Kamakana v. City and County of Honolulu

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

KENNETH KAMAKANA, 

Plaintiff-Appellee,

UNITED STATES OF AMERICA,

Intervenor-Appellant,

GANNETT PACIFIC CORPORATION, dba

The Honolulu Advertiser,

Intervenor-Appellee,

No. 04-15241

v.

CITY AND COUNTY OF HONOLULU;  D.C. No.

CV-00-00729-LEB

LEE DONOHUE, in his official

OPINION

capacity; MILTON OLMOS, in his

official capacity,

Defendants-Appellants,

and

LEE DONAHUE, individually;

MILTON OLMOS, individually,

Defendants.



Appeal from the United States District Court

for the District of Hawaii

Leslie E. Kobayashi, Magistrate Judge, Presiding

Argued November 17, 2005

Submitted May 11, 2006

Honolulu, Hawaii

Filed May 17, 2006

Before: Robert R. Beezer, Michael Daly Hawkins, and

M. Margaret McKeown, Circuit Judges.

5391

5392 KAMAKANA v. CITY AND COUNTY OF HONOLULU

Opinion by Judge McKeown

5394 KAMAKANA v. CITY AND COUNTY OF HONOLULU

COUNSEL

Jerold T. Matayoshi, Fukunaga, Matayoshi, Hershey & Ching,

Honolulu, Hawaii, for the defendant-appellant.

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5395

Steve Frank, U.S. Department of Justice, Civil Division,

Washington, DC, for the intervenor-appellant.

William J. McCorriston, McCorriston Miller Mukai MacKin-

non, Honolulu, Hawaii, for the plaintiff-appellee.

Jeffrey S. Portnoy, Cades, Schutte, Fleming & Wright, Hono-

lulu, Hawaii, for the intervenor-appellee.

OPINION

McKEOWN, Circuit Judge:

We consider whether court records, originally filed under

seal as attachments to motions in a civil action alleging police

corruption, must be released to a newspaper under the com-

mon law right of access. This appeal stems from a suit by

Kenneth Kamakana, a Honolulu police detective, claiming

retaliation by the City and County of Honolulu for his

whistleblower activities. Although that suit settled and its

merits are not at issue here, during the litigation scores of doc-

uments were filed under seal in accord with a stipulated pro-

tective order. On the motion of intervenor Gannett Pacific

Corporation/The Honolulu Advertiser (“Honolulu Advertis-

er”), the magistrate judge undertook a detailed and exhaustive

review and unsealed virtually all of the pleadings and docu-

ments. The City and County of Honolulu, as well as Lee

Donohue and Milton Olmos in their official capacities (collec-

tively the “City”), with the United States as intervenor, chal-

lenge that order. We affirm.

BACKGROUND

I. KAMAKANA’S CASE

Kamakana was a detective in the Honolulu Police Depart-

ment (HPD). From 1991 to 2000, he was in the elite Criminal

5396 KAMAKANA v. CITY AND COUNTY OF HONOLULU

Intelligence Unit (CIU), which investigates organized crime.

In September 2000, Kamakana was transferred out of CIU.

The following year, the department’s Internal Affairs division

initiated criminal and administrative investigations against

Kamakana.

Shortly after his transfer in 2000, Kamakana filed a civil

rights action against the City and others, alleging that the City

violated his free speech rights, conspired to violate his civil

rights, and retaliated against him as a whistleblower. The crux

of his claim was that his transfer was in retaliation for his

reporting misconduct and illegal acts by other HPD officers

to his superiors and the Federal Bureau of Investigation.

After discovery and other pre-trial proceedings, the parties

filed motions for summary judgment under seal. The district

court denied, in large part, the City’s motion and Kamakana’s

cross-motion for partial summary judgment on his whistle-

blowing claim. The case settled before trial and Kamakana

stipulated to dismiss all of his claims.

II. SEALED DOCUMENTS AND THE HONOLULU ADVERTISER’S

INTERVENTION

We recount in detail the procedural background as it pro-

vides context for the unsealing order. In June 2001, the magis-

trate judge approved an amended, stipulated protective order,

which restricted access to discovery materials to parties and

counsel and limited their use solely for the litigation. Discov-

ery began in earnest following entry of the protective order.

In December 2001, the City served the United States, a third

party, with requests for witness depositions and documents.

In accord with the protective order, the parties sought court

permission to file their summary judgment pleadings under

seal. The district court granted the motion but stated, “The

court reserves the right to unseal materials filed under seal if,

upon reviewing the sealed materials, the court determines that

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5397

they should be available to the public or otherwise do not

merit sealed status.”

In the fall of 2002, the Honolulu Advertiser filed a motion

to intervene for the limited purpose of modifying the protec-

tive order and unsealing the judicial record. The magistrate

judge granted the motion to intervene and modified the pro-

tective order. Because the parties had simply stipulated to the

protective order, a particularized showing of “good cause” to

keep the documents under seal had never been made to the

court as required by Federal Rule of Civil Procedure 26(c).

