Sealed Public Safety Case Trampled Press Rights

(CN) - A federal judge trampled the First Amendment in sealing a case where a company successfully torpedoed a "materially inaccurate" safety complaint against it, the 4th Circuit ruled.

At the time of the complaint, the Consumer Product Safety Improvement Act of 2008 had just established more stringent safety and testing standards for the manufacturers of children's products. The Consumer Product Safety Commission was rolling out a new database that would enhance the public's ability to report and review complaints of safety hazards.

Manufacturers are able to object to information they believe is either materially inaccurate or confidential, however, and Company Doe did just that when faced with a complaint from an unidentified local government that its product caused the death of an infant.

Though the commission attempted to correct the report by redacting a portion of it, the manufacturer continued to resist any publication of a "report of harm."

It eventually filed suit, and a federal judge in Greenbelt, Md., forbade the commission from publishing the report.

The court then sealed the entire case, ensuring that no document filed in the case would even appear on the public docket.

A three-judge panel reversed Wednesday, saying that the "regrettabl[e]" decision to seal meant that "neither the press nor the public was able to monitor the litigation as it unfolded."

The trial court's opinion on the case included "sweeping redactions to virtually all of the facts, expert testimony, and evidence supporting its decision," Judge Henry Floyd wrote for the federal appeals court in Richmond, Va.

In ordering the court to unseal Wednesday, the court granted a motion from three advocacy groups - Public Citizen, Consumer Federation and Consumers Union -- to intervene.

"We are not blind to the fact that a corporation's image or reputation may diminish by being embroiled in litigation against the government over the safety of one of its products," Judge Henry Floyd wrote for a three-judge panel of the Richmond, Va.-based court. "That is the nature of public litigation. When parties 'call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials.'" (Parentheses in original.)

Here the trial court was wrong in finding that the manufacturer's "interest 'in preserving its reputational and fiscal health' outweighed the public's 'abstract interest' in obtaining information about the lawsuit."

The sealing order "violates the public's right of access under the First Amendment and that the district court abused its discretion in allowing Company Doe to litigate pseudonymously," Floyd wrote.

"The public has an interest in learning not only the evidence and records filed in connection with summary judgment proceedings but also the district court's decision ruling on a summary judgment motion and the grounds supporting its decision," the 61-page lead opinion adds. "Without access to judicial opinions, public oversight of the courts, including the processes and the outcomes they produce, would be impossible."

Other federal appellate courts have previously rejected the wholesale sealing of docket sheets, the panel continued, joining the 2nd Circuit in holding "that the public and press's First Amendment qualified right of access to civil proceedings extends to docket sheets.

"The ability of the public and press to inspect docket sheets is a critical component to providing meaningful access to civil proceedings," Floyd wrote. "The docket sheet provides onlookers an overview of the court proceedings and allows them to ascertain the parties to the case, the materials that have been filed, and the trial judge's decisions."

He added that the sealing of the entire docket sheet during the pendency of the litigation in this case "effectively shut out the public and the press from exercising their constitutional and common-law right of access to civil proceedings."

"But there is a more repugnant aspect to depriving the public and press access to docket sheets: no one can challenge closure of a document or proceeding that is itself a secret," Floyd added.

"A corporation very well may desire that the allegations lodged against it in the course of litigation be kept from public view to protect its corporate image, but the First Amendment right of access does not yield to such an interest," the opinion later states.

Senior Judge Hamilton said he concurred in the judgment "with reservations."

Though it was understandable for the trial court to be "concerned about the impact these publications would have on Company Doe, both from an economic and overall survival standpoint," Hamilton said that First Amendment jurisprudence ultimately "requires more than a common sense feeling about what harm may befall Company Doe."

"It requires concrete proof of a high likelihood of substantial and irreparable economic harm," he added. "Because Company Doe failed to present such concrete proof to the district court, we are left only with a common sense feeling of what may occur, which simply is not enough to support the sealing of a record. Without a doubt, the District Court's heart was in the right place, and it is regrettable that the majority opinion acknowledges neither the difficult task confronted by the District Court, nor the care and genuine concern displayed by such court in ruling on the motion to seal."

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