The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From the Petition for Prohibition and Mandamus in Civil Beat Law Center for the Public Interest v. Chang, filed yesterday in the Hawaii Supreme Court:
Civil No. 05‑1‑863 has a "confidential" case designation, and thus nothing in the case (parties, judge, docket, filings) is publicly accessible. To understand whether a compelling reason existed for such comprehensive secrecy, Petitioner Civil Beat Law Center for the Public Interest (Law Center) asked the circuit court for public access to Civil No. 05‑1‑863.
Respondent Judge [Gary W.B. Chang] denied that request and then restrained the Law Center's ability to discuss the case publicly under threat of sanctions for contempt….
In October 2020, the Judiciary provided the Law Center with a list of case numbers for civil cases flagged as "confidential" in the preceding 15 years. For cases flagged as "confidential", the entire case file—including the docket and case name—is inaccessible to the public. In November 2020, the Law Center began requesting access to randomly selected "confidential" cases. To date, none of the cases that the Law Center challenged has met the constitutional standards for sealing the entire case file. Civil No. 05-1-863 was on the list of "confidential" cases provided to the Law Center in October 2020.
On June 29, 2021, the Law Center requested access to the case file in Civil No. 05‑1-863…. On July 29, a person purporting to be an out-of-state attorney representing the plaintiff contacted counsel for the Law Center to discuss the motion to unseal, revealing details about the parties and the nature of the allegations in the case. According to the circuit court's subsequent orders, on August 4, the plaintiff … [filed a document with the court] requesting confidentiality for plaintiff's identity.
On August 11, the circuit court held that the "Plaintiff showed good cause to maintain her identity sealed." That decision ordered: "The above-entitled case shall be unsealed. However, individual documents that contain confidential or sensitive information, including the identity of the plaintiff, shall remain sealed and redacted copies of said documents will be made accessible to the public."
The following day, on August 12, finding that the August 11 order "did not go far enough to satisfy the court's intent to prevent the identities of the parties from disclosure," the circuit court … granted the Law Center special access to the docket, but kept the docket sealed publicly and denied any other unsealing. The Law Center's motion to unseal, however, had only requested access to the extent required by the constitutional standards for accessibility to court records for all members of the public. The Law Center has never requested special access to court records solely for itself in this case or any other. After the Court Administrator confirmed that the public would not have access to the docket, the Law Center declined to exercise the special access rights granted by Respondent Judge and thus has not seen the docket in Civil No. 05‑1‑863.
After granting the Law Center special access rights in the August 12 order, the circuit court then held:
In granting Petitioner leave to view the docket sheet herein, the court also prohibits Petitioner from disclosing, communicating, disseminating, publicizing, compromising or otherwise publishing the name or identity of any of the parties in the instant case. This Order shall apply to Petitioner and its agents, employees, associates, assignees, counsel, appointees, assistants, affiliates and any other person or entity operating in concert with, at the direction or request of, or with the knowledge of Petitioner. Any violation of this Order may be punishable by contempt of court….
The Law Center publishes on its website the filed motions and related documents and orders when it is involved in cases, including cases involving motions to unseal as a nonparty. As a result of the circuit court's gag order and threat of contempt, the Law Center has not published anything about Civil No. 05‑1‑863….
[1.] The circuit court has hidden an entire case file from the public based on a secret rationale.
In the subsequently voided August 11 order, the circuit court's only finding was conclusory: "Plaintiff showed good cause to maintain her identity sealed." The August 12 order had no findings. As this Court has previously held, if a court overrides the presumptive right of public access to court records under the First Amendment of the U.S. Constitution and article 1, section 4 of the Hawai`i Constitution, the public deserves an explanation….
[2.] When individuals invoke the power and authority of the taxpayer-funded Judiciary by filing a lawsuit to resolve civil disputes, that process is public…. Accordingly, … numerous courts have held that docket sheets and complaints are protected by the constitutional right of public access.
The Judiciary's "confidential" case designation, however, hides everything. No docket. No complaint. No explanation. The case disappears without any public accountability. Such expansive secrecy must be justified by harm to a compelling interest that cannot be protected through less restrictive means.
The circuit court, at best, only stated that the plaintiff's identity needed to be protected. That conclusion does not articulate a compelling interest nor the irreparable harm to a compelling interest that must be avoided, so the public's ability to suggest possible alternatives is limited. Nevertheless, redaction is an obviously less restrictive solution to protecting a plaintiff's identity.
[3.] "Prior restraints are subject to strict scrutiny because of the peculiar dangers presented by such restraints." … This Court has only previously addressed gag orders involving speech of litigants—an issue outlined by the Ninth Circuit in Levine v. United States District Court. The Ninth Circuit recognized, however, that the bar to justify prior restraint of nonparties is higher. As it concerns gag orders on nonparties, "[a]ny prior restraint on expression comes to this Court with a 'heavy presumption' against its constitutional validity." It is "one of the most extraordinary remedies known to our jurisprudence." Few circumstances open the door to prior restraint of nonparties: "In order to be held lawful, respondents' action, first, must fit within one of the narrowly defined exceptions to the prohibition against prior restraints …." …
[4.] As described above, the U.S. Supreme Court requires that prior restraint of a nonparty fall within a handful of limited exceptions, such as obscenity or incitements to violence. There is no expansive prior restraint exception for privacy. E.g., Org. for Better Austin v. Keefe, 402 U.S. 415, 419-20 (1971) ("Designating the conduct as an invasion of privacy, the apparent basis for the injunction here, is not sufficient to support an injunction against peaceful distribution of informational literature of the nature revealed by the record."); In re Providence Journal Co., 820 F.2d 1342, 1350 (1st Cir. 1986) ("That publication would prove embarrassing or infringe Patriarca's privacy rights is, however, an insufficient basis for issuing a prior restraint…. An individual's right to protect his privacy from damage by private parties, although meriting great protection, is simply not of the same magnitude."); Ass'n for Los Angeles Deputy Sheriffs v. Los Angeles Times Commc'ns LLC, 239 Cal. App. 4th 808, 821-23 (2015) (privacy claims do not justify prior restraint); Mortg. Specialists, Inc. v. Implode-Explode Heavy Indus., Inc., 999 A.2d 184, 244 (N.H. 2010) ("Mortgage Specialists' interests in protecting its privacy and reputation do not justify the extraordinary remedy of prior restraint."). Similar to this case, the U.S. Supreme Court rejected privacy of a juvenile as a constitutional basis for enjoining a nonparty's publication of the minor's name and picture. Okla. Publ'g Co. v. Dist. Court, 430 U.S. 308, 308-12 (1977); accord WXYZ, Inc. v. Hand, 658 F.2d 420, 425-27 (6th Cir. 1981) (statute unconstitutional that prohibited publication of criminal defendant's and victim's name and details of the alleged conduct in sex offense cases).
Nothing about this case justifies prior restraint of the Law Center. The vague privacy concerns that seem to underlie the circuit court's sealing are not sufficient to justify a gag order (or the comprehensive sealing). And there is an obvious less restrictive alternative to prior restraint: do not purport to give the Law Center special access to the docket—relief that it never sought nor used. The circuit court's gag order should be lifted….