The magistrate judge ordered the parties to submit all materi-

als they wished to keep sealed along with “specific averments

as to why good cause exists.” The order noted that “[t]he bur-

den of showing good cause will be on the party seeking to

keep the information and/or documents confidential.” The

court declined at that time to determine whether the public

had a common law right to access the documents because

“such a determination is necessary only after it is shown that

good cause exists to restrict disclosure.”

Slightly different procedures applied to the City and the

United States. The court ordered the City to submit its materi-

als to a special discovery master for good cause determina-

tions under Rule 26(c). Though not yet an intervenor at the

time, the United States was directed to submit materials

directly to the magistrate judge for an in camera good cause

analysis.

In February 2003, the United States submitted transcripts

and documents for the in camera review. In June 2003, the

magistrate judge ordered, subject to limited specified excep-

tions, the transcripts and documents to be unsealed.

After in camera inspection of the City’s documents, the

discovery master issued a report and recommendation in Feb-

ruary 2003 that listed general categories of documents to

remain sealed and redactions to be made. The magistrate

5398 KAMAKANA v. CITY AND COUNTY OF HONOLULU

judge rejected the report and ordered the special master to

identify specific documents to be sealed. Following this direc-

tive, the special master submitted an amended report and rec-

ommendation, categorizing each document as sealed,

unsealed, or unsealed with redactions based on the good cause

standard. The magistrate judge adopted the report and the City

immediately filed a motion to reconsider, which the judge

took under advisement.

The City and the Honolulu Advertiser then met with the

special master who took another look at various documents

and issued another report and recommendation. In October

2003, the magistrate judge adopted this report. In the same

order, the magistrate judge noted that the Ninth Circuit had

decided in Foltz v. State Farm Mutual Auto Insurance Com-

pany, 331 F.3d 1122, 1135 (9th Cir. 2003), that “the presump-

tion of access is not rebutted where documents which are the

subject of a protective order are filed with the court as attach-

ments to summary judgment motions” and that “to retain any

protected status for documents attached to a summary judg-

ment motion, the proponent must meet the ‘compelling rea-

sons’ standard and not the lesser ‘good cause’ determination.”

In response to this articulation of the controlling standard,

the City and United States both sought reconsideration. The

City’s motion did not set forth “compelling reasons” to keep

its documents secret. Instead, it asserted that the magistrate

judge had not given the City enough notice to make such a

showing. Similarly the United States’ submission detailed no

compelling reasons, arguing only that the Honolulu Adver-

tiser had not objected to the United States’ proposed redac-

tions.

In an order dated January 22, 2004, the magistrate judge

directed the production of most of the City’s documents that

were under seal. The magistrate judge reasoned that an inter-

vening change in controlling law, the Foltz case, compelled

her to reconsider and conclude that almost all of the docu-

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5399

ments attached to the dispositive motions should be unsealed

because no “compelling reason” rebutted the presumption of

public access. After an in camera inspection of the sealed

documents, described as an “exhausting if not exhaustive”

process, the magistrate judge held that there was no good

cause to keep sealed most of the other materials, mainly non-

dispositive motions and attachments. The magistrate judge

displayed the fruits of her in camera labors in three detailed

indices attached to the order—Exhibits A, B and C.1

As to the United States, in an order dated January 28, 2004,

the magistrate judge required the unsealing of all the docu-

ments the United States had asked to keep protected, granting

redactions related to the home addresses and Social Security

numbers of law enforcement officers and Kamakana. No

detailed index was necessary because the United States

requested redaction of a manageable number of documents,

all of which were attached to dispositive pleadings.

1

Exhibit A, entitled “Documents Submitted for In Camera Review,” is

a 19-page index listing all documents the City wanted sealed or redacted,

and specific rulings as to each of the 121 documents. Each document fell

into one of three categories: (1) to be unsealed because the City had not

shown good cause; (2) to be unsealed because it was attached to a disposi-

tive pleading; or (3) to be redacted because the City had shown good

cause. Eight documents were in the third group.

Exhibit B, entitled “Attachments to Dispositive Motions,” is an 18-page

index describing (1) each of the 85 documents the City sought to keep

sealed or redact that were attached to dispositive pleadings, (2) the rele-

vant dispositive pleading, and (3) the magistrate judge’s ruling as to each

document—either “no compelling reason” or the page number and spe-

cific information to be redacted because compelling reasons had been

presented. Three of the documents were to be redacted.

Exhibit C, entitled “Pleadings & Attachments To Be Unsealed,” is a 24-

page index listing each pleading to be unsealed by docket number and

document title. The index explains which documents attached to each of

the 72 pleadings would be redacted. Four pleadings had attachments that

were to be redacted and replaced.

5400 KAMAKANA v. CITY AND COUNTY OF HONOLULU

The magistrate judge ordered the record unsealed by Febru-

ary 5, 2004. In advance of the deadline, the City, with the

United States as amicus curiae, requested an emergency stay,

which we granted. We also granted the United States’ motion

for intervention on appeal.

