The Volokh Conspiracy

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Volokh Conspiracy

"Essentially, [the City] Defendants Request That the Court Resolve This Case Entirely in Secret"

No dice, says the District Court.


In Brown v. City of Glendale (D. Ariz.), plaintiff is suing "for malicious prosecution (both under 42 U.S.C. § 1983 and under state law) following his acquittal in a state-court prosecution for sexual assault. Brown contends the charges arose because a member of the Glendale [Arizona] Police Department filed false police reports, lied in a search warrant affidavit and while testifying before a state grand jury, and concealed exculpatory evidence. The first trial against Brown, in 2015, resulted in an acquittal on some counts, a dismissal of some counts, and a mistrial on some counts, and the 2017 retrial resulted in an acquittal on all remaining counts."

The case remains pending, and the charges against the City have of course not been either proved or disproved, but Friday Judge Dominic W. Lanza dealt with the City defendants' sealing motion:

Pending before the Court is Defendants' motion for leave to file their summary judgment motion and exhibits thereto under seal. For the reasons stated below, the motion is denied without prejudice.

The public has a general right to inspect judicial records and documents, such that a party seeking to seal a judicial record must overcome "a strong presumption in favor of access." To do so, the party must "articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure…." The Court must then "conscientiously balance the competing interests of the public and the party who seeks to keep certain judicial records secret." "After considering these interests, if the court decides to seal certain judicial records, it must base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture." Id.

The "stringent" compelling reasons standard applies to all filed motions and their attachments where the motion is "more than tangentially related to the merits of a case." A motion for summary judgment is clearly such a motion, and the "compelling reasons" standard applies to the motion and its exhibits.

Defendants state that the motion "contains confidential medical records of testifying witnesses and privileged and confidential transcripts of grand jury testimony from Officer Gonzalez." The motion to seal is three sentences long and seeks to seal 632 pages—the entirety of the summary judgment motion and all 18 exhibits. ["Defendants City of Glendale and Lawrence Gonzalez ('Defendants') move this Court for an order directing the Clerk to file under seal their Motion for Summary Judgment. The Motion contains confidential medical records of testifying witnesses and privileged and confidential transcripts of grand jury testimony from Officer Gonzalez. Therefore, pursuant to LRCiv 5.6, Defendants move this Court for an order directing the Clerk to file under seal Defendants' Motion for Summary Judgment." -EV] Essentially, Defendants request that the Court resolve this case entirely in secret.

Defendants have not attempted to "articulate compelling reasons supported by specific factual findings that outweigh the general history of access and the public policies favoring disclosure…." Moreover, the Court notes that at least some of the exhibits the parties seek leave to file under seal seem so innocuous that the Court wonders what interest Defendants have in maintaining secrecy.

Thus, the motion is denied without prejudice. To the extent that the parties wish to try again, they must include—for each document they wish to file under seal—a specific description of the document and compelling reasons for sealing that document, supported by specific facts. The more specific and compelling the reasons and facts provided are, the more likely it is that the Court will find that compelling reasons justify sealing the documents. To the extent that only portions of certain documents might satisfy the Kamakana standard, such that Defendants wish to propose redactions, Defendants shall lodge under seal unredacted versions in which the text which Defendants wish to redact is highlighted to facilitate the Court's review.

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  1. Are some litigants seeking anonymity or privacy more equal than others?

    Does Prof. Volokh represent anonymous (or pseudonymous) litigants? Does he refrain from criticizing those circumstances?

    1. I would definitely say that some litigants should be my re equal than others. The litigant here requesting secrecy is a municipal government apparently attempting to cover up wrongdoing on its part and that of one of its employees. As a government owing a duty to the public, I would suggest that it should have little, if any, expectation of privacy, and should be less equal, and less deserving of protection from public exposure of litigation against it.

      As a note of prejudice or bias - I am currently residing, at this time of year, in (defendant) Glendale, AZ, for at least another couple of weeks. We plan then to move up to the northern part of the Phoenix metro area.

      Imagine your feelings if your city had been credibly accused of police misconduct, and it responded to the claims by requesting that the details of the alleged misconduct be kept from the city’s citizenry by sealing the court record. You probably wouldn’t be any happier about it than I am here.

      1. I'd go further and say that no government has a legitimate privacy interest. Only individuals have privacy interests, and government is not an individual. Further, individuals it employs are performing public functions (and thus have no expectation of privacy related to anything they do for the city).

        Any medical record sealing should be at the request of the owners of those records, not the city.

  2. The Court's opinion rejecting the global sealing seems extremely reasonable and objective. It basically says that the Court will consider sealing but each specific 'sealed' must be justified by defendants. Kudos to Prof. Volokh for posting this.

    1. Yes, it's very much like a Presidential claim of Executive Privilege applying to specific instances of information requested, versus a claim of complete immunity from compelled production of any evidentiary materials, from any source.

      The final paragraph of the piece (cite from the opinion) seems to provide a good template for future opinions in some of the President's ongoing appeals in both Federal and State courts.

      1. Well, except for the fact that they are based on entirely different legal principles and precedents and therefore are held to entirely different standards of required disclosure and cooperation making the two scenarios completely incomparable, it's exactly like that.

        You might find a template for a moral argument in this opinion. You won't find a useful template for a legal argument.

        1. OK, I'll buy that the governing legislative/statutory guidance and processes are likely very different.

          So, so let’s assume that the legal justification for requesting exceptions to requirements to disclose secret stuff despite either properly requested, approved, and legally served subpoenas vested in Article 1 (Sections 2 & 3), Article 2, or Article 3 action; is different from the legal justification for requesting exceptions to requirements to disclose secret stuff despite trial disclosure requirements vested in Article 3 action.

