In a case involving a challenge to the constitutionality of Louisiana’s abortion restrictions, the District Court ordered the redaction and/or sealing of various materials in an attempt to balance the legitimate public concern with the genuine need to protect the identities of the abortion providers in this case. The district court identified twenty different categories of disputed documents, and then separated those categories into two groups. The first group contained: court filings in this case, a transcript of proceedings in this case, correspondence between counsel, publicly available articles, documents from the Louisiana Secretary of State’s website, information regarding published books, orders from the district court for the Eastern District of Louisiana, court documents from other cases, online information regarding abortion clinics, a publication from the Knights of Columbus, a public records request, and a Declaration of a Records Custodian. Even though, the District Court acknowledged, much of this information is already publicly available, the District Court ordered substantial redaction of the documents in this group, (i.e. “sensitive information that could jeopardize the privacy of the staff, physicians, patients, and others associated with Plaintiffs”). The district court’s second group of documents was composed of: a public obituary for a doctor who provided abortions, arrest reports available on public websites, deposition testimony, documents from the Louisiana Department of Health and Hospitals, documents from the Louisiana State Board of Medical Examiners, documents identifying abortion providers or staff, documents regarding medical information of patients, and an incident investigation report. For these documents, the District Court ordered that they remain sealed, as information falling squarely within the Protective Order.

The U.S. Fifth Circuit vacated and reversed:

“Judicial records belong to the American people; they are public, not private, documents. The public’s right of access to judicial records is a fundamental element of the rule of law. The public has an interest in transparent court proceedings that is independent of the parties’ interests. This right serves to promote 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 its fairness. Accordingly, we heavily disfavor sealing information placed in the judicial record.

“The rationale for public access is even greater where, as here, the case involves matters of particularly public interest. Shane Grp. v. Blue Cross Blue Shield of Mich., 825 F.3d 299, 305 (6th Cir. 2016) (‘The greater the public interest in the litigation’s subject matter, the greater the showing necessary to overcome the presumption of access’).

“In the context of publicly available documents, those already belong to the people, and a judge cannot seal public documents merely because a party seeks to add them to the judicial record. We require information that would normally be private to become public by entering the judicial record. How perverse it would be to say that what was once public must become private – simply because it was placed in the courts that belong to the public. We will abide no such absurdity.

“The district court here also used the wrong legal standard for sealing documents. Different legal standards govern protective orders and sealing orders. Protective orders require a finding of ‘good cause’ by the district court and apply to documents produced in discovery. At the discovery stage, when parties are exchanging information, a stipulated protective order under Rule 26(c) may well be proper. But at the adjudicative stage, when materials enter the court record, the standard for shielding records from public view is far more arduous. Sealing judicial records and blocking public access require a stricter balancing test. To decide whether something should be sealed, the court must undertake a document-by-document, line-by-line balancing of the public’s common law right of access against the interests favoring nondisclosure. Under both standards, the working presumption is that judicial records should not be sealed. Courts should be ungenerous with their discretion to seal judicial records. And, to the extent that any sealing is necessary, it must be congruent to the need. Here, the district court’s only justification for sealing entire categories of documents was that those documents fall squarely within the Protective Order. That a document qualifies for a protective order under Rule 26(c) for discovery says nothing about whether it should be sealed once it is placed in the judicial record. The district court thus provided no valid legal basis for sealing these documents. By failing to articulate any reasons that would support sealing those documents, the district court erred. The district court also erred by failing to evaluate all of the documents individually. It is the solemn duty of the judge to scrupulously examine each document sought to be sealed. It is not easy, but it is fundamental.”

 

June Medical Services v. Phillips, No.21-30001, 2022 WL 72074 (5^th Cir. Jan. 7, 2022).