ANALYSIS

The broad issue before us is whether the magistrate judge2

abused her discretion in determining that continued secrecy

was no longer warranted for almost all of the documents cur-

rently under seal.3 To answer the question, we first provide a

general overview of the common law right of access to judi-

cial records and then consider whether the documents the City

and the United States seek to protect are subject to the right

of access.

I. OVERVIEW OF THE RIGHT OF ACCESS TO JUDICIAL

RECORDS

[1] Historically, courts have recognized a “general right to

inspect and copy public records and documents, including

judicial records and documents.” Nixon v. Warner Commc’ns,

Inc., 435 U.S. 589, 597 & n.7 (1978). This right is justified

2

We have jurisdiction to hear this appeal directly from the magistrate

judge’s order because two conditions are met: (1) the district court explic-

itly designated a magistrate to conduct a jury trial or proceed to final judg-

ment, and (2) the parties explicitly consented to magistrate judge

jurisdiction. 28 U.S.C. § 636(c)(1); Alaniz v. Cal. Processors, Inc., 690

F.2d 717, 720 (9th Cir. 1982). The Honolulu Advertiser and the United

States, as limited intervenors, are not parties whose consent is required for

appellate jurisdiction. Cf. San Jose Mercury News, Inc. v. U.S. Dist. Ct.,

187 F.3d 1096, 1100 (9th Cir. 1999); Beckman Indus., Inc. v. Int’l Ins.

Co., 966 F.2d 470, 473 (9th Cir. 1992).

3

We review for abuse of discretion both the decision to modify the pro-

tective order, Phillips v. General Motors Corp., 307 F.3d 1206, 1210 (9th

Cir. 2002), and the decision to unseal the judicial record, San Jose Mer-

cury News, 187 F.3d at 1102.

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5401

by the interest of citizens in “keep[ing] a watchful eye on the

workings of public agencies.” Id. at 598. Such vigilance is

aided by the efforts of newspapers to “publish information

concerning the operation of government.” Id.

Nonetheless, access to judicial records is not absolute. A

narrow range of documents is not subject to the right of public

access at all because the records have “traditionally been kept

secret for important policy reasons.” Times Mirror Co. v.

United States, 873 F.2d 1210, 1219 (9th Cir. 1989). Our case

law has identified two categories of documents that fall in this

category: grand jury transcripts and warrant materials in the

midst of a pre-indictment investigation. Id.

[2] Unless a particular court record is one “traditionally

kept secret,” a “strong presumption in favor of access” is the

starting point. Foltz, 331 F.3d at 1135 (citing Hagestad v.

Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995)). A party seek-

ing to seal a judicial record then bears the burden of overcom-

ing this strong presumption by meeting the “compelling

reasons” standard. Foltz, 331 F.3d at 1135. That is, the party

must “articulate[ ] compelling reasons supported by specific

factual findings,” id. (citing San Jose Mercury News, Inc. v.

U.S. Dist. Ct., 187 F.3d 1096, 1102-03 (9th Cir. 1999)), that

outweigh the general history of access and the public policies

favoring disclosure, such as the “ ‘public interest in under-

standing the judicial process.’ ” Hagestad, 49 F.3d at 1434

(quoting EEOC v. Erection Co., 900 F.3d 168, 170 (9th Cir.

1990)). In turn, the court must “conscientiously balance[ ] the

competing interests” of the public and the party who seeks to

keep certain judicial records secret. Foltz, 331 F.3d at 1135.

After considering these interests, if the court decides to seal

certain judicial records, it must “base its decision on a com-

pelling reason and articulate the factual basis for its ruling,

without relying on hypothesis or conjecture.” Hagestad, 49

F.3d at 1434 (citing Valley Broadcasting Co. v. U.S. Dist. Ct.,

798 F.2d 1289, 1295 (9th Cir. 1986)).

5402 KAMAKANA v. CITY AND COUNTY OF HONOLULU

In general, “compelling reasons” sufficient to outweigh the

public’s interest in disclosure and justify sealing court records

exist when such “court files might have become a vehicle for

improper purposes,” such as the use of records to gratify pri-

vate spite, promote public scandal, circulate libelous state-

ments, or release trade secrets. Nixon, 435 U.S. at 598; accord

Valley Broadcasting Co., 798 F.2d at 1294. The mere fact that

the production of records may lead to a litigant’s embarrass-

ment, incrimination, or exposure to further litigation will not,

without more, compel the court to seal its records. Foltz, 331

F.3d at 1136.

