Free Speech

"Harm to Reputation Is Insufficient to Overcome the Strong Presumption in Favor of Public Access …"

"... , especially where, as here, the party who filed the suit alleges harm from the public availability of the record."

|The Volokh Conspiracy |

From Kiwewa v. Postmaster General, 2019 WL 4122013 (6th Cir. Mar. 26, 2019) (nonprecedential) (just recently made available on Westlaw):

In 2013, the United States Postal Service terminated [Willy] Kiwewa due to alleged performance issues and failure to follow rules and regulations. Kiwewa thereafter filed an employment-discrimination suit pursuant to Title VII of the Civil Rights Act of 1964. The parties consented to final disposition of the proceedings by a magistrate judge, who granted summary judgment in favor of the Postmaster General. We affirmed the district court's judgment.

While his appeal was pending in this court, Kiwewa filed a motion to seal the district-court record. He argued that online access to the summary-judgment order was preventing him from being hired, that his minor children could be identified through their shared last name, and that the record contained his date of birth and other sensitive information….

The public has a "presumptive right … to inspect and copy judicial documents and files[,]" and "[o]nly the most compelling reasons can justify non-disclosure of judicial records." In balancing these factors, a court may "consider, among other things, the competing interests of the defendant's right to a fair trial, the privacy rights of participants or third parties, trade secrets, and national security." Where a court concludes that a compelling reason exists to seal records, "'the seal itself must be narrowly tailored to serve that reason,' and should 'analyze in detail, document by document, the propriety of secrecy, providing reasons and legal citations.'"

The district court did not abuse its discretion. First, Kiwewa merely alleged harm to his reputation by asserting that online access to the summary-judgment order was preventing him from being hired. Harm to reputation is insufficient to overcome the strong presumption in favor of public access, especially where, as here, the party who filed the suit alleges harm from the public availability of the record.

Second, Kiwewa's assertion that his minor children could be identified through their shared last name and would suffer harm is too attenuated to constitute a compelling reason to seal the record. His children were not named or otherwise mentioned in the record.

Third, Kiwewa failed to identify accurately below any place in the record that contained his date of birth or other sensitive information. His sole reference to a page in the record that purportedly contained his date of birth was incorrect. The three citations identified for the first time in his appellate brief are not properly before the court. In any event, Kiwewa's social security number was properly redacted in the only cited document filed by the defendant. And Kiwewa waived his right to privacy protection under Federal Rules of Civil Procedure Rule 5.2(a) by filing the other two documents without redaction and without moving to file them under seal. Thus, Kiwewa did not meet his burden of overcoming the presumption of openness.

Magistrate Judge Karen L. Litkovitz's opinion below discusses this in greater detail.

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