United States District Court, E.D. California
ORDER REGARDING DEFENDANT'S IN CAMERA SEALING
REQUEST CONCERNING THE SENTENCE HE DESIRES
GARLAND E. BURRELL JR. SENIOR UNITED STATES DISTRICT JUDGE
27, 2016, Defendant emailed chambers his in camera request to
have filed under seal the following documents: (1) Exhibit
B-his neuropsychological evaluation; and (2) Exhibit C-two
pages from his hospital records. Defendant references these
exhibits in his Amended Objection to his Presentence Report
(PSR), filed on the public docket as ECF No. 109, as having
been filed under seal. His Amended Objection includes the
Mr. Ryan qualifies for a diminished capacity departure
because he committed the offense while suffering a
significantly reduced mental capacity because he is
borderline intellectually disabled . . . . (See Exhibits
B & C)
The diminished capacity departure should account for his
significantly reduced mental capacity. His significantly
reduced mental capacity contributed substantially to the
commission of the offense because his brain injury and poor
cognitive functioning significantly impaired [his] judgments
about what occurred in his daily activities.
Diminished capacity is met because Mr. Ryan has a
significantly impaired ability to exercise the power of
reason, as is documented in his school records and recent
assessment, which demonstrated that he is borderline
intellectually disabled. This information also supports a
variance from the guideline range.
(Def.'s Objection to His PSR 3:3-20, ECF No. 109.)
further argues in his public sealing notice that the
"neuropsychological evaluation (Exhibit B) and
[the referenced two pages from his] medical records
(Exhibit C)" "contain [his] private
medical history that is not for public record and cannot be
easily redacted without losing material information."
(Def.'s Pub. Sealing Notice 1:17-21, ECF No. 107.)
also filed on the public docket as ECF No. 107-1 his
"Proposed Order to Seal Documents, " which would
grant the sealing request as follows:
IT IS HEREBY ORDERED that the Request to Seal be granted and
that the neuropsychological evaluation by Dr. Khazanov
(Exhibit B) and medical records (Exhibit C), be filed under
seal because they contain defendant's private medical
information. The Assistant United States Attorney Michelle
Rodriguez and Probation Officer, Carol Chavez are permitted
access to this document.
(ECF No. 107-1.) This proposed order does not explain whether
the information in the documents Defendant seeks to have
sealed could be discussed in a publicly filed sentencing
brief and in a courtroom open to the public. Generally, the
public is not excluded from "sentencing
proceedings." United States v. Rivera, 682 F.3d
1223, 1228 (9th Cir. 2012). "The presence of the public
at sentencing reminds the participants, especially the judge,
that the consequences of their actions extend to the broader
community." Id. at 1230.
closure or secrecy could be authorized in connection with a
sentencing proceeding, the proponent of secrecy must
"articulate compelling reasons [justifying secrecy
which are] supported by [facts sufficient to constitute]
specific factual findings, " which are required to
justify sealing, redaction and/or closure of a proceeding.
Foltz v. State Farm Mut. Auto. Ins. Co., 331 F.3d
1122, 1135 (9th Cir. 2003).
ruling on a motion to seal court records, the district court
must balance the competing interests of the public and the
party seeking to seal judicial records." In re
Midland Nat. Life Ins. Co. Annuity Sales Practices Litig.
("In re Midland Nat."), 686 F.3d 1115, 1119
(9th Cir. 2012) (internal citations and quotations omitted);
see also PCT Int'l Inc. v. Holland Elecs. LLC,
No. CV-12-01797-PHX-JAT, 2014 WL 4722326, at *5 (D. Ariz.
Sept. 23, 2014) ("[T]he Court has an independent duty to
follow the binding [secrecy and sealing] law of the Ninth
Circuit Court of Appeals, [and] the Court [should] not permit
sealed documents absent the requisite showing [under a
sealing doctrine]."). To seal records, the district
court must "articulate compelling reasons supported by
specific factual findings" to seal, "without
relying on hypothesis or conjecture." Foltz, 331
F.3d at 1135 (citations and internal quotations omitted, and
emphasis added). "Unless a particular court record is
one traditionally kept secret, a strong presumption [exists]
in favor of [public] access [to a document]. A party seeking
to seal a judicial record [therefore] bears the burden of
overcoming this strong presumption by meeting the compelling
reasons standard." Kamakana v. City & Cty. of
Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006)
(internal quotations and citations omitted). "[T]he
weight to be given the presumption of access [is] governed by
the role of the material at issue in the exercise of Article
III judicial power and resultant value of such information to
those monitoring the federal courts." IDT Corp. v.
eBay, 709 F.3d 1220, 1224 (8th Cir. 2013) (internal
citations and quotation omitted).
conclusory argument that the referenced exhibits
"contain the defendant's private medical history
that is not for public record[, ]" (ECF No. 107), does
not provide sufficient reason to justify the requested
sealing. "[A] formulaic recitation of a privacy interest
will not suffice to justify sealing." United States
v. King, No. 10 CR 122 JGK, 2012 WL 2196674, at *4
(S.D.N.Y. June 15, 2012) (denying defendant's request to
file under seal "records relate[d] to medical conditions
that the Court ha[d] been asked to consider in arriving at
the sentence . . . [that were] neither extensive, nor . . .
delve[d] into extraneous matters"); see United
States v. Sattar, 471 F.Supp.2d 380, 388 (S.D.N.Y. 2006)
(indicating that when applying the presumptive common law
right of access to a psychiatric report submitted to
influence a judge's sentencing decision, an evaluation is
involved concerning whether "the interests of personal
privacy . . . are sufficiently compelling to overcome the
presumption of access").
where a measure of secrecy is appropriate, a "guiding
principle . . . is that as much information as possible
should remain accessible to the public and no more should be
sealed than absolutely necessary." Lahrichi v.
Lumera Corp., No. C04-2124C, 2007 WL 1521222, at *2
(W.D. Wash. May 22, 2007); Washington Post v.
Robinson, 935 F.2d 282, 289 (D.C. Cir. 1991) (stating
that "[t]he trial court should only seal that part of
its findings that is necessary to protect [what should be
secret]"). Consistent with this principle, "courts
have recognized [certain shown privacy interests] that may
call for redaction of the materials or withholding of
disclosure outright." United States v. Bus. of
Custer Battlefield Museum & Store, 658 F.3d 1188, 1195
n.5 (9th Cir. 2011). Although Defendant asserts he cannot
easily make redactions "without losing material
information, " (ECF No. 107), he has neither shown what
"material information" would be lost, nor ...