[3] We acknowledged explicitly in San Jose Mercury

News, 187 F.3d at 1102, and later confirmed in Foltz, 331

F.3d at 1136, that the strong presumption of access to judicial

records applies fully to dispositive pleadings, including

motions for summary judgment and related attachments. We

adopted this principle of disclosure because the resolution of

a dispute on the merits, whether by trial or summary judg-

ment, is at the heart of the interest in ensuring the “public’s

understanding of the judicial process and of significant public

events.” Valley Broadcasting, 798 F.2d at 1294; accord Foltz,

331 F.3d at 1135-36 (noting that “ ‘summary judgment adju-

dicates substantive rights and serves as a substitute for trial’ ”)

(quoting Rushford v. The New Yorker Magazine, 846 F.2d

249, 252 (4th Cir. 1988)). Thus, “compelling reasons” must

be shown to seal judicial records attached to a dispositive

motion. Foltz, 331 F.3d at 1136. The “compelling reasons”

standard is invoked even if the dispositive motion, or its

attachments, were previously filed under seal or protective

order. Id. (“[T]he presumption of access is not rebutted where

. . . documents subject to a protective order are filed under

seal as attachments to a dispositive motion. The . . . ‘compel-

ling reasons’ standard continues to apply.”) (internal citations

omitted).

[4] We have, however, “carved out an exception to the pre-

sumption of access” to judicial records, Foltz, 331 F.3d at

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5403

1135, for a “sealed discovery document [attached] to a non-

dispositive motion,” such that “the usual presumption of the

public’s right of access is rebutted.” Phillips v. General

Motors Corp., 307 F.3d 1206, 1213 (9th Cir. 2002) (emphasis

added). There are, as we explained in Foltz, “good reasons to

distinguish between dispositive and nondispositive motions.”

331 F.3d at 1135. Specifically, the public has less of a need

for access to court records attached only to non-dispositive

motions because those documents are often “ ‘unrelated, or

only tangentially related, to the underlying cause of action.’ ”

Id. (quoting Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33

(1984)).

The public policies that support the right of access to dispo-

sitive motions, and related materials, do not apply with equal

force to non-dispositive materials. Phillips, 307 F.3d at 1213.

We reasoned in Phillips that when a district court grants a

protective order to seal documents during discovery, “it

already has determined that ‘good cause’ exists to protect this

information from being disclosed to the public by balancing

the needs for discovery against the need for confidentiality.”

Id. The application of a strong presumption of access to

sealed records, not directly relevant to the merits of the case,

would eviscerate the “broad power of the district court to

fashion protective orders.” Id. Thus a “particularized show-

ing,” Foltz, 331 F.3d at 1138, under the “good cause” stan-

dard of Rule 26(c) will “suffice[ ] to warrant preserving the

secrecy of sealed discovery material attached to nondisposi-

tive motions.” Id. at 1135.

[5] In sum, we treat judicial records attached to dispositive

motions differently from records attached to non-dispositive

motions. Those who seek to maintain the secrecy of docu-

ments attached to dispositive motions must meet the high

threshold of showing that “compelling reasons” support

secrecy. Id. at 1136. A “good cause” showing under Rule

26(c) will suffice to keep sealed records attached to non-

dispositive motions. Id. at 1135.

5404 KAMAKANA v. CITY AND COUNTY OF HONOLULU

It is important to emphasize the difference between the

“compelling reasons” standard and the “good cause” standard,

especially because the City suggests that they essentially col-

lapse in this case.4 A “good cause” showing will suffice to

seal documents produced in discovery. Fed. R. Civ. P. 26(c)

(stating that if “good cause” is shown in discovery, a district

court may issue “any order which justice requires to protect

a party or person from annoyance, embarrassment, oppres-

sion, or undue burden or expense”). Rule 26(c) gives the dis-

trict court much flexibility in balancing and protecting the

interests of private parties. Id.

[6] A “good cause” showing will not, without more, satisfy

a “compelling reasons” test. See Foltz, 331 F.3d at 1135-36;

Phillips, 307 F.3d at 1212 (observing that even if a court finds

“good cause” under Rule 26(c) to seal a document, it must

still determine whether the common law right of access com-

pels production). Different interests are at stake with the right

of access than with Rule 26(c); with the former, the private

interests of the litigants are not the only weights on the scale.

Unlike private materials unearthed during discovery, judicial

records are public documents almost by definition, and the

public is entitled to access by default. See Nixon, 435 U.S. at

4

Acknowledging that “compelling reasons” are required to keep under

seal dispositive motions and attachments, the City argues that a previous

showing of “good cause” suffices to satisfy the more demanding “compel-

ling reasons” test. The City notes that it already had shown “good cause”

before the January 22, 2004 order and that such a showing sufficed to keep

its documents sealed under the “compelling reasons” standard.

The City also argues that the magistrate judge, in analyzing “good

cause,” had been analyzing “compelling reasons” all along without know-

ing it. Thus, the City maintains that the “very factors the Magistrate Judge

used to determine ‘good cause’ were, by her own definition, identical to

the factors to establish ‘compelling reasons’ ” and that “where the Magis-

trate Judge found ‘good cause’ . . . , she must necessarily also have found

‘compelling reasons’ to protect the sealed documents. The difference, in

this particular case, is one of lexicon.” But, as we explain, the difference

between the two standards is not merely semantic.

