The Volokh Conspiracy

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Free Speech

No Sealing of Plaintiff's Expunged Court Records That Are Central to Plaintiff's Libel Claim

"[T]he fate of Plaintiff's claims hinges to some extent on the truth or falsity of Defendant's statements regarding Plaintiff's conviction of a crime. Whether Defendant's statements are false—a determination that relies at least in part on Plaintiff's criminal records—is directly relevant to the public."


From Ferrari v. Francis, decided earlier this month by Judge Karen Gren Scholer (N.D. Tex.):

Plaintiff brought this lawsuit because of Defendant's alleged "false and defamatory statements" regarding Plaintiff. Among other things, Plaintiff alleges that Defendant falsely informed various entities that Plaintiff is a convicted felon…. Defendant moved to dismiss Plaintiff's claims. Defendant attached materials from Plaintiff's Colorado criminal record to the Motion to Dismiss as Exhibits B-2 through B-9[, including] … arrest warrant-related documents, a mugshot, an appearance bond, minute orders, docket sheets, and findings of fact as to Plaintiff's guilty plea. These documents are currently under seal by order of the Denver District Court. That court sealed Plaintiff's criminal record after Plaintiff completed a term of deferred adjudication.

Seeking to continue to shield his criminal record from public access, Plaintiff filed the instant Motion, in which he asks the Court to: (1) seal Exhibits B-2 through B-9 to Defendant's Motion to Dismiss and (2) order the parties to file copies of their Motion to Dismiss briefing that redact any references to Plaintiff's criminal record….

The Court "heavily disfavor[s] sealing information placed in the judicial record." In determining whether a document should be sealed, the Court undertakes a "document-by-document, line-by-line balancing of the public's common law right of access against the interests favoring nondisclosure." …

Turning first to the interests favoring non-disclosure, Plaintiff contends that the Constitution "affords an individual a privacy interest in avoiding the disclosure of certain personal matters." But the Court finds that Plaintiff's privacy interest is weak for four reasons. First, in support of this argument, Plaintiff cites only a United States Supreme Court case analyzing the privacy language in the Freedom of Information Act's ("FOIA") statutory exemption provisions. This case does not support Plaintiff's argument that he has a constitutional right to privacy with respect to his criminal record. "The question of the statutory meaning of privacy under the FOIA is, of course, not the same as the question whether … an individual's interest in privacy is protected by the Constitution." And the case is distinguishable on the facts. The Supreme Court explicitly distinguished between the stronger privacy interest in "a computerized summary located in a single clearinghouse of information" and the weaker privacy interest in "public records that might be found after a diligent search of courthouse files, county archives, and local police stations." Plaintiff's criminal record is more akin to the latter than the former, and courts have found that individuals lack a constitutional privacy interest in similar circumstances. See White v. Thomas (5th Cir. 1981) (holding that any rights that "grow[ ] out of an expungement order … are not … privacy rights entitled to constitutional protection"); Nilson v. Layton City (10th Cir. 1995) ("An expungement order does not privatize criminal activity …. An expunged arrest and/or conviction is never truly removed from the public record and thus is not entitled to privacy protection.").

Second, Plaintiff has undermined his asserted privacy interest by publicly filing documents related to his criminal record, including a Motion and Stipulation for Unsupervised Deferred Judgment and Sentence that details his agreement to plead guilty to theft. See App. in Supp. of Pl.'s Mot. to Seal ("Pl.'s App."), Ex. A. This disclosure also mitigates Plaintiff's concern that his "criminal record alone does not provide the context needed to understand the full picture." Moreover, Plaintiff's Motion—which he does not seek to seal—recaps many of the facts reflected in the documents he argues should be sealed.

Third, the documents Plaintiff seeks to seal are currently available in the public record in Phoenix Capital Group Holdings, LLC v. Francis, No. DC-22-06350 (116th Dist. Ct., Dallas County, Tex.). "Even if these documents are later sealed …, the horse is out of the barn." "Publicly available information cannot be sealed."

Fourth, and finally, the fact that a Colorado court sealed the relevant documents does not establish a constitutional right to privacy…. Colorado state law does not govern the analysis of whether to seal documents filed in federal court in Texas. Even if state law creates some expectation of privacy, it does not rise to the level of a constitutional right. See Nunez v. Pachman (3d Cir. 2009) (rejecting argument that state law created "a constitutional right of privacy in an expunged criminal record"). And the state court's sealing decision was made without consideration of the countervailing public interests that exist in active civil litigation, as discussed in more detail below. Thus, the Colorado court's decision to seal Plaintiff's criminal records, while lending some support to Plaintiff's assertion of a privacy right, does not establish a weighty constitutional right to privacy.

Weighing against Plaintiff's interest in non-disclosure is the public's right to access these documents. Removing these documents from public view and redacting all references to them in the briefing would undermine the public's ability to know the basis for the Court's decision on Defendant's Motion to Dismiss, as the documents form almost the entirety of Defendant's evidence in support of his Motion to Dismiss and both parties discuss Plaintiff's criminal record extensively in their briefing.

This interest is further heightened given the nature of this case, in which the fate of Plaintiff's claims hinges to some extent on the truth or falsity of Defendant's statements regarding Plaintiff's conviction of a crime. Whether Defendant's statements are false—a determination that relies at least in part on Plaintiff's criminal records—is directly relevant to the public.

In sum, the Court concludes that Plaintiff's privacy interests are insufficient to overcome the public's right to access the documents at issue. Plaintiff is not entitled to have the challenged documents sealed, and the Court will not order redaction of the parties' briefing.

Charlene Cantrell Koonce, Andrew C. Debter, and Cort Thomas (Brown Fox PLLC) quickly jumped over the lazy dog's back represent William Francis.