"Appellate courts have on several occasions emphasized that upon entering orders which inhibit the flow of information between courts and the public, district courts should articulate on the record their reasons for doing so"
How later courts described this case
- "Appellate courts have on several occasions emphasized that upon entering orders which inhibit the flow of information between courts and the public, district courts should articulate on the record their reasons for doing so"
- reversing because "[w]e find no evidence in the record that the district court balanced the competing interests prior to sealing the final order"
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
JASMINE D. LEWIS,
Petitioner, : Case No. 2:20-cv-3461
- vs - District Judge Michael H. Watson
Magistrate Judge Michael R. Merz
SHELBIE SMITH, Warden,
Dayton Correctional Institution,
:
Respondent.
DECISION AND ORDER REGARDING DOCUMENTS FILED
UNDER SEAL
On Motion of the Petitioner (ECF No. 13), the Magistrate Judge allowed certain documents
to be filed temporarily under seal (ECF No. 14) so that Court could perform the review related to
sealing required by Procter &Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996), and
Shane Group., Inc., v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 306 (6th Cir.
2016)(Kethledge, J.).
The documents in question are the Presentence Investigation Report in the underlying
criminal case (ECF No. 15, PageID 369-79) and a report on an evaluation of Petitioner’s
competency to stand trial from the Forensic Psychiatry Center for Western Ohio, prepared by
Barbra Bergman, Ph.D. Id. at PageID 380-90.
The only justification given by Petitioner for filing these documents under seal is that they
“contain confidential and sensitive information regarding Lewis.” (ECF No. 13, PageID 361). This
claim is completely conclusory. It fails to describe the nature of the information in each of these
eleven-page documents which is claimed to be confidential and any case authority supporting the
putative confidentiality of any of the information. This leaves it completely to the Court to
hypothesize and evaluate possible bases for the confidentiality claim.
Turning first to the Presentence Investigation Report, the Court notes that it contains no
facial indicia of confidentiality. Compare S. D. Ohio Crim. R. 32.1(k) which provides:
(k) Both the initial and final presentence reports are confidential
Court documents. All copies and all information contained in the
reports shall be maintained in confidence by anyone who obtains
them and not disclosed to another for any purpose other than the
prosecution or defense of the case or unless the Judge to whom this
case is assigned authorizes another disclosure. Each page of the
initial and final reports shall contain the legend, “CONFIDENTIAL
UNDER S.D. OHIO CRIM. R. 32.1. UNAUTHORIZED
DISCLOSURE MAY BE PUNISHED AS A CONTEMPT OF
THIS COURT.” Pursuant to 28 U.S.C. § 994(w), the sentencing
judge shall provide the presentence report to the Sentencing
Commission, along with the statement of reasons for the sentence
imposed, the judgment, any written plea agreement, and the
indictment or other charging document, within thirty days of the
entry of the judgment. The Probation Officer shall provide a copy of
the final report to the Bureau of Prisons. If the defendant’s
supervision is transferred to another district, the Probation Officer
shall provide a copy of the final report to the Probation Department
of the transferee district. All paper copies shall be maintained in
secured files, and all electronic copies shall be password-protected.
Any presentence report filed with the Clerk shall be filed under seal.
Violations of this Rule may be punished as a contempt of this Court.
Does the Logan County Common Pleas Court have a similar or parallel rule? Or some
other way in which it attempts to protect some or all of the information in presentence investigation
reports?
If we turn then to the competency evaluation, there the author has stated that the contents
should remain confidential. But have they been maintained in confidence? In other words, at
some point after the confidentiality legend was printed onn the report did one or more persons
disregard it and make it broadly available? The Federal Rules of Civil Procedure provide for the
protection of trade secrets, but only so long as their secrecy has not been breached.
Judge Kethledge’s statement of the standard for sealing bears quoting at some length:
By way of background, there is a stark difference between so-called
"protective orders" entered pursuant to the discovery provisions of
Federal Rule of Civil Procedure 26, on the one hand, and orders to
seal court records, on the other. Discovery concerns the parties'
exchange of information that might or might not be relevant to their
case. "Secrecy is fine at the discovery stage, before the material
enters the judicial record." Baxter Int'l, Inc. v. Abbott Labs., 297
F.3d 544, 545 (7th Cir. 2002). Thus, a district court may enter a
protective order limiting the use or disclosure of discovery materials
upon a mere showing of "good cause[.]" Fed. R. Civ. P. 26(c)(1).
These orders are often blanket in nature, and allow the parties to
determine in the first instance whether particular materials fall
within the order's protection.
"At the adjudication stage, however, very different considerations
apply." Joy v. North, 692 F.2d 880, 893 (2d Cir. 1982). The line
between these two stages, discovery and adjudicative, is crossed
when the parties place material in the court record. Baxter, 297 F.3d
at 545. Unlike information merely exchanged between the parties,
"[t]he public has a strong interest in obtaining the information
contained in the court record." Brown & Williamson Tobacco Corp.
v. F.T.C., 710 F.2d 1165, 1180 (6th Cir. 1983). That interest rests on
several grounds. Sometimes, the public's interest is focused
primarily upon the litigation's result—whether a right does or does
not exist, or a statute is or is not constitutional. In other cases—
including "antitrust" cases, Id. at 1179—the public's interest is
focused not only on the result, but also on the conduct giving rise to
the case. In those cases, "secrecy insulates the participants, masking
impropriety, obscuring incompetence, and concealing corruption."