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5405

597. This fact sharply tips the balance in favor of production

when a document, formerly sealed for good cause under Rule

26(c), becomes part of a judicial record. Thus a “good cause”

showing alone will not suffice to fulfill the “compelling rea-

sons” standard that a party must meet to rebut the presump-

tion of access to dispositive pleadings and attachments.5

Having in mind these differences in the nature of the sealed

filings and the applicable standards, we bifurcate our analysis,

first considering records to which the “compelling reasons”

standard applies—the documents attached to dispositive

motions that the City and United States seek to keep sealed.

We then analyze records to which the “good cause” standard

applies—the documents attached to non-dispositive motions

that the City alone seeks to keep sealed.

II. DISPOSITIVE MOTIONS—DOCUMENTS COVERED BY THE

“COMPELLING REASONS” STANDARD

A. THE CITY

[7] Under our precedent, the City was required to present

“articulable facts” identifying the interests favoring continued

5

Perhaps based on its misconception of the overlap between the “com-

pelling reasons” and “good cause” standards, the City mistakenly argues

that the magistrate judge’s decisions were inconsistent because certain

materials she found “compelling reasons” to withhold were similar to

other materials she ordered unsealed. The City observes that “for reasons

unstated and unclear” the magistrate judge protected significant portions

of the depositions of two former CIU detectives, but ordered the unsealing

of depositions of 32 other witnesses who offered similar details about the

case.

But the City failed to note a crucial difference between the depositions

that will stay sealed and those that will be unsealed—the unsealed deposi-

tions were attached to dispositive motions. The depositions of the two for-

mer CIU officers were not attached to dispositive pleadings, and thus the

lesser “good cause” showing sufficed to keep these depositions sealed. See

Phillips, 307 F.3d at 1213.

5406 KAMAKANA v. CITY AND COUNTY OF HONOLULU

secrecy, Foltz, 331 F.3d at 1136 (internal citation omitted),

and to show that these specific interests overcame the pre-

sumption of access by outweighing the “public interest in

understanding the judicial process.” Hagestad, 49 F.3d at

1434 (citation omitted). Instead, the City complains that it had

no chance to present compelling reasons, and that the magis-

trate judge failed “to even permit . . . a fair opportunity to be

heard on the matter.”

[8] But, in fact, the City did have a chance to show “com-

pelling reasons” and squandered it. In the October 2003 order,

the magistrate judge explicitly asked for motions for reconsid-

eration of her order adopting the special master’s report. She

pointed to the issuance of Foltz, observing that “the Court

concludes that, in order to retain any protected status for doc-

uments attached to a summary judgment motion, the propo-

nent must meet the ‘compelling reasons’ standard and not the

lesser ‘good cause’ determination.” Rather than identifying or

even attempting to articulate “compelling reasons,” the City’s

motion to reconsider simply objected that the City was not

given enough time to articulate such “compelling reasons.”6

The City further argues that the magistrate judge failed to

articulate reasons for unsealing the record even though it was

the City’s burden to articulate reasons for sealing the record,

claiming that the January 22, 2004 order “deprived [the City]

6

Perhaps as the result of its apparent misapprehension of what was nec-

essary to overcome the presumption of access, some of the City’s argu-

ments suggest that it conflated principles applicable to the right of access.

One section of its brief is titled “The Magistrate Judge Erred by Unsealing

Dispositive Pleadings and Attachments Which Included Traditionally Pro-

tected Information, Filed Under Seal Pursuant to a Protective Order For

Which Good Cause Had Been Shown.” This approach implies a relation-

ship between the concept of “traditionally kept secret” and the “good

cause” standard under Rule 26(c). Elsewhere, the City suggested that the

“traditionally kept secret” and “compelling reasons” standards were inter-

changeable: “Foltz required the Magistrate Judge to examine the docu-

ments to determine whether traditional protections and compelling reasons

to protect the sealed documents existed.”

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5407

of a meaningful discussion and analysis by the Magistrate

Judge, of the factors she considered in her ‘compelling rea-

sons’ determination.” This proposed approach is upside down.

The judge need not document compelling reasons to unseal;

rather the proponent of sealing bears the burden with respect

to sealing. A failure to meet that burden means that the default

posture of public access prevails.

Even so, the magistrate judge did not summarily order the

production of the City’s documents. Rather, she conducted an

“exhausting if not exhaustive” in camera review of the materi-

als.7 After this review, the magistrate judge noted that “the

testimony and documents attached to the dispositive motions

do not contain information that could be used for ‘scandalous

or libelous’ purposes,” and that these documents did not con-

tain sensitive personal information. She also determined that

deposition testimony on confidential informants and criminal

investigations was “years old” and “largely resulted in crimi-

nal indictments which were made public over three years

ago.” She found, however, that the personal information of

Kamakana and various law enforcement officers (home

addresses and social security numbers) met the “compelling

reason” standard.

7

In Foltz, we rejected the argument that an in camera review was an

inadequate procedure for determining whether sealed records contain con-

fidential information:

[T]here are few, if any, alternatives to in camera inspection that

do not defeat the purpose of the rules and privileges protecting

confidential material. As a result, we rely in the first instance

upon the district court conducting the in camera inspection to

assess critically the arguments of the party opposing disclosure.

