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VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Sealed Libel Case with Sealed Emergency Anti-Libel Injunction

How much do you trust judges to make such decisions without public scrutiny?

On April 25, 2017, Packers Sanitation Services—"the nation's largest cleaning contractor to the food industry," according to a somewhat critical recent Bloomberg storysued one Armando Acosta (who had apparently used the pseudonym Adrian Koetano) for defamation, in Oklahoma state court in Garfield County. It asked that the case be sealed, and immediately got an order sealing it. It also got a temporary restraining order, that very day. It got this order without the defendant having filed anything, and apparently without the defendant even being served.

Two days later, the temporary restraining order was turned into a temporary injunction. Acosta didn't appear in the case, so a month later there was a default judgment, which likely converted the temporary injunction into a permanent one.

Injunction against what? Did it order Acosta to stop saying certain things about Packers? Did it purport to order that hosting companies remove any alleged libels that Acosta had posted? (I've seen many orders that purport to do that, even when the hosting companies were never named as defendants.) What was the alleged defamation? I don't know, because the case is sealed. All I know is that the docket lists it as a libel / slander case, so presumably the case is all about shutting Acosta up about something.

Now it is of course quite possible that Acosta was a libeler, or even an extortionist. And, as some commenters on past posts in which I've discussed sealed cases have noted, sealing a case may be necessary to keep the libel (if it is a libel) from further spreading as news outlets report on the lawsuit. If your goal is solely to minimize the damage of libels, then it makes sense to have most libel cases be tried under seal.

But the question, I think, is: Do we trust judges to make these decisions (including decisions about which speech is libelous and thus should be suppressed) without public scrutiny? The U.S. court system's answer is generally no. As the Court held with regard to criminal trials in Richmond Newspapers, Inc. v. Virginia (1980),

[Openness gives] assurance that the proceedings were conducted fairly to all concerned, and it discourage[s] perjury, the misconduct of participants, and decisions based on secret bias or partiality....

People in an open society do not demand infallibility from their institutions, but it is difficult for them to accept what they are prohibited from observing.

Lower courts have held the same as to civil trials, and as to motions and orders in civil pretrial proceedings. I myself have routinely relied on publicly accessible documents in finding various libel cases where parties have successfully duped courts, including through coming up with fake defendants, forging notarization stamps, and more. And there are many other ways in which courts can err; openness helps find, expose, and correct such errors. "Trust but verify," as we Russians say. (Actually, in Russian, that phrase rhymes.)

What's more, many state legislatures, including Oklahoma's, have likewise recognized the importance of public scrutiny; indeed, Okla. Stats. § 51-24A.30 expressly provides (emphasis added),

All court records, as defined by Section 32.1 of Title 12 of the Oklahoma Statutes, shall be considered public records and shall be subject to the provisions of the Oklahoma Open Records Act, unless otherwise identified by statute to be confidential. If confidentiality is not required by statute, the court may seal a record or portion of a record only if a compelling privacy interest exists which outweighs the public's interest in the record. In all cases where the court is sealing a record or portion of a record, the court shall enter an order which shall be public and shall:
[1.] Make findings of fact which identify the facts which the court relied upon in entering its order;
[2.] Make conclusions of law specific enough so that the public is aware of the legal basis for the sealing of the record;
[3.] Utilize the least restrictive means for achieving confidentiality; and
[4.] Be narrowly tailored so that only the portions of the record subject to confidentiality are sealed and the remainder of the record is kept open.

Yet this case does not have any such publicly available order explaining the compelling basis for the sealing. Perhaps the Order Granting Plaintiff's Motion to Seal contains that explanation—but it is itself sealed. Without this explanation, members of the public (like me) can't even meaningful argue for unsealing, since we don't know the basis for the sealing.

The court appears to have erred in failing to provide such a publicly accessible order. And that's a further reminder that judges, including judges who are honestly trying their best to do their job, do err, and that public scrutiny is often needed to spot errors.