          But either way, the rationale for following a formal exception process (such as actually claiming Executive Privilege, or filing a Motion to Seal) identifying a defined information artifact claimed to be privileged or confidential, seems both obvious and strong.

          I'm interested in your reasoning behind the unsupported assertion that the two scenarios are completely incomparable. As a layman, they seem quite comparable to me. But I'm neither a credentialed Constitutional scholar nor a lawyer...anyone out there with requisite qualifications care to weigh in?

          1. [delete either from the 2nd para]

          2. While I agree with you (I think) both that the President a) should have handed over those documents and b) is likely ultimately to not survive an impeachment trial if he maintains a blanket refusal on everything, it’s not at all clear to me that this is obvious.

            On its face the Constitution doesn’t clearly grant any compulsory process (subpoenas, summons, etc) at all, so while I think those fit comfortably within the Necessary and Proper clause for the Congress to grant itself that power (and here I’ll just assume they have), it’s not an inherent power - you can’t just say “... vested in Articles...” without the simple retort that no such powers were vested overcoming your claim.

            Instead you need to argue that some combination of powers granted under Article 1 (or conceivably elsewhere, though that’s unlikely) have enabled Congress (or more specifically, individual Congressmen) to issue binding orders to another branch. I find that a relatively easy argument: Congress has the power to make laws (even overriding a veto if they so choose), the House has the power to impeach with the Senate having trial over (and numerous others which I don’t think matter here: consent to appointments, declare war, ratify treaties, etc). Take those two powers (make laws, impeach) and combine with the power to do all (and only) things that are necessary and proper in the execution of those powers and I think it’s clear that Congress could bootstrap it’s own powers to grant it compulsory process (again, like subpeonas and summons, but others too - they don’t have to be limited to traditional judicial powers). Each branch using the power to make their own rules for their own conduct could then delegate that power to subsets of themself (such as individual congressmen, or committee chairs) - though it’s not obvious to me they could delegate to a non-congressman.

            The question then is: did they do so? And if they did, were those the powers exercised? If yes, how do we know that, as opposed to a committee chair exercising their own right to petition a part of the government, even if written as if it had compulsory power? I really don’t know the answer here - Republicans hint that the answer is No, while Democrats assert without any claimed basis that the answer is Yes. Since it would be easy enough to prove a Yes answer - the above paragraph plus a link to the relevant statute plus a link to the relevant House rule (and the vote enabling that rule) plus a copy of the demand referencing that rule (sufficient to make it clear what power is being invoked - not necessary, but important to show intent - I’m not inclined to believe that such power was ever taken, since I assume incompetence by government as the default.

            All that of course is necessary, but not sufficient - because Congress doesn’t have plenary power, and the Executive and Judiciary have powers of their own not subject to legislative interference (court judgements, foreign diplomacy, etc - lots of places no one has specific power, only a few where one has power and the others explicitly do not). So it’s not at all clear to me that Congress has any powers, implicit or not, in areas like foreign relations - even though they could use the bludgeon of impeachment they cannot use the lesser power of investigation as that’s explicitly not their territory. The alternative would allow things like Presidents (or judges) to create legislation merely because they disagree with the legislatures choice of actions - again stepping into areas they explicitly have no power.

  3. Some of the documents are apparently medical records of the alleged victim(s), who do have an arguable privacy interest in sealing. Indeed, I wonder what the responsibilities of the city and the court are under federal medical privacy law? In any case, is it really the city's place to argue for the confidentiality of those records, or should the subjects of those records perhaps be notified and allowed to address the court on this question?

    1. Medical privacy laws could require redaction of specific data elements within individual documents. Depending on the document, the redactions could even have to be quite broad. I can think of no medical record reason, however, which would justify sealing an entire document, much less the whole case record.

      1. I can think of one, sort of. Covert actions teams (the kind most seen in video games) often have their entire medical history redacted from official files, which causes a huge hassle when they need treatment as veterans (during service they get treated by their own unit most of the time, or by read in physicians) and their charts don’t show most of their chronic conditions.

        This was a bigger problem a decade ago when we started having lots of guys coming back from the rock pile and retiring, especially the ones with chronic traumatic encephalopathy but who didn’t have any record of it from their service so the VA denied treatment.

        Huge pain in the ass. Mostly resolved by new rules allowing ex post changes to their jackets processed by the VA, especially if you could get a letter from your CO.

  4. If and when the Court releases the [unsealed/redacted] records, a comparison of what is finally sealed with the original request for 632 pages being sealed will be most informative.

  5. I interpret this to mean that all 632 records asked to be sealed had broadly speakkng the same reason in requesting to be sealed. If the defendent were in fact decided to be innocent of ALL CHARGES, having even one or several of the charges that defendent was exhonerated of open to the public could be damaging even devasting to their name and reputation. The request for bloc injunction would be reasonable to keep one's name and reputaton from being forever stained. Isn't the "cause" for sealing the same in all cases in this situation?

    1. Accusations of wrong doing are part of the public record. Sealing an accusation is patently ridiculous.

      If they're exonerated, that should also be part of the public record, and should abrogate the reputational stain.


    It's disheartening to see the "system" fail in this case.

    I get there are bad cops and if the alleged facts are true, then Detective Gonzalez is one bad apple.

    However, where is the oversight?

    Where's the 'honest' prosecutor?

  7. I thought their is transparency in democracy?

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