Meaningful appellate review, made possible by the district

court’s articulation of compelling reasons for its decision sup-

ported by specific factual findings, provides a second line of

defense.

331 F.3d at 1136 n.6 (citations omitted).

5408 KAMAKANA v. CITY AND COUNTY OF HONOLULU

It is difficult to know what more detail the magistrate judge

could have provided in addressing the City’s request to keep

these documents sealed, especially since the City itself never

provided specific “compelling reasons” to grapple with and

consider. When sealing documents attached to a dispositive

pleading, a district court must “base its decision on a compel-

ling reason and articulate the factual basis for its ruling, with-

out relying on hypothesis or conjecture.” Hagestad, 49 F.3d

at 1434. In the absence of specifically articulated reasons,

“meaningful appellate review is impossible.” Id. at 1435.8 It

makes little sense, however, to require the same specificity

where the court is simply effectuating the presumption of

public access by unsealing documents covered by a blanket

protective order.

[9] A review of the record points up the inadequacy of the

City’s declarations, which largely make conclusory state-

ments about the content of the documents—that they are con-

fidential and that, in general, their production would, amongst

other things, hinder CIU’s future operations with other agen-

cies, endanger informants’ lives, and cast HPD officers in a

false light. These conclusory offerings do not rise to the level

of “compelling reasons” sufficiently specific to bar the public

access to the documents. Under these circumstances, and

given the detail of the judge’s analysis and the case law, we

conclude that the magistrate judge did not abuse her discre-

tion in declining to seal the documents attached to summary

judgment motions.9

8

See also Kasza v. Browner, 133 F.3d 1159, 1175 (9th Cir. 1998)

(remanding and requiring the court provide a statement of reasons “should

it determine in its discretion to leave the seal in place”); Erection Co., 900

F.2d at 170 (remanding case in which the district court sealed a consent

decree because “the record gives no hint of whether the court considered

any or all . . . factors and arguments”).

9

It bears noting that because the parties de facto sealed the record

through their stipulated protective order, it is easy to get mixed up both

in articulating the burden and the result. For example, as a consequence

of this posture, the orders relate to unsealing documents. Thus, the parties

were often arguing why documents that were sealed should not be

unsealed. The effective bottom line is that the district court was determin-

ing whether documents should be sealed.

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5409

B. THE UNITED STATES

In appealing the magistrate judge’s order, the United States

requested a limited number of specific redactions of docu-

ments filed with dispositive motions. These redactions have

the virtue of being limited and clear, identifying specific

names or references to be kept secret. The problem is the

broad, categorical approach the United States took to justify

these redactions. It asserted a blanket rule that, as a non-party

to the litigation, it was entitled to rely on the protections of

the stipulated protective order. Although the United States

proposed specific redactions, it justified them by invoking

general categories of privileges without elaboration. Finally,

the United States claimed that it sought redactions for infor-

mation that was “traditionally kept secret.”

1. Non-Party Reliance on Protective Order

[10] The United States argues that, as a non-party to the lit-

igation, it relied on the stipulated protective order when con-

senting to provide depositions of federal witnesses and

documents, and that such reliance constituted a compelling

reason sufficient to overcome the presumption of access. We

have no such categorical rule regarding protective orders. To

the contrary, we have held that a non-party’s reliance on a

blanket protective order is unreasonable and is not a “compel-

ling reason” that rebuts the presumption of access. Foltz, 331

F.3d at 1138; Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d

470, 475-76 (9th Cir. 1992) (noting that “[t]he extent to which

a party can rely on a protective order should depend on the

extent to which the order induced the party to allow discov-

ery” and that reliance on a “stipulated . . . blanket protective

order” does not justify sealing court records).

[11] 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 Rule

5410 KAMAKANA v. CITY AND COUNTY OF HONOLULU

26(c). Like many pretrial protective orders, the judge signed

off on the order without the benefit of making an individual-

ized determination as to specific documents. The order here

was geared primarily to discovery, but with a recognition that

confidential documents may find their way into a court file or

be used at trial. For example, in addition to recognizing that

the court could modify the order at any time for “good cause,”

the order required that the parties obtain a court order to file

materials under seal. Thus, the United States should have

been on notice that confidential categorization of discovery

documents under the protective order was not a guarantee of

confidentiality, especially in the event of a court filing.

Although the magistrate judge “expressly approved and

entered the protective order,” the order contained no good

cause findings as to specific documents that would justify

reliance by the United States. See Beckman, 966 F.2d at 476.

Thus, the claimed reliance on the order is not a “compelling

reason” that rebuts the presumption of access. See Foltz, 331

F.3d at 1138.

2. Specificity of Compelling Reasons

Although the United States identifies the redactions it seeks

by page number and line number, it does not provide similarly

specific compelling reasons to justify these redactions.

Instead, the United States purports to justify each redaction by

listing one of four general categories of privilege (privacy,

law enforcement, confidential source, and ongoing investiga-

tion). Simply mentioning a general category of privilege,

without any further elaboration or any specific linkage with

the documents, does not satisfy the burden.

