Omar v. Kerry et al

Filing 57

ORDER by Magistrate Judge Jacqueline Scott Corley denying 50 Administrative Motion to File Under Seal (ahm, COURT STAFF) (Filed on 11/17/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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MOSED SHAYE OMAR,

Case No. 15-cv-01760-JSC

United States District Court
Northern District of California

Plaintiff,
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v.

ORDER RE: ADMINISTRATIVE
MOTION TO SEAL

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JOHN KERRY, et al.,

Re: Dkt. No. 50

Defendants.
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In this action, Plaintiff Mosed Shaye Omar challenges the revocation of his passport

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following his interrogation and detention at the U.S. Embassy in Sana’a, Yemen. Five months after

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the action was filed and nine days after the Court heard argument regarding Plaintiff’s motion for

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a preliminary injunction seeking return of his passport, the government obtained—and shortly

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thereafter executed—a search warrant for Mr. Omar’s DNA based on an alleged violation of 18

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U.S.C. § 1542, False Statement in an Application for a Passport. (Dkt. No. 35.) When the Court

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became aware that the Department of Justice had obtained and executed this search warrant, the

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Court first ordered the government to file a copy of the affidavit establishing probable cause for

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the search warrant, and in a second order, ordered the Department of Justice to answer certain

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questions. (Dkt. Nos. 36 & 39.) The Department of Justice filed two responses to the Court’s

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second Order: one from counsel for the Defendants in this action, and one from the Assistant

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United States Attorney who signed off on the search warrant (hereafter the “AUSA’s response”).

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The AUSA’s response was filed ex parte and for in camera review. (Dkt. No. 50.) Now pending

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before the Court is the AUSA’s administrative motion to submit this response ex parte and in

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camera, which Plaintiff opposes. Because the Court concludes that the AUSA’s request for

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sealing is not narrowly tailored, the motion is DENIED without prejudice.

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DISCUSSION
“[T]he courts of this country recognize a general right to inspect and copy public records

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and documents, including judicial records and documents.” Nixon v. Warner Communications,

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Inc., 435 U.S. 589, 597, n.7 (1978); see also Foltz v. State Farm Mutual Auto Insurance Comp.,

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331 F.3d 1124, 1134 (9th Cir. 2003) (“In this circuit, we start with a strong presumption in favor
of access to court records.”). The right is justified by the interest of citizens in “keep[ing] a

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United States District Court
Northern District of California

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watchful eye on the workings of public agencies.” Nixon, 435 U.S. at 598. The right, however, “is

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not absolute and can be overridden given sufficiently compelling reasons for doing so.” Foltz, 331

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F.3d at 1135; see e.g., Times Mirror Co. v. United States, 873 F.2d 1210, 1219 (9th Cir. 1989).

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The “compelling reasons” standard is a strict one, and “[s]imply mentioning a general category of

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privilege, without any further elaboration or any specific linkage with the documents, does not

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satisfy the burden.” Kamakana v. City and County of Honoloulu, 447 F.3d 1172, 1184 (9th Cir.

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2006). The court must “balance the competing interests of the public and the party who seeks to

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keep certain judicial records secret. After considering these interests, if the court decides to seal

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certain judicial records, it must base its decision on a compelling reason and articulate the factual

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basis for its ruling, without relying on hypothesis or conjecture.” Id. at 1179; see also Apple Inc. v.

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Psystar Corp., 658 F.3d 1150, 1162 (9th Cir. 2011). This is particularly true with ex parte

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submissions which “are anathema in our system of justice” as they undermine the very nature of

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the adversarial process. United States v. Thompson, 827 F.2d 1254, 1258-59 (9th Cir. 1987).

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In addition, parties moving to seal documents must comply with the procedures set forth in

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Civil Local Rule 79–5. The rule permits sealing only where the parties have “establishe[d] that

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the document or portions thereof is privileged or protectable as a trade secret or otherwise entitled

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to protection under the law.” Civ. L.R. 79–5(b). It requires the parties to “narrowly tailor” their

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requests only to the sealable material. Id. at 79–5(d). Thus, although sometimes it may be
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appropriate to seal a document in its entirety, whenever possible a party must redact. See

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Kamakana, 447 F.3d at 1183 (noting a preference for redactions so long as they “have the virtue

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of being limited and clear”); Murphy v. Kavo Am. Corp., 11–cv–00410–YGR, 2012 WL 1497489,

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at *2–3 (N.D. Cal. Apr. 27, 2012) (denying motion to seal exhibits but directing parties to redact

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confidential information). Whatever the basis, the court “must articulate [the] reasoning or

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findings underlying its decision to seal.” Apple, 658 F.3d at 1162. These principles should

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likewise apply to requests to submit filings ex parte.
The AUSA contends that its response to the Court’s Order should be submitted ex parte

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because it relates to the conduct of a criminal investigation and seeks information protected by the
deliberative process. According to the motion, ex parte submission of the information will

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United States District Court
Northern District of California

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“protect the identity of individuals who are the subject of a criminal investigation...prevent

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disclosure of government work product, facts establishing criminal liability for an individual not

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charged with any crimes, and information about how criminal investigations are conducted from

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those who are not entitled to this information, including Plaintiff.” (Dkt. No. 50 at 2:23-27.)

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Although the Court concludes that the background of the government’s investigation preceding

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the search warrant was properly submitted for in camera review, the government has not offered

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any substantive explanation, let alone shown compelling reasons, for ex parte submission of the

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AUSA’s responses to the particular questions posed by the Court. The Court’s order inquired as

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to the knowledge of the federal agent and AUSA, and whether certain information was conveyed

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to the magistrate judge who signed the warrant, and if not, why not. That the government

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contends that the questions do not pertain to this civil litigation and that Plaintiff has no right to

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this information is not an appropriate justification. Further, there is no reason to protect the

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identities of the individuals who are subject to criminal investigation as their identities were

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already disclosed when the search warrant itself was filed by Plaintiff in this case. (Dkt. No. 35-

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1.)

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Accordingly, the AUSA’s motion to file its response ex parte and in camera is DENIED

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without prejudice to resubmission of a more narrowly tailored request that comports with this

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Order and, in particular, explains why the additional (non-background) information it seeks to
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shield is properly maintained ex parte. The government shall file a renewed request on or before

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November 25, 2015.

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IT IS SO ORDERED.
Dated: November 17, 2015

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________________________
JACQUELINE SCOTT CORLEY
United States Magistrate Judge

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United States District Court
Northern District of California

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