The Volokh Conspiracy
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Can Court Retroactively Seal or Pseudonymize Case, After Items Have Been in the Public Record for Months or Years?
From Ford v. Norton, decided Friday by Judge Noel Hillman (D.N.J.):
Plaintiff …, presently incarcerated in the Hudson County Jail in Kearny, New Jersey, filed a Complaint against several police officers and Cumberland County prosecutors. On January 5, 2023, the Court dismissed the Complaint without prejudice in accordance with 28 U.S.C. § 1915(e)(2) because it failed to state a claim. The Court denied leave to amend as futile because Plaintiff's illegal search and false arrest claims were barred by the statute of limitations and his malicious prosecution claims were premature.
On July 10, 2023, the Court received a letter from Plaintiff that asked the Court to "take the case down entirely" or to change his name to a pseudonym. He states the complaint concerned his activity as a confidential informant and put him "in extreme danger." The Clerk docketed the letter as a motion to modify or correct the Court's order and filed it under temporary seal pending the Court's review. Plaintiff later filed a motion to seal raising the same concerns as his prior letter.
"It is well-settled that there exists, in both criminal and civil cases, a common law public right of access to judicial proceedings and records." "The public's right of access extends beyond simply the ability to attend open court proceedings. Rather, it envisions a pervasive common law right to inspect and copy public records and documents, including judicial records and documents." However, "[t]he public's common law right to access judicial records is not absolute. Instead, when the right exists, there is a strong presumption that the public may view the records."
A party seeking to seal portions of the judicial record from public view "must show 'that the material is the kind of information that courts will protect and that disclosure will work a clearly defined and serious injury to the party seeking closure.'" The "'strong presumption' of openness does not permit the routine closing of judicial records to the public." … "In delineating the injury to be prevented, specificity is essential. Broad allegations of harm, bereft of specific examples or articulated reasoning, are insufficient."
The Court is sympathetic to Plaintiff's concerns and certainly does not wish him any undue risk of harm; however, the submissions he seeks to seal are his own submissions to the Court and the Court's proper response to them. The public is entitled to know when relief is sought from a public-funded court and the resolution of those claims.
Moreover, Plaintiff filed his complaint in January 2022 and submitted many exhibits to the docket. It was by his own volition that he disclosed certain facts in his pleadings and not the act of any third party. He made no request to file anything under seal until after the Court issued its opinion.
In the unlikely event that Plaintiff would have been allowed to proceed anonymously, the time to make such a request was before the placement of filings on the public docket, not after. What was done cannot be undone without violating the First Amendment right of access to public information. The Court "simply do[es] not have the power … to make what has thus become public private again." Gambale v. Deutsche Bank AG (2d Cir. 2004). "The genie is out of the bottle …. We have not the means to put the genie back." …
Note, though, that the law isn't firmly established on this question. Several circuits have sharply criticized retroactive pseudonymity. See Singh v. Amar, 2023 WL 3267851, *1 (7th Cir. May 3, 2023) ("Retroactive anonymity is an oxymoron and it is never appropriate to seal entire appeals."); Kansky v. Coca-Cola Bottling Co., 492 F.3d 54, 56 n.1 (1st Cir. 2007); cf. Gambale v. Deutsche Bank AG, 377 F.3d 133, 144 & n.11 (2d Cir. 2004) (concluding—as to sealing more broadly, rather than just pseudonymity—that, once "the genie is out of the bottle" and "the cat is out of the bag," "the ball game is over," even when that stemmed from a court's own error). For a sample of the district court decisions taking this view, see, e.g., Doe v. Amar, 2023 WL 4564404, *4 (C.D. Ill. July 17, 2023); Stankiewicz v. Universal Com. Corp., 2017 WL 3671040, *1 (S.D.N.Y. Aug. 9, 2017); Doe v. F.B.I., 218 F.R.D. 256, 260 (D. Colo. 2003). Amar and Kansky involved alleged mental health problems, which are often seen as private, and which might have justified pseudonymity if it were promptly sought. Some of the cases noted that the information had been in the public domain a long time; query whether they would have been more open to retroactively sealing or pseudonymizing something after it was in the public record for just a few days.
Other courts, however, allow retroactive pseudonymity and retroactive sealing. At least two Ninth Circuit orders have taken this view. See Order, Doe v. Garland, No. 19-56522 (9th Cir. May 31, 2023) (ordering that "[t]he Clerk will replace appellants name with John Doe on the public docket," though without any publicly available analysis); Order, Doe v. Preciado, No. 10-56218 (9th Cir. July 10, 2012) (likewise). And for a sample of the lower federal court decisions on this side, see, e.g., Doe No. 1 v. United States, 143 Fed. Cl. 238, 241 (2019) ("the Government's 'cat is out of the bag' argument fails because the fact that Plaintiffs have not been harassed or attacked yet does not imply that anonymizing their names now has no value"); Roe v. Doe, 2019 WL 1778053, *4 (D.D.C. Apr. 23, 2019); Order, Doe v. Bryson, No. 1:12-cv-10240 (D. Mass. Sept. 10, 2021).
Finally, for a particularly vivid illustration of the split, see the attempts by Darren Chaker (also known as Darren Delnero) to retroactively pseudonymize and seal many cases that he had filed, often years ago; for instance, this recent decision canvasses some of those cases.