[12] We note that these redactions and justifications are the

same ones the United States offered under the good cause

standard of Rule 26(c). The government took no steps to

explain how these asserted privileges also met the more

demanding “compelling reasons” standard. As we explained

in Foltz, a “good cause” showing without more will not sat-

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5411

isfy a “compelling reasons” test. See id. at 1135-36. Because

the United States simply resubmitted its good cause showing

without more, the magistrate judge was well within her discre-

tion to deny the redactions it sought under the compelling rea-

sons standard.

A review of the United States’ proposed redactions sup-

ports the decision to unseal the records. For example, many

names or references for which the United States sought redac-

tion were either already publicly available or were available

in other documents being produced to the Honolulu Adver-

tiser. The magistrate judge noted an example of this phenome-

non: The United States sought redactions for references to

Marirose Tangi and Gabriel Aio even though both were men-

tioned by name in a press release issued by the United States

Attorney’s Office for the District of Hawaii.

There are more examples. In one set of redactions, the

United States sought to delete deposition references to events

and persons mentioned by name in Kamakana’s complaint.

Another set of redactions would delete the names of persons,

referred to only by code name in Kamakana’s complaint,

whose depositions (and names) were ordered produced before

the United States’ proposed redactions.10 Finally, another pro-

posed redaction was based on the “ongoing investigation”

privilege even though the name of the operation was refer-

enced several times without redaction on the same page.

In her order, the magistrate judge acknowledged the nature

of Kamakana’s claims and concluded that “the testimony and

documents concerning this matter are of significant public

10

For instance, the United States sought to seal any mention of the real

name of the person identified as “A.B.” in Kamakana’s complaint. Yet

“A.B.” was deposed during discovery, and the deposition transcript listed

under A.B.’s real name was marked for unsealing by the special master in

2003, long before the magistrate judge denied the United States the redac-

tion in January 2004.

5412 KAMAKANA v. CITY AND COUNTY OF HONOLULU

concern.” She also determined that the testimony and docu-

ments did not contain “sensitive personal information” or

information that would be used for “scandalous or libelous”

purposes. Finally, as to the documents she ordered to remain

sealed, the magistrate judge concluded that disclosure of the

officers’ home address and social security numbers could

expose the officers and their families to harm or identify theft.

3. “Traditionally Kept Secret” as Justification

[13] The United States suggests that documents subject to

the privacy, law enforcement, and official information privi-

leges are “traditionally kept secret” and therefore subject to

seal.11 These privileges do not automatically fall within the

“traditionally kept secret” exception. This phrase is a term of

art specific to the right of access; a class of documents is cov-

ered by that term if there is “neither a history of access nor

an important public need justifying access.” Times Mirror,

873 F.2d at 1219 (emphasis added). Few documents are cate-

gorized thus because the consequences are drastic—“there is

no right of access to documents which have traditionally been

kept secret for important policy reasons,” id., meaning that a

party need not show “compelling reasons” to keep such

records sealed.

[14] Thus far, we have identified two types of documents

as “traditionally kept secret”: grand jury transcripts and war-

rant materials during the pre-indictment phase of an investiga-

tion. Id. Though these documents may roughly fall into the

category of law enforcement, they are very specific types of

documents that warrant the highest protection. We do not

readily add classes of documents to this category simply

because such documents are usually or often deemed confiden-

tial.12 Indeed, even the documents we have identified as “tra-

11

The City also puts forth this argument.

12

Cf. U.S. v. Schlette, 842 F.2d 1574, 1583 (9th Cir. 1988) (“We agree

that presentence reports are confidential documents. But ‘confidentiality’

is not some talismanic utterance that can justify a refusal to disclose the

contents of a presentence report when a sufficient showing supporting dis-

closure has been made.”).

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5413

ditionally kept secret” are not sacrosanct.13 Simply invoking

a blanket claim, such as privacy or law enforcement, will not,

without more, suffice to exempt a document from the public’s

right of access.

[15] Neither will it suffice to show, as the United States

argues, that a document merits sealing because it would be

exempt from disclosure under the Freedom of Information

Act (FOIA), 5 U.S.C. § 552. Such exempt documents are not

automatically privileged in civil discovery. See Friedman v.

Bache Halsey Stuart Shields, Inc., 738 F.2d 1336, 1344 (D.C.

Cir. 1984) (“If information in government documents is

exempt from disclosure to the general public under FOIA, it

does not automatically follow the information is privileged

. . . and thus not discoverable in civil litigation.”). “It is

unsound to equate the FOIA exemptions and similar discov-

ery privileges” because the two schemes serve different pur-

poses. Id. FOIA is a statutory scheme directed to regulating

the public access to documents held by the federal govern-

ment; the public’s “need” for a document is unrelated to

whether it will be disclosed. See Maricopa Audubon Soc’y v.

United States Forest Serv., 108 F.3d 1082, 1087 (9th Cir.

