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Al Otro Lado, Inc. v. McAleenan

United States District Court, S.D. California

November 21, 2019

Al Otro Lado, Inc., et al., Plaintiffs,
v.
Kevin K. McAleenan, et al., Defendants.

          ORDER DENYING WITHOUT PREJUDICE THE PARTIES' MOTIONS TO SEAL [ECF NOS. 290, 305, 311, 314]

          HOP CVNTHIA BASHANT UNITED STATES DISTRICT JUDGE.

         Before the Court are: (1) Plaintiffs' Motion to Seal Portions of their Preliminary Injunction and Class Certification Papers (ECF No. 290)[1]; (2) Defendants' Motion to Seal Portions of their Opposition to Plaintiffs' Motion for Preliminary Injunction (ECF No. 305); (3) the parties' Joint Motion to Seal Portions of Plaintiffs' Preliminary Injunction and Class Certification Reply Papers (ECF No. 311); and (4) the parties' Joint Motion to Seal Portions of Plaintiffs' Class Certification Reply Papers (ECF No. 314). For the reasons stated below, the Court DENIES WITHOUT PREJUDICE the parties' Motions.

         I. BACKGROUND

         The parties request that the Court seal 14 exhibits, in part or in their entirety, and the portions of the parties' briefings on Plaintiff's Motions for Preliminary Injunction and Provisional Class Certification that refer to the information contained in these exhibits.[2]

         The parties state that 13 of the 14 exhibits contain “sensitive law enforcement information, ” including “CBP's immigration enforcement techniques, contingency planning, and the personal telephone numbers and email addresses of senior CBP officials” (ECF No. 290-1 at 2), “the number and categorization of detainees and migrants presenting at certain ports of entry” (ECF No. 311-1 at 3; ECF No. 314-1 at 1), and data and information exclusive to internal databases and “the opinions and reactions of agency officials to the information provided” (ECF No. 297 at 2-3). Defendants argue that certain information, if disclosed, risks revealing “resource vulnerabilities” and “operational vulnerabilities” that could be exploited by others to undermine border security. (ECF No. 297 at 2-4; ECF No. 305-1 at 3-4; ECF No. 311-1 at 4-5.) Regarding the several reports that are the subject of the parties' sealing motions, Defendants state that

[t]he Reports contain data that, if made public, could provide hostile actors actionable information about which ports of entry are facing certain operational challenges, and thus reveal when/where/under what conditions someone or something should try to affect entry or avoid entry, should create diversions or distractions, or should make moves to create operational difficulties for the ports, all of which would put the security of our border in a more vulnerable posture.

(ECF No. 297 at 2-3; ECF No. 305-1 at 3; ECF No. 311 at 4; ECF No. 314-1 at 3 (all quoting the Declaration of Randy Howe ¶ 10).) Further, Defendants claim that preventing public disclosure of agency officials' email addresses is a compelling reason to seal the documents containing this information. (ECF No. 297 at 3.)

         Lastly, Plaintiffs state that a copy of the waitlist kept for asylum seekers in Ciudad Juarez should be sealed because the list contains the personally identifiable information of asylum-seekers, which could lead to their further persecution if it is revealed they are in Ciudad Juarez. (ECF No. 314-1 at 2.)

         II. LEGAL STANDARD

         “[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents.” Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one ‘traditionally kept secret,' a ‘strong presumption in favor of access' is the starting point.” Kamakana v. City & Cty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption of access is ‘based on the need for federal courts, although independent-indeed, particularly because they are independent-to have a measure of accountability and for the public to have confidence in the administration of justice.” Ctr. for Auto Safety v. Chrysler Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir. 1995)). A party seeking to seal a judicial record bears the burden of overcoming the strong presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden depends upon whether the documents to be sealed relate to a motion that is “more than tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When the underlying motion is more than tangentially related to the merits, the “compelling reasons” standard applies. Id. at 1096-98. When the underlying motion does not surpass the tangential relevance threshold, the “good cause” standard applies. Id.

         III. DISCUSSION

         Plaintiffs' motions are more than tangentially related to the merits of this consolidated dispute. See Id. at 1099-1102 (applying compelling reason standard to motion for preliminary injunction); see also Baker v. SeaWorld Entm't, Inc., No. 14CV2129-MMA (AGS), 2017 WL 5029612, at *3 (S.D. Cal. Nov. 3, 2017) (finding motion for class certification to be more than tangentially related to merits of the case and citing cases). Hence, these motions and the exhibits attached to them are subject to the “compelling reasons” standard.[3]

         “In general, ‘compelling reasons' sufficient to outweigh the public's interest in disclosure and justify sealing court records exist when such ‘court files might have become a vehicle for improper purposes,' such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.” Kamakana, 447 F.3d at 1179. If a court chooses to seal documents, it must “base its decision on a compelling reason and articulate the factual basis for its ruling, without relying on hypothesis or conjecture.” Hagestad v. Tragesser, 49 F.3d 1430, 1434 (9th Cir. 1995). This requires the party seeking to seal documents to “make a particularized showing . . . supported by specific factual findings that outweigh the important public policies favoring disclosure of that document.” Unknown Parties v. Johnson, No. CV-15-00250-TUC-DCB, 2016 WL 8199309, at *4 (D. Ariz. June 27, 2016) (citing Kamakana, 447 F.3d at 1178, 1180-81). Therefore, blanket claims of privacy or law enforcement are insufficient; instead, the party “must demonstrate specific prejudice or harm flowing from the disclosure of a specific document.” Id.

         Below, the Court addresses the two categories of exhibits that are the subject of the Motions to Seal: (1) Defendants' email chains and the attached reports; and (2) the Ciudad Juarez waitlist.[4]

         A. Email Chains and Attached Reports

         As explained below, the parties' arguments do not satisfy the “compelling reasons” standard regarding Defendants' email chains and the attached reports.

         First, that the accompanying email chains contain “internal opinions and reactions” of agents is not compelling reasons to protect them from disclosure. The emails contain brief and innocuous observations by agents about capacity at the ports of entry. Defendants do not identify a specific harm that would be caused by the public disclosure of these statements, and the Court does not find that any of the statements could be used for scandalous or libelous purposes.

         Second, it is unclear to the Court what vulnerabilities are disclosed by the data in the Queue Management Reports or the Contingency Plan that can be exploited by “hostile actors.” Defendants' vague, generalized concern about bad actors potentially frustrating the operations of ports of entry does not articulate a particularized harm flowing from public disclosure necessary to satisfy the heightened “compelling reasons” standard. See Motley v. City of Fresno, California, No. 1:15-CV-00905-DAD-BAM, 2016 WL 1060144, at *2 (E.D. Cal. Mar. 17, 2016) (finding concerns that disclosure of a procedure would “somehow allow criminals to evade law enforcement and inflict harm on the public” did not meet compelling reasons standard). Further, much of the information provided in the Contingency Plan is superficial in substance, sometimes ...


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