Free Speech

Court Refuses to Seal Case That Plaintiff Wanted to Hide from Potential Employers

Unsurprisingly, the court also refuses to order private caselaw repositories and search engines to hide the information.

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From Delplanche v. Window Products, Inc., decided yesterday by Judge Ann Aiken (D. Or.):

Plaintiff worked for defendants from November 2014 until he was terminated on August 19, 2015. On December 14. 2016, he filed this action, asserting unlawful termination under the Equal Pay Act, the Fair Labors Standards Act, and various state laws. On March 14, 2018, the parties filed a Stipulated Judgment of Dismissal, which stipulated that "this case, having been compromised and fully settled, be dismissed with prejudice and without costs or attorneys' fees to any party" ….

On April 13, 2021, plaintiff filed this motion. In it, he alleges that, after the case settled "several third-party entities pulled the case filing and all supporting documents with confidential salary information of the Plaintiff" from the District of Oregon's "records database and the case file was then posted all over internet search engines," for prospective employers to find. As a result, prospective employers have asked plaintiff about the case during several job interviews. But plaintiff cannot "disclose the terms and conditions of [his] discharge without violating the terms and conditions of the [2018] settlement agreement."

Plaintiff identified at least seven third parties that "posted the case file to … multiple search engines." When he asked them to remove the postings, six of the parties agreed to do so. One, Leagle.com, refused to remove the postings without a court order. Plaintiff also contacted Google, Bing, and Yahoo, to see if they would agree to remove Leagle.com's postings, but the search engines also refused to do so without a court order.

Plaintiff alleges that the presence of case information on the internet, coupled with his obligations under the settlement agreement has "hindered [his] ability to be gainfully employed" and "is affecting [his] ability to provide for his family at a financial setback of over several hundred thousand dollars," which "violates [his] civil liberties to due process." He also asserts that the postings violate his rights to privacy under the Federal Privacy Act. Plaintiff asks the Court to "seal this case and all of its filings and documents from [the] public record" and to order third parties, including but not limited to 11 parties listed by plaintiff, to "remove the case filing" currently posted on the internet and "cease and desist from any future internet postings."

No, said the court:

Courts have long recognized a "general right to inspect and copy public records and documents, including judicial records and documents." This right is justified by the interest of citizens in "keep[ing] a watchful eye on the workings of public agencies." Unless a particular court record is one "traditionally kept secret," [such as grand jury transcripts and warrant materials in the midst of a pre-indictment investigation,] a "strong presumption in favor of access" is the starting point.

When a party seeks to seal an entire case file, as plaintiff does here, courts have required that party to meet the high threshold of showing that "compelling reasons" support the need for secrecy…. In general, "compelling reasons" sufficient to outweigh the public's interest in disclosure and justify sealing records exist when such "court files might have become a vehicle for improper purposes," such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets. "The mere fact that the production of records may lead to a litigant's embarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records."

Plaintiff's request to seal this entire case along with all associated electronic records because potential employers' knowledge of this lawsuit has caused them to ask difficult questions during interviews and made it hard for him to find work does not meet the "compelling reasons" standard. And plaintiff fails to cite any legal authority to suggest that it does.

Plaintiff suggests that third parties who posted records from this case on the internet violated his rights under the Federal Privacy Act …. Under the Act, "[n]o agency shall disclose any record which is contained in a system of records by any means of communication to any person, or to another agency, except pursuant to a written request by, or with the prior written consent of, the individual to whom the record pertains. 5 U.S.C. § 522a(b). As its express terms indicate, the Act does not regulate the disclosure of records by private individuals or this Court—it applies only to the release of information by federal agencies.

Quite right.

NEXT: Short Circuit: A Roundup of Recent Federal Court Decisions

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  1. “…keep[ing] a watchful eye on the workings of public agencies” sounds like a BS explanation to me. I am not saying seal court records. I am just saying that explanation does not appear valid.

    1. So you’re a fan of secret courts and secret court proceedings?

  2. A question for Professor Volokh.

    Does the Constitution prohibit secret ballots?

    It seems to me that it could be argued that elections are public proceedings critical to government every bit as much as judicial ones, and the same considerations that warrant public judicial proceedings ought to also warrant public election proceedings, so the public will have confidence in their fairness and integrity etc. etc.

    Since I think that the question of whether proceedings should be public ought to be an ordinary one of public policy implemented by court rules and statutes, not a matter of constitutional law, I have no problem with distinguishing the two. But if constitutional law, why would the constitution make this distinction?

    It seems to me that there could be conditions where considerations regarding judicial proceedings might become similar to the considerations that gave rise to the Australian ballot.

    Suppose, for example, that anyone black attempting to exercise their right to vote gets lynched. Or suppose any employee attempting to sue an employer, however justifiably, gets blacklisted. In cases as dire as these, the only way people might be able to enforce their rights in any meaningful way would be if it were permitted to do so in secret. There may be circumstances where secrecy is warranted.

    1. ReaderY: As with so much in the legal system, this all turns on longstanding traditions. Richmond Newspapers, Inc. v. Virginia (1980) recognized a right of access to criminal trials because of a longstanding history of public trials (indeed, a history that goes beyond the Public Trial Clause, which only gives the defendant, not the public, the right to insist on a public trial). Lower courts have extended that to civil trials and civil court filings because of a similar longstanding history. And setting aside the First Amendment constitutional right, the common-law right of access to court records likewise turns on longstanding tradition.

      There is no such longstanding tradition of public ballots; indeed, for over 100 years the tradition has been the opposite. Likewise, there’s no longstanding tradition of access to documents in the hands of the Executive Branch, so courts haven’t recognized a First Amendment right of access to such documents. (To the extent such a right of access to executive documents exists, it exists through statutes, such as state and federal Freedom of Information Acts and Public Records Acts.)

      I think this tradition of access to court records is also buttressed by the need to police the actions of full-time government employees who wield substantial power — judges. (Jurors’ deliberations are kept secret, as are their nonunanimous votes and, I think, sometimes even their identities.) Voters exercise power, but each voter’s power is considerably more dilute than a judge’s. That doesn’t explain the lack of First Amendment right of access to executive records; that’s more focused just on the tradition.

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