1997). By contrast, the public right of access to court docu-

ments is grounded on principles related to the public’s right

and need to access court proceedings. See Friedman, 738 F.2d

at 1344. Thus, we will not import wholesale FOIA exemp-

tions as new categories of documents “traditionally kept

secret” under Times Mirror.

III. NON-DISPOSITIVE MOTIONS—DOCUMENTS COVERED BY

THE“GOOD CAUSE” STANDARD

Finally, we address the magistrate judge’s decision to

13

See, e.g., In re Special Grand Jury (for Anchorage, Alaska), 674 F.2d

778, 782 (9th Cir. 1982) (“It is sometimes possible for a nonparty to a

grand jury proceeding to obtain access even to the transcripts of those pro-

ceedings.”).

5414 KAMAKANA v. CITY AND COUNTY OF HONOLULU

unseal the documents attached to non-dispositive motions.

The City claims that in adopting the reports of the special

master, the magistrate judge made a good cause determination

to which she was bound by the law of the case. Under the

City’s theory, the judge was thus precluded from undertaking

a later review and reclassification of the documents.

Under the law of the case doctrine, a court “is generally

precluded from reconsidering an issue previously decided by

the same court . . . in the identical case.” United States v.

Lummi Indian Tribe, 235 F.3d 443, 452 (9th Cir. 2000) (citing

Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703,

715 (9th Cir. 1990)). Nonetheless, a trial judge has broad dis-

cretion to reconsider her own interlocutory, pre-trial evidenti-

ary rulings, particularly when no jury trial is involved. See

Amarel v. Connell, 102 F.3d 1494, 1515, 1516 (9th Cir. 1996)

(“ ‘[T]he interlocutory orders and rulings made pre-trial by a

district judge are subject to modification by the district judge

at any time prior to final judgment . . . .’ ”) (quoting In re

United States, 733 F.2d 10, 13 (2d Cir. 1984)). In Amarel, we

faced the “delicate problem of two district judges exercising

their ‘broad discretion’ over evidentiary rulings in different

phases of the same case and reaching contradictory results.”

Id. at 1515. We held that it was not an abuse of discretion for

the second district judge to allow the admission of evidence

prohibited by the first district judge, id. at 1516, because

“[t]here is ‘no imperative duty to follow the earlier [evidenti-

ary] ruling—only the desirability that suitors shall, so far as

possible, have reliable guidance how to conduct their

affairs.’ ” Id. at 1515 (quoting In re United States, 733 F.2d

at 13).

Here, no law of the case is at issue, nor do we have a “deli-

cate problem” of conflict between the rulings of two district

judges. Instead we have the magistrate judge’s further review

of the special master’s discovery findings, which are always

subject to court review.

KAMAKANA v. CITY AND COUNTY OF HONOLULU 5415

The magistrate judge initially approved, without commen-

tary, two reports by the special master, of May 2003 and Sep-

tember 2003, sealing certain documents of the City for good

cause. In her October 2003 order adopting the special mas-

ter’s September 2003 report, the judge laid out a procedure

for reconsideration and/or clarification of the report. In addi-

tion, the order sets out controlling precedent, including the

then-recent Foltz decision from this court. Finally, the judge

wrote that “[t]he parties should be well aware that, by his

findings in the Report adopted by this Court, the Master has

made the ‘good cause’ determination and, absent an abuse of

discretion, this Court will not set aside that determination.”

After the City moved for reconsideration of the special

master’s report, the magistrate judge meticulously reviewed

every document for which confidentiality was sought and per-

formed her own, independent “good cause” analysis. In her

January 22, 2004 order requiring the City to unseal most of

those documents, including the ones the special master had

found good cause to keep sealed, she concluded that the City

“[had] not made the requisite showing of good cause except

as to those documents containing Plaintiff’s medical records.”

She examined each of the reasons presented by the City—the

deliberative process privilege, the law enforcement privilege,

the official information privilege, privacy interests, and

embarrassment—and found that none of these had been

asserted with sufficient particularity, noting that “City Defen-

dants’ arguments fail to demonstrate any specific prejudice or

harm.”

[16] The City seeks to cast this comprehensive review in a

negative light by suggesting that the decision to overrule the

special master was somehow unfair or unwarranted. To the

contrary, we embrace the judge’s decision to carefully review

every document in light of the change in intervening law and

in the face of the somewhat tepid and general justifications

offered for sealing the documents. It also bears noting that the

parties were always on notice, by virtue of the protective

5416 KAMAKANA v. CITY AND COUNTY OF HONOLULU

order itself and an order entered by the district judge, that

“[t]he court reserves the right to unseal materials . . . if . . .

the court determines that they should be available to the pub-

lic or otherwise do not merit sealed status.” The judge took

seriously the presumption of public access and did so in

accord with precedent from the Supreme Court and this court.

Given these facts, we “will not second guess the exercise of

the considerable discretion” allowed her. Amarel, 102 F.3d at

1516. We hold that the magistrate judge did not abuse her dis-

cretion in ordering the City to produce documents attached to

non-dispositive motions.

AFFIRMED.