Id. And in any of these cases, the public is entitled to assess for itself
the merits of judicial decisions. Thus, "[t]he public has an interest in
ascertaining what evidence and records the District Court and this
Court have relied upon in reaching our decisions." Id. at 1181; see
also, e.g., Baxter, 297 F.3d at 546.
The courts have long recognized, therefore, a "strong presumption
in favor of openness" as to court records. Brown & Williamson, 710
F.2d at 1179. The burden of overcoming that presumption is borne
by the party that seeks to seal them. In re Cendant Corp., 260 F.3d
183, 194 (3d Cir. 2001). The burden is a heavy one: "Only the most
compelling reasons can justify non-disclosure of judicial records."
In re Knoxville News-Sentinel Co., 723 F.2d 470, 476 (6th Cir.
1983). Moreover, the greater the public interest in the litigation's
subject matter, the greater the showing necessary to overcome the
presumption of access. See Brown & Williamson, 710 F.2d at 1179.
For example, in class actions—where by definition "some members
of the public are also parties to the [case]"—the standards for
denying public access to the record "should be applied . . . with
particular strictness." Cendant, 260 F.3d at 194. And even where a
party can show a compelling reason why certain documents or
portions thereof should be sealed, the seal itself must be narrowly
tailored to serve that reason. See, e.g., Press-Enter. Co. v. Superior
Court of California, Riverside Cnty., 464 U.S. 501, 509-11, 104 S.
Ct. 819, 78 L. Ed. 2d 629 (1984). The proponent of sealing therefore
must "analyze in detail, document by document, the propriety of
secrecy, providing reasons and legal citations." Baxter, 297 F.3d at
548.
In like fashion, a district court that chooses to seal court records must
set forth specific findings and conclusions "which justify
nondisclosure to the public." Brown & Williamson, 710 F.2d at
1176. That is true even if neither party objects to the motion to seal,
as apparently neither did in Brown & Williamson. (There, our court
"reach[ed] the question" of the district court's seal "on our own
motion." Id.) As our decision there illustrates, a court's obligation to
explain the basis for sealing court records is independent of whether
anyone objects to it. And a court's failure to set forth those reasons—
as to why the interests in support of nondisclosure are compelling,
why the interests supporting access are less so, and why the seal
itself is no broader than necessary—is itself grounds to vacate an
order to seal. Id.; see also United States v. Kravetz, 706 F.3d 47, 60
(1st Cir. 2013) ("Appellate courts have on several occasions
emphasized that upon entering orders which inhibit the flow of
information between courts and the public, district courts should
articulate on the record their reasons for doing so"); SEC v. Van
Waeyenberghe, 990 F.2d 845, 849 (5th Cir. 1993) (reversing
because "[w]e find no evidence in the record that the district court
balanced the competing interests prior to sealing the final order").
We review the court's orders to seal its records for an abuse of
discretion—although, "[i]n light of the important rights involved,
the district court's decision is not accorded" the deference that
standard normally brings. Knoxville News-Sentinel, 723 F.2d at 476.
Shane Group., Inc., v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 306 (6th Cir. 2016).
It would be easy – in the interest of judicial economy, one might say – to grant a sealing
motion when no party objects. Review of a sealing or unsealing order, after all, is for abuse of
discretion. Meyer Goldberg, Inc. v. Fisher Foods, Inc., 823 F.2d 159, 161 (6th Cir. 1987).
But a court's discretion to seal its records is bounded by a "long-
established legal tradition" of the "presumptive right of the public to
inspect and copy judicial documents and files." Knoxville News-
Sentinel, 723 F.2d at 474. "In light of the important rights involved,"
we have held that "the district court's decision is not accorded the
traditional scope of 'narrow review reserved for discretionary
decisions based on first-hand observations.'" Id. at 476 (quoting
United States v. Criden, 648 F.2d 814, 818 (3d Cir. 1981)). Instead,
"[o]nly the most compelling reasons can justify non-disclosure of
judicial records." Id. (citations omitted).
Rudd Equip. Co. v. John Deere Constr. & Forestry Co., 834 F.3d 589, 593 (6th Cir. 2016). Thus
a simple one-word notation order will not due.
The Magistrate Judge realizes that the task of justifying a sealing order may be
burdensome, but that burden is by law on the party seeking sealing. Justifying a sealing by having
a judge hypothesize what interests are sought to be protected is even more burdensome for the
judge involved.
Accordingly, the motion to maintain these two documents under seal is DENIED without
prejudice to its renewal not later than October 22, 2020, if supported by a memorandum detailing
the confidentiality interests sought to be protected by a sealing order and any authority counsel
may have for the legal recognition of those interests.
The Sixth Circuit and Supreme Court jurisprudence on sealing appears to be binary:
something (a court record or hearing) is either open or closed. Shane Group, for example, does
not discuss intermediate possibilities. However, electronic filing has made access much easier,
but intermediate approaches to confidentiality more available. For example, a large portion of the
work of this and many District Courts consists of reviewing claims for disability compensation
under the Social Security Act. The administrative records in those cases consist largely of medical
records which must be reviewed by the Court and are therefore public records, but which need not
be available to any person who has a PACER account. Members of the public who wish to view
those records must do so at the Clerk’s Office terminal. In seeking protection for the two
documents in question, counsel may wish to consult with the Clerk about levels of sealing the
electronic record that would protect his client’s confidentiality interest without complete sealing.
Counsel may also wish to propose redacting any information from the public copies of those
documents and filing unredacted copies under seal. See Fed.R.Civ.P. 5.2.
The documents in question will remain temporarily under seal pending a final
determination of the sealing question.
October 12, 2020.
s/ Michael R. Merz
United States Magistrate Judge