Court Refuses Jail Guard's Request to Seal Civil Lawsuit Brought Against Him by Prisoner

"Bartolotti alleges that 'anytime you search [his] name on [the internet, he is] affiliated with this case,' which 'has affected [his] personal and professional lives [and] has become a safety issue at times as well.'"

From Low v. Bartolotti, decided Friday by Judge J. Michael Seabright (D. Haw.):

On July 23, 2018, Plaintiff Robert Keaupuni Low, Jr. filed a Prisoner Civil Rights Complaint … pursuant to 42 U.S.C. § 1983, alleging that Defendants, Adult Corrections Officer Bartolotti, Maui Community Correctional Center ("MCCC"), and unidentified MCCC "agents" violated the Eighth Amendment…. [T]he court dismissed Low's Complaint … [finding] that …  he failed to state a claim pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(a-b).

On June 9, 2021, the court received a letter from Bartolotti "request[ing] that the court remove [the instant] court case" from appearing as an internet search result relating to his name. The court construes this request as a Motion to Seal Entire Civil Case File….

Courts have historically "recognize[d] a general right to inspect and copy public records and documents, including judicial records and documents." This right of public access, "whether arising under the First Amendment or the common law, 'may be abrogated only in unusual circumstances.'" Thus, "'a strong presumption in favor of access' [to judicial records] is the starting point." …

"The mere fact that the production of records may lead to a litigant's embarrassment [or] incrimination … will not, without more, compel the court to seal its records." … "'Only the most compelling reasons can justify non-disclosure of judicial records.'" …

And although some circumstances merit the denial of public access to certain court documents or judicial records, those circumstances are limited—extremely limited in the instance of sealing an entire case file.

Where the trial court conceals the record of an entire case, making no distinction between those documents that are sensitive or privileged and those that are not, it must be shown that "the denial [of access] is necessitated by a compelling governmental interest, and is narrowly tailored to that interest." This heightened scrutiny is necessitated by the fact that entire civil cases otherwise open to the public are erased as if they never occurred.

Notably, the Judicial Conference of the United States has emphasized, by policy statement, the very limited circumstances in which an entire case record should be sealed. Judicial Conference Policy on Sealed Cases. Although the policy statement is not binding as a matter of law, the Judicial Conference encourages federal courts to seal entire civil cases only when "required by statute or rule or justified by a showing of extraordinary circumstances and the absence of narrower feasible and effective alternatives such as sealing discrete documents or redacting information, so that sealing an entire case file is a last resort." …

In his Motion, Bartolotti "request[s] that the court remove [the instant] court case" from appearing as an internet search result relating to his name. Bartolotti alleges that "anytime you search [his] name on [the internet, he is] affiliated with this case," which "has affected [his] personal and professional lives [and] has become a safety issue at times as well." He further alleges that "[t]his case was brought to the court for the sole reason that Mr. Low was trying to tarnish [Bartolotti's] name by using the internet," and that the impact extends to his cousin [who shares his name], whose business as a personal trainer suffers as well.

Bartolotti has not met his burden. His conclusory allegations are simply not enough to overcome the "heightened scrutiny" required for a court to seal an entire civil case file. That is, Bartolotti has failed to demonstrate any interest—whether under the First Amendment or the common law—compelling enough to overcome the presumptive right of public access to this civil action. These allegations demonstrate neither that sealing this case protects a "compelling government interest," nor that sealing the entire case file is "narrowly tailored to that interest."

Comments

[ReaderY]

Imagine a world where are firms that specialize in filing frivolous cases with scandalous allegations for the sole purpose of getting their contents on internet search sites, knowing that legal papers filed in courts are generally protected from takedown requests. It doesn’t matter for this purpose if these cases get dismissed the minute a judge sees them.

The firm could insulate themselves from any attorney-client obligations by preparing these cases with instructions on how clients can file them themselves, and with no evidence someone else prepared them until people start noticing suspicious similarities in cases filed in disparate jurisdictions. Since the point is just to get the cases on the record, the client doesn’t need to do anything, and doesn’t need to know how to do anything, once they hit the docket.

Of course, many prisoners don’t need such a firm. They could file frivolous suits solely to embarass police officers and prison guards on their own.

I find myself with some potential for sympathy for the prison guard. It is possible that exactly this happened. Based on the decision, if it did, it simply wouldn’t matter to the legal system. In other words, the law as it stands permits an exploit of this kind, a prisoner filing a lawsuit solely embarass guards who get out of line, fail to understand who’s really the boss, and don’t do what they’re told.

[ReaderY]

For all our sympathy with prosoners who aee genuinely abused by guards, frivolous retaliatory lawsuits as a weapon of power are a real potential problem in a context like a prison, and the ability to use legal exploits to publicize their contents to the world is a real problem for prisoner-guard relationships and the ability of guards to control prisons.

[Dilan Esper]

My answer to that would be that if it starts happening, we should adjust the sealing rules.

Bear in mind that while there's a First Amendment backdrop to sealing rules, they are, in the first instance, the province of the trial courts, and there's enormous discretion to enter temporary orders preserving anonymity.

If the scenario you posit materialized, I suspect that the courts, which are more pragmatic than some give them credit for, would craft a rule that dealt with that situation (e.g., by requiring a pre-suit review before the contents of a suit filed by a firm with a record of filing such suits could be placed in the public court file).

[Krychek_2]

Frivolous prisoner lawsuits are a problem. So are prisoners who have their civil rights violated with no recourse thanks to qualified immunity. I would favor a solution that fixes both problems simultaneously.