Judge declines to seal report in child welfare investigation

NEW YORK–In mid-October, a federal judge in Manhattan denied a motion filed by municipal defendants in a class action lawsuit to seal a court-ordered pretrial report until it had been received in evidence at the trial. The city filed the motion in August after plaintiffs’ counsel released the first part of the report to the news media.

The underlying lawsuit, which was filed in December 1995 on behalf of abused and neglected children, alleges that the New York City Administration for Children’s Services (ACS) mishandled the children’s cases. The report, prepared by independent welfare organizations, assessed the children’s ACS records to determine the accuracy of the factual allegations in the complaint.

In favor of secrecy, the city argued that releasing the report prior to trial would prejudice its case and cause “defeatism and demoralization” among ACS workers. The city further argued that the press published abbreviated versions of the report that emphasized negative comments about the agency and misinformed the public.

Southern District Judge Robert Ward held that the report was a judicial document to which the common law right of access attached, and said that the presumption of public access to the report is strong because it is likely to play an “important role” in the court’s handling of the case.

Ward rejected the city’s arguments, noting that under federal court rules, a party seeking to seal judicial documents must show “good cause.” Ward said that news coverage of the report was no less likely to hinder the functioning of ACS during trial than before trial. The judge further noted that the city would not be prejudiced because the case would not be heard by a jury.

The court declined to restrict public access to the report on the ground that it might be inaccurately interpreted, stating that it “is not for this Court to filter information for the public.” Finally, citing a 1995 decision from a federal appeals court in Manhattan (2d Cir.), the court noted that assessing the motives of journalists “risks self-serving judicial decisions tipping in favor of secrecy.”

The New York Times filed an amicus curiae brief opposing the city’s motion. (Marisol v. Giuliani; Plaintiff’s Counsel: David Brodsky, Manhattan)