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Magistrate Rejects Sealing in Discrimination Lawsuit Against Novelist Nicholas Sparks and the School He Founded

A good example of a court properly protecting the public right of access to court records.

|The Volokh Conspiracy |


I've posted a good deal recently about court proceedings in which documents were, in my view, unjustifiably sealed; so I thought I'd pass along a decision from earlier this week that struck me as the right way of doing these things. It comes from Magistrate Judge Kimberly Swank, in a case where Saul Hillel Benjamin, former headmaster of the Epiphany School of Global Studies—founded by bestselling author Nicholas Sparks (The Notebook and many others)—sued Sparks and the School for alleged discrimination, defamation, and various other claims. Here's a short excerpt:

While Defendants "very well may desire that the allegations lodged against [them] in the course of litigation be kept from public view to protect [their] image[s], the First Amendment right of access does not yield to such an interest." The adjudication of claims involving embarrassing, injurious, and sensitive information such as that involved in this case is part of the "day-to-day" operations of the federal courts. Having reviewed the materials sought to be sealed and the interests articulated by Defendants, the court determines that Defendants have not shown that the circumstances here are so unusual as to overcome the First Amendment's right of access….

Indeed, if "internal business procedures," "sensitive financial information," and "employment decision-making" are deemed sufficient here to overcome the First Amendment, the court fails to see why these interests would not be invoked in every case involving an employment matter….

And a longer one:

"The public's right of access to judicial records and documents may be abrogated only in unusual circumstances." This is so because "public access promotes not only the public's interest in monitoring the functioning of the courts but also the integrity of the judiciary." …

In support of their motions to seal, Defendants identify three interests they contend are sufficient to rebut the First Amendment and which require wholesale sealing of the above-mentioned documents: (1) information relating to students; (2) information relating to internal governance and decision-making processes of Defendant School and Defendant Foundation; and (3) personnel matters relating to third parties.

Defendants also argue that Plaintiff has failed "to articulate any reason why the public needs access" to the materials sought to be sealed. "The burden to overcome a First Amendment right of access rests on the party seeking to restrict access." Furthermore, a member of the press [journalist Amanda Holpuch (who had previously published an article about this lawsuit)] has objected to the motions to seal the summary judgment materials. Lastly, this argument fails to address the judicial integrity component of the right of access. Accordingly, the court rejects this argument and turns to Defendants' asserted compelling interests.

Information Relating to Students

The court has reviewed the various documents Defendants seek to seal on the ground they reveal identifying information about students of Defendant School. Some of these documents contain the names of students; some of these documents contain the names of parents of students which could be used to deduce the identities of students; and some of these documents contain absolutely no identifying information about students. Redaction of students' names and those of their parents is practicable as to these documents and is a less drastic alternative than the wholesale sealing that Defendants request….

Internal Governance and Decision-Making Procedures

Defendants also seek to seal certain documents on the ground they reveal information about the internal governance and decision-making procedures of Defendants School and Foundation. More specifically, they contend these documents contain strategic information about the operation of their organizations (hiring and firing, recruitment of faculty and staff, donor fundraising, organizational grievance reports, regulation of student clubs, and internal finances) and that the revelation of this information would frustrate the respective organizations' purposes (i.e., to educate its students and to further the charitable aims of the Foundation).

Defendants analogize this information to strategic, internal business information which they contend courts have held to be a "higher value" sufficiently on par with a government interest to, on occasion, constitute a compelling interest sufficient to overcome the First Amendment right of access to judicial records…. [Board of Trustees Member Samuel McKinley Gray, III] states that disclosure of the documents would hinder Defendant School's recruiting and retention efforts because (1) parents would be concerned that confidential information about their children would be publicized; and (2) board members and staff would be "alarmed" that discussions and information about personnel issues, educational challenges, and student welfare would no longer be confidential. Defendant [Nicholas] Sparks indicates similar concerns as to the Foundation, noting that it would hinder donor and staff recruitment if private employment matters discussed on a "need to know" basis were disclosed.

The court shares Defendants' concern about the disclosure of the identities of the schoolchildren, and, therefore, has granted Defendants' request to redact from the documents the names and other information from which the students could be identified. However, a review of the materials sought to be sealed leads the court to conclude that these materials are overwhelmingly about the handling of a particular employment matter, namely, the circumstances leading to the termination of Plaintiff's relationship with the School and Foundation.

While Defendants "very well may desire that the allegations lodged against [them] in the course of litigation be kept from public view to protect [their] image[s], the First Amendment right of access does not yield to such an interest." The adjudication of claims involving embarrassing, injurious, and sensitive information such as that involved in this case is part of the "day-to-day" operations of the federal courts. Having reviewed the materials sought to be sealed and the interests articulated by Defendants, the court determines that Defendants have not shown that the circumstances here are so unusual as to overcome the First Amendment's right of access….

Indeed, if "internal business procedures," "sensitive financial information," and "employment decision-making" are deemed sufficient here to overcome the First Amendment, the court fails to see why these interests would not be invoked in every case involving an employment matter….

iii. Third-Party Personnel Information

The court has reviewed the various documents Defendants seek to seal on the ground they reveal personnel information about third parties. The majority of the information regards the employment of Plaintiff, which is the heart of the lawsuit. Moreover, redaction of sensitive information regarding third parties (i.e., email addresses) is a less drastic alternative than the wholesale sealing sought by Defendants and is practicable here….

[As to certain other documents], Defendant Sparks has failed to show that "countervailing interests heavily outweigh" the right of access to these judicial records. The deposition excerpts from Jenna Dueck and Thomas Plihcik contain information specifically relating to the circumstances under which Plaintiff's employment with Defendants began and ended, which is central to the lawsuit. Review of these deposition excerpts reveals no sensitive information relating to the internal governance or decision-making of the Defendant School or Defendant Foundation that would justify sealing. Moreover, aside from the very names of Ms. Dueck and Mr. Plihcik, there is no sensitive third-party information disclosed….