For this reason, I just filed a motion to at least unseal the sealing order, which I hope will help me unseal the other documents; I enclose the motion below. It will be interesting to see the outcome of this case, and the several other unsealing cases I have pending right now (such as the one I blogged about Monday), and what appellate courts eventually end up saying about the various attempts to litigate libel cases in the dark.

* * *

Motion of Eugene Volokh to Intervene and to Unseal the Order Granting Plaintiff's Motion to Seal All Documents (filed Apr. 25, 2017)

Eugene Volokh moves to intervene in this case for the limited purpose of moving to unseal records. He also moves, under the Open Records Act, to have this Court unseal the Order Granting Plaintiff's Motion to Seal All Documents (filed Apr. 25, 2017).

If he is given access to that Order, he may later move to unseal other documents as well, but any such motion would turn on what is said in the Apr. 25, 2017 order. Because he is in Los Angeles, and is proceeding pro se, he requests that the motion be heard telephonically, or be considered without oral argument.

Volokh is Professor of Law at UCLA School of Law, where he specializes in the First Amendment and in Internet law. Among other things, he writes about libel cases such as this one. He also publishes a weblog at the Reason Magazine site (http://reason.com/volokh); from 2014 to 2017, it was at the Washington Post site (http://washingtonpost.com/news/volokh-conspiracy). He is thus a member of the media as well as an interested citizen. Volokh would like to write about this case, as part of his continuing coverage of Internet libel cases and of sealing orders. But he cannot do so, because all the critical documents are sealed.

Volokh discussed his plans to file this motion with counsel for plaintiff, but counsel has not yet informed him whether plaintiff opposes the motion. Because defendant Armando Acosta's contact information is not in the file, and the documents that seem likely to contain the information (such as the Summons returned on April 27, 2017) are sealed, he was unable to serve the motion on the defendant.

Brief

[I.] Volokh is entitled to intervene in order to move to unseal

Volokh is entitled to intervene in this case. Indeed, in Shadid v. Hammond, 2013 OK 103, ¶ 1, 315 P.3d 1008, 1008 (Okla. 2013) (mem.), the Supreme Court concluded that the proper procedure to unseal documents was via a "motion requesting access to the referenced court file pursuant to the Open Records Act" addressed to the court that originally sealed the case.

Justice Edmondson, joined by Chief Justice Colbert (concurring in part and dissenting in part), reasoned that a mere motion was not sufficient, and intervention was also required. But there seems no doubt that such intervention should be allowed: "Because an order sealing a record" adjudicates "the public's right to the information in a public record," "limited intervention should be allowed in the principal case by one seeking to intervene to unseal a record." 2013 OK at ¶ 14, 315 P.3d at 1014 (Edmondson, J., concurring in part and dissenting in part).

[II.] The Order to Seal should be unsealed, under 51 Okla. Stat. Ann. § 24A.30

The Order to Seal was apparently sealed in error, and ought to be unsealed, because under 51 Okla. Stat. Ann. § 24A.30 (emphasis added), it "shall be public":

All court records, as defined by Section 32.1 of Title 12 of the Oklahoma Statutes, shall be considered public records and shall be subject to the provisions of the Oklahoma Open Records Act, unless otherwise identified by statute to be confidential. If confidentiality is not required by statute, the court may seal a record or portion of a record only if a compelling privacy interest exists which outweighs the public's interest in the record. In all cases where the court is sealing a record or portion of a record, the court shall enter an order which shall be public and shall:

[1.] Make findings of fact which identify the facts which the court relied upon in entering its order;

[2.] Make conclusions of law specific enough so that the public is aware of the legal basis for the sealing of the record;

[3.] Utilize the least restrictive means for achieving confidentiality; and

[4.] Be narrowly tailored so that only the portions of the record subject to confidentiality are sealed and the remainder of the record is kept open.

