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Public access right trumps parties' secrecy agreement

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NEWS MEDIA UPDATE   ·   NINTH CIRCUIT   ·   Secret Courts   ·   May 19, 2006

NEWS MEDIA UPDATE   ·   NINTH CIRCUIT   ·   Secret Courts   ·   May 19, 2006


Public access right trumps parties’ secrecy agreement

  • A newspaper may access sealed court documents in a police corruption case that settled before trial, a federal appeals court ruled.

May 19, 2006  ·   A federal magistrate judge properly unsealed court documents in a case involving alleged police corruption that ended in settlement, the U.S. Court of Appeals in San Francisco (9th Cir.) ruled Wednesday.

Neither the city of Honolulu nor the U.S. Department of Justice convinced the court that its interest in keeping the material secret trumped The Honolulu Advertiser‘s presumption of access to court records that were originally sealed with the parties’ mutual agreement. The Advertiser sought the records in fall 2002 to investigate police officer Kenneth Kamakana’s claims that he was transferred out of Honolulu’s elite Criminal Intelligence Unit (CIU) for reporting other officers’ misconduct and illegal acts.

The city “had a chance to show ‘compelling reasons’ [for keeping attachments to summary judgment motions sealed] and squandered it,” Judge M. Margaret McKeown wrote for the unanimous three-judge panel. The city’s arguments that the documents’ unsealing would “hinder CIU’s future operations with other agencies, endanger informants’ lives, and cast officers in a false light [are] conclusory offerings [that] do not rise to the level of ‘compelling reasons’ sufficiently specific to bar the public access to the documents.”

Jeffrey Portnoy, attorney for The Advertiser, said the appellate court’s decision is a ringing affirmation of the public’s right of access. “In this case, a police officer alleged significant misconduct on the part of the Honolulu Police Department and it was totally secret and a lot of money was paid to settle the case,” he said. “Once these documents are revealed people can draw their own conclusions about whether there are issues they should be concerned about and what to do about them.”

The parties’ stipulated agreement did not guarantee that documents and deposition transcripts would remain sealed, particularly when attached to court filings, Judge McKeown noted, rejecting the government’s argument that it provided witnesses in the case under the assumption that their testimony would be kept secret under the parties’ agreement.

“The position of the United States illustrates the hazard of stipulated protective orders. These orders often contain provisions that purport to put the entire litigation under lock and key without regard to the actual requirements of [the law],” she wrote.

Portnoy said the court’s decision will be a wake-up call for litigants. “Parties often agree to stipulated protective orders and think, ‘Wow, I escaped the bullet,'” he said. “This decision says to the parties: this really doesn’t give you any protection at all. You really need to go through the proper processes so you don’t lose all this protection once the public seeks access,” Portnoy said. Otherwise, fighting over what protective orders cover “can cost a lot of time and money.”

Parties must show “good cause” for keeping records attached to most pre-trial motions sealed and “compelling reasons” for keeping records attached to motions seeking to end a case sealed. Judge McKeown said. A higher standard exists for motions seeking to end a case because the resolution of a dispute “is at the heart of the interest in ensuring the ‘public’s understanding of the judicial process and of significant public events,'” she wrote, quoting an earlier decision by a different panel on the federal appeals court. The city and the U.S. failed to prove why either type of document should remain sealed.

Magistrate Judge Leslie E. Kobayashi of Honolulu approved the parties’ stipulated protective order in June 2001 that limited access to pre-trial documents and depositions in the case solely to parties and their counsel and solely for use in the litigation.

After evidence had been collected in preparation for trial, District Court Judge Susan Oki Mollway of Honolulu granted the parties’ request to file summary judgment motions under seal, but stated that “[t]he court reserves the right to unseal materials filed under seal if, upon reviewing the sealed materials, the court determines that they should be available to the public or otherwise do not merit sealed status.” The district court largely denied the summary judgment motions, and the parties settled before trial.

(Kamakana v. City & County of Honolulu; Counsel for media intervenor: Jeffrey S. Portnoy, Cades, Schutte, Fleming & Wright, Honolulu)SB


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