“This appeal concerns judicial secrecy.”
So begins a friend-of-the-court brief filed this week by Public Citizen and other open government and consumer groups in a case soon to be heard by the 4th U.S. Circuit Court of Appeals.
The groups, joined by a who’s who of media elite, are appealing a decision by U.S District Judge Alexander Williams, Jr. in Maryland which allowed a company to secretly and anonymously stop the Consumer Product Safety Commission from publishing a negative report about one of its products.
Despite their efforts, the groups unsuccessfully challenged that ruling in the district court, in part because they knew very few of the underlying details — including the identity of the company, known only as “Company Doe.” Judge Williams had permitted the entire case to proceed under seal.
“The public has a First Amendment right of access to court proceedings,” said Scott Michelman, the attorney handling the case for Public Citizen, Consumers Union and Consumer Federation of America. “The denial of public access is particularly problematic where the case involves a matter of public safety and a challenge to the implementation of a new statute. Adjudicating cases based on secret proceedings, with secret facts and a secret plaintiff, is incompatible with our tradition of open government.”
In March 2011, the CPSC launched a database of safety reports concerning a range of consumer products. Before posting reports, the agency attempts to confirm information in reports but cautions consumers that not all information has been verified. Manufacturers are able to view complaints about their products, object to the inclusion of inaccurate or confidential information and post responses on the site.
In October of that year, a manufacturer sued the CPSC to stop the agency from posting a negative report about one of its products. At the same time, the company asked to proceed under a pseudonym and to have the entire case litigated under seal. Consumer groups and the media objected to both requests, claiming that the public had a right to know the identity of the company and the facts underlying the case.
The court didn’t rule on that objection until July 2012, by which time the case had been secretly and fully litigated. Judge Williams held that the subject report was inaccurate and should be withheld; that the company could litigate as “Company Doe”; that the case could proceed under seal; and that the objecting groups could not overturn his seal order. He also found that the potential harm to the company’s reputation outweighed the right of access to judicial records and justified his decisions in the case.
On appeal, the CPSC is not challenging the substance of the court’s ruling concerning the report. But the consumer groups are challenging the court’s decision to allow the company to proceed under a pseudonym and litigate its case in secret. They are asking the Fourth Circuit to overturn the district court ruling and open up the proceedings to the public. As argued in their brief:
Because what happens in the halls of government is presumptively public business, courts in this country issue public decisions after public arguments based on public records. This case, however, proceeded from filing to judgment with a secret plaintiff, secret arguments, and secret facts. At the same time it granted summary judgment for the plaintiff, the court ruled that crucial facts about the case, including the plaintiff’s identity and the court’s fact-based reasons for granting judgment to the plaintiff, will remain permanently sealed. The seal imposed in this case is incompatible with our law and national tradition of public access to court proceedings.
The decision to seal court records is sometimes dictated by law. For example, False Claims Act whistleblower complaints are required to be sealed until the federal government decides whether to participate. So too are federal grand-jury matters, as are indictments and criminal complaints against defendants not in custody, as those individuals might otherwise flee.
At other times, though, the decision to seal rests within the discretion of the judge, who must balance the public’s right of access to court records with a need to keep certain information confidential — for individual privacy reasons, national security interests, the protection of witnesses or defendants, or the preservation of confidential business information.
Usually the restriction relates to specific documents or parts of documents filed in court. But an entire case can be sealed only upon a showing of extraordinary circumstances and when a more limited seal is not possible.
Because the sealing of an entire case is such an intrusion upon the public right of access, it happens rarely. A Federal Judicial Center report released in 2010 showed that only .5 percent of the more than 300,000 civil and criminal cases filed in federal district court in 2006 were completely sealed.
Here, the district court found that the potential economic harm to the company caused by an inaccurate report filed on the CPSC database justified both allowing the company to litigate under a pseudonym and sealing the entire case from public access.
That’s a first, said Public Citizen — the first time a court has ever sealed a court record because of concern about a company’s reputation and the first time a court has allowed a company to proceed under a fictitious name to protect its reputation.
And it should be the last time a court tries to restrict access for that reason, the group added. “Simply showing that the sealed information would harm a company’s reputation is not sufficient to override the public interest in access,” Public Citizen said in its brief, citing case law from other circuit courts.
But court protection is needed so that manufacturers can challenge inaccurate reports that might otherwise land on the CPSC database, Company Doe’s attorneys said. “No company would hazard the costs and uncertainty of litigation to challenge an inaccurate incident report if a third party could appear and unseal any document revealing the identity of the product’s manufacturer or the content of the report,” wrote company attorneys from Gibson Dunn in a brief filed on May 10.
An argument date for the appeal has not yet been set.