United States District Court, S.D. California
ORDER DENYING WITHOUT PREJUDICE THE PARTIES'
MOTIONS TO SEAL [ECF NOS. 290, 305, 311, 314]
CVNTHIA BASHANT UNITED STATES DISTRICT JUDGE.
the Court are: (1) Plaintiffs' Motion to Seal Portions of
their Preliminary Injunction and Class Certification Papers
(ECF No. 290); (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.
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.
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
(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.)
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
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.
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.
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.
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
Email Chains and Attached Reports
explained below, the parties' arguments do not satisfy
the “compelling reasons” standard regarding
Defendants' email chains and the attached reports.
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.
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,