The Volokh Conspiracy
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Interesting Unsealing Decision in the Abrego Garcia Deportation Challenge
I haven't been closely following the many filings in the case, but I'm very glad the court is enforcing a fairly broad right of public access here.
From yesterday's order in Abrego Garcia v. Noem by Judge Paula Xinis (D. Md.):
The Press Movants rightly contend that, at common law, the public enjoys a presumptive right to access court records, overcome only when outweighed by competing interests. The First Amendment, too, accords the public access, unless there has been a showing of "compelling governmental interest, and only if the denial is narrowly tailored to serve that interest." The right to public access of court records remains critical to promoting "trustworthiness of the judicial process, to curb judicial abuses, and to provide the public with a more complete understanding of the judicial system, including a better perception of fairness." Thus, before allowing records to remain sealed the Court must (1) give the public a reasonable opportunity to be heard; (2) consider less drastic alternatives to sealing such as redactions; and (3) explain publicly and with specificity its decision to seal some or all of the challenged documents.
Defendants oppose unsealing on two grounds. Neither withstand scrutiny. First, Defendants wrongly cast all challenged filings as "discovery materials" which have not "historically been open to the press and public." They then contend, essentially, that no good can come to the case by affording the public access to "discovery."
At best, the only "discovery" potentially subject to disclosure are the attachments at ECF No. 98-1 and 98-2 [Defendants' objections and responses to plaintiffs' interrogatories and requests for production]. But these documents had already been filed on the open record [on April 22] where they remained before the Court had been asked to seal them during the April 23, 2025 hearing, and without the benefit of full briefing and consideration. However, upon consideration of the Press Movants' position, the Court recognizes that judges simply "do not have the power, even were we of the mind to use it if we had, to make what has thus become public private again," Thus, the Court will unseal those documents.
Defendants next contend that continued sealing is necessary to "protect[ ] national security" and "prevent[ ] the dissemination of sensitive information." They relatedly contend that redaction is practically unavailable because "it is unclear that the sensitive information could readily be disentangled from non-sensitive information such that redactions would be a feasible less restrictive approach to protecting the sensitive information."
Although the Court does not wholly agree with the Defendants' overbroad characterizations of the government interests at stake, the Court does recognize that certain information touches upon Defendants' asserted state secrets privilege as applied to Secretary of State Marco Rubio and the State Department. The propriety and scope of such invocation is still pending resolution. Thus, until the Court finally resolves the propriety and scope of such privilege certain portions of the record must remain under seal. However, the Court can and will achieve this protection through redactions when practicable.
Accordingly, for the reasons discussed herein, the Court ORDERS the Clerk to take the following actions:
ECF Nos. 98, 98-1 and 98-2 [Defendants' request for conference as to discovery matters and the objections and responses to plaintiffs' discovery requests]. The filings had been originally docketed by the parties on the open record. Thus, the Clerk shall UNSEAL the filings.
ECF No. 101 is Defendants' relatively boilerplate request for a one-week stay of discovery in an effort to resolve the litigation. It does not disclose any potentially privileged or otherwise sensitive information for which a compelling government interest outweighs the right to access. Thus, the Clerk shall UNSEAL ECF No. 101.
ECF No. 102, Plaintiffs' response to ECF No. 101, includes some information potentially implicated by the state secrets privilege. Such information can and will be redacted. The Clerk is directed to maintain the unredacted version of ECF No. 102 UNDER SEAL, but to file at ECF No. 102-1 the redacted version as provided by the Court.
ECF Nos. 104 and 105 are boilerplate notices of Defendants' ex parte submissions to the Court and a request to continue the April 23, 2025 discovery stay. They shall be UNSEALED. The Court will address by separate order the propriety of filing the ex parte submissions on the public docket, either in whole or in part, after it resolves the applicability and scope of the state secrets privilege.
The April 30, 2025 hearing will be unsealed in part. {Certain portions of the April 30, 2025, hearing transcript will be released, as the substance closely tracks the language set forth in the Harper Declaration filed in J.O.P. v. U.S. Department of Homeland Security.} The Court will provide the certified court reporter with instructions as to which portions of the record shall remain under seal. The redactions are narrowly tailored to protect potentially classified information or material that could implicate the state secrets privilege pending final determination on the applicability and scope of the privilege.
{The Press Movants also request access to the transcript of the April 23, 2025 hearing. That transcript, however, shall remain under seal at this time, as it includes materials designated as classified and potentially subject to the state secrets privilege in a manner that cannot readily be disentangled from any possible non-privileged or non-sensitive information. The Court will revisit whether continued sealing is warranted after it rules on the pending privilege assertions.}
The Press Movants, which include many major news outlets, are represented by Maxwell S. Mishkin and Isabella Salomão Nascimento (Ballard Spahr LLP).
