reversed the lower court’s decision, saying that "the district court did not point to any authority for the proposition that lodging alone is sufficient to overcome the public’s right to access,” the decision said. The appellate court left it to the district court on remand to consider whether there were other grounds that would justify sealing or redacting any information in the report.

Paul Alan Levy, an attorney for the Public Citizen Litigation Group, said he is pleased with the appeals court’s decision, adding that the group was “outraged” by the original order to keep Google’s compliance record private.

“We were concerned that saying ‘Well a document isn’t a public record because it has only been lodged by the court, and hasn’t been filed on the record’ is something that can be used as a huge loophole in the process,” Levy said. “Thankfully the court of appeals has closed that loophole.”

In March, another court records access case involving Google, this one in the U.S. Court of Appeals in Richmond, Va. (4th Cir.), resulted in only the partial release of previously sealed records.

In Rosetta Stone Ltd. v. Google, Inc., a U.S. district court in Virginia ruled that Google did not infringe and dilute Rosetta Stone’s trademark. Rosetta Stone appealed the decision to the Fourth Circuit and Public Citizen and two intellectual property legal commentators intervened in the appeal asking that volumes of court documents submitted by the parties be open to the public.

But the appeals court ruled it would unseal only “those documents that [Google] has agreed in its response to unseal.” Google said that it did not oppose unsealing 85 percent of the sealed appendix, but asked the court to keep the remainder of the record sealed. The court granted that request. The Reporters Committee for Freedom of the Press filed an amicus brief in support of Public Citizen's subsequent request to reconsider, which the court denied.