(Volokh assumes that the Order to Seal is the order mandated by § 24A.30, and that the order explains the rationale for sealing as well as ordering the sealing. If that Order to Seal does not include the statutorily required findings and conclusions, Volokh asks that this Court enter an order memorializing the findings and conclusions that this Court must have come to in agreeing to seal the case.)

There are no exceptions to this statutory rule, nor any room for case by case balancing. "[T]here is no provision in the Open Records Act which allows a court to balance an individual's interest in having records remain private and the public's interest in having access to the records." Nichols v. Jackson, 2001 OK CR 35, ¶ 11, 38 P.3d 228, 231 (Okla. Ct. Crim. App. 2001) (so ruling as to court records). "The Legislature has determined by statute that the public's interest is greater, except where specific statutory exemption is given," id., 2001 OK CR 35, ¶ 11, 38 P.3d at 232, or where disclosure would violate a criminal defendant's constitutional rights.

Indeed, even the agreement of the parties cannot suffice to justify sealing a record. "There are no provisions in the Oklahoma Open Records Act that allow parties to simply agree to seal a public record and submit a summary agreed order to the court. Sealing a public record should be a very rare event that occurs in only the most compelling of circumstances." Shadid, 2013 OK 103, ¶ 2, 315 P.3d at 1009 (Taylor, J., concurring, joined by Kauger, J.). Likewise, that a defendant has defaulted, and thus does not object to sealing, cannot affect the rights of the public to have access to the record.

[III.] Volokh also has a First Amendment right to access the Sealing Order

The sealing of the Sealing Order also violates the First Amendment. The First Amendment provides a qualified right of access to court records. Nichols, 2001 OK CR 35, ¶ 21, 38 P.3d 228 at 233. That qualified right (unlike the absolute right set forth by 51 Okla. Stat. Ann. § 24A.30) can be overcome by a sufficiently strong countervailing interest. But § 24A.30 makes clear that, in the view of the Oklahoma Legislature, there is no sufficient interest in keeping sealing orders sealed.

For these reasons, Volokh seeks to intervene and to unseal the Sealing Order in this case.

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  • Larvell Blanks||

    I was wondering how you could appear in an Oklahoma state court without being admitted, but I see that you are acting pro se -- Citizen Volokh rather than Lawyer Volokh. Sometimes a lawyer who represents himself doesn't have a fool for a client.

  • Eugene Volokh||

    So I like to think! Plus I don't have anything tangible really at stake here; maybe I'll screw things up and fail to get the case unsealed, but it's worth the risk.

  • SFAlphaGeek||

    Just curious, but is there a standing argument to be made - since you're not a citizen of Oklahoma, and don't (as far as I know) have any connection to the state, do you have a sufficient connection to be harmed by the Court's decision?

  • Eugene Volokh||

    1. The harm is the denial of access to court records. That's an injury to my constitutional rights, though it also indirectly affects my readers (some of whom may be Oklahomans).

    2. Perhaps for these reasons, courts have never limited the right of access to citizens of the particular state in which the case was litigated.

  • rsteinmetz||

    You mention extortion above, but wouldn't it be more effective for that to be handled under criminal law which would also counteract the negative aspects of libel?

    Someone threatening to spread false (or even true) information unless you paid them money would be extortion. It seems more proper under criminal law than a civil libel.

    Also based on the article these companies don't seem to be very sensitive to bad publicity.

  • Eugene Volokh||

    1. I've heard some suggestion that there may be an extortion prosecution, but I couldn't find any court records on it.

    2. I think a person who has actually been libeled, and is also being extorted, is entitled both to sue for libel and to complain to the police about the extortion. I just don't think they should be entitled to have either case proceed under seal.

  • Harry M Johnston||

    I seem to recall a Rumpole story about a criminal case where the alleged blackmail victim is referred to by a pseudonym in the public records. Is that something that could happen in the US?

  • GabrielSyme||

    Are there any comparable rules for sealing court records at the federal level, and could they be used to eventually limit the power of FISA at some point?

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