In Re: Motion to Unseal Court Records

Filing 20

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER'S MOTION FOR RECONSIDERATION, ECF NO. 13 "For the foregoing reasons, the Motion for Reconsideration is GRANTED in part and DENIED in part. Redacted versions of the competency hearing transcript and the competency evaluation report will be filed by the court." (Footnote omitted) Signed by CHIEF JUDGE J. MICHAEL SEABRIGHT on 4/4/2019 (jo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII

IN RE: MOTION TO UNSEAL
COURT RECORDS

Misc. No. 18-00477 JMS-RLP
ORDER GRANTING IN PART AND
DENYING IN PART PETITIONER’S
MOTION FOR
RECONSIDERATION, ECF NO. 13

CIVIL BEAT LAW CENTER FOR
THE PUBLIC INTEREST,
Petitioner.

ORDER GRANTING IN PART AND DENYING IN PART PETITIONER’S
MOTION FOR RECONSIDERATION, ECF NO. 13
I. INTRODUCTION
On December 14, 2018, Petitioner Civil Beat Law Center for the
Public Interest (“Law Center”) filed its “Motion to Unseal Court Records,” moving
to unseal court records filed in United States v. Katherine P. Kealoha, Cr. No. 1700582 JMS-RLP-1. ECF No. 1. On December 21, 2018, Magistrate Judge Puglisi
issued his “Order Denying Civil Beat Law Center for the Public Interest’s Motion
to Unseal Court Records,” and the Law Center appealed the decision on December
31, 2018. ECF Nos. 7, 8. On February 20, 2019, the court issued its “Order
Affirming in Part and Reversing in Part Magistrate Judge’s Order Denying

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Petitioner’s Motion to Unseal Court Records, ECF No. 7” (“February 20 Order”).
ECF No. 12. The February 20 Order unsealed a number of documents (but not all)
related to Katherine Kealoha’s (“Kealoha”) competency evaluation. See id. at
PageID # 88-90. Currently before the court is the Law Center’s March 6, 2019
Motion for Reconsideration of the February 20 Order (“Motion for
Reconsideration”).1 ECF No. 13. Kealoha filed a Response to the Motion for
Reconsideration on March 21, 2019, ECF No. 15, and the United States filed its
Response on March 22, 2019, ECF No. 16. The Law Center filed a Reply on
March 25, 2019. ECF No. 19. Pursuant to Local Rule 7.2(d), the court finds this
matter suitable for disposition without a hearing.

Reconsideration is permitted only where there is “(a) Discovery of new material facts
not previously available; (b) Intervening change in law; [or] (c) Manifest error of law or fact.”
Local Rule 60.1; see also Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255,
1263 (9th Cir. 1993). “There may also be other, highly unusual, circumstances warranting
reconsideration.” ACandS, Inc., 5 F.3d at 1263.
A “motion for reconsideration must accomplish two goals. First, a motion for
reconsideration must demonstrate reasons why the court should reconsider its prior decision.
Second, a motion for reconsideration must set forth facts or law of a strongly convincing nature
to induce the court to reverse its prior decision.” Donaldson v. Liberty Mut. Ins. Co., 947 F.
Supp. 429, 430 (D. Haw. 1996). “Whether or not to grant reconsideration is committed to the
sound discretion of the court.” Navajo Nation v. Confederated Tribes & Bands of the Yakama
Indian Nation, 331 F.3d 1041, 1046 (9th Cir. 2003) (citation omitted).
Prior to the unsealing of documents in the February 20 Order, the Law Center did not
have knowledge of the subject matter of the documents, which all concerned Kealoha’s
competency evaluation. Accordingly, the Motion for Reconsideration was the Law Center’s first
opportunity to bring arguments tailored to this specific type of court proceeding. Further, the
Law Center has provided facts and law of a “strongly convincing nature.” For these reasons,
discussed in more detail below, the court will reconsider its February 20 Order.
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Based on the following, the court GRANTS in part and DENIES in
part the Motion for Reconsideration. The court will file redacted versions of the
contested documents.
II. DISCUSSION
In its February 20 Order, the court found that a qualified First
Amendment right of access attaches to mental competency hearings, ECF No. 12
at Page ID # 86, and thus “the press and the public have a presumed right of access
to [those] court proceedings and documents,” Oregonian Pub. Co. v. U.S. Dist.
Court for Dist. of Oregon, 920 F.2d 1462, 1465 (9th Cir. 1990) (citing PressEnterprise Co. v. Superior Court, 464 U.S. 501, 510 (1985) (“Press-Enterprise
I”)). But when the First Amendment right of access attaches, it is still a qualified
right:
[t]he presumption of openness may be overcome only by
an overriding interest based on findings that closure is
essential to preserve higher values and is narrowly
tailored to serve that interest. The interest is to be
articulated along with findings specific enough that a
reviewing court can determine whether the closure order
was properly entered.
Press-Enterprise I, 464 U.S. at 510; see also Press-Enterprise Co. v. Superior
Court, 478 U.S. 1, 9 (1986) (“Press-Enterprise II”) (“But even when a right of
access attaches, it is not absolute.”). Applying these principles, the February 20

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Order kept the competency evaluation report sealed to protect Kealoha’s right to
privacy in her medical information. The February 20 Order also kept the
competency hearing and any associated transcripts sealed.
Now, the Law Center moves the court to reconsider the February 20
Order, arguing for public release of the competency evaluation report and the
transcript of the competency hearing. ECF No. 13 at PageID # 96. The Law
Center cites several cases where competency hearing transcripts and competency
evaluation reports were made public (at least in part) and argues that any
redactions should be limited in scope. Id. at PageID # 98-100, # 108-113.
Kealoha opposes any unsealing of the competency evaluation report,
while the government argues that “it may be appropriate” to release a redacted
version of the report.2 ECF No. 15 at PageID # 678-79; ECF No. 16 at PageID
# 684-85. Kealoha does not object to unsealing limited portions of the competency
hearing transcript, and the government similarly argues that “it may be
appropriate” to release a redacted version.3 ECF No. 15 at PageID # 678-79; ECF
No. 16 at PageID # 684.

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Neither Kealoha nor the government has access to the sections of the competency
evaluation report that discussed attorney-client communications.
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The government was not present for the in camera portion of the December 13, 2018

hearing.
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The court has reviewed these sealed documents and will release
redacted versions of both. These redactions will be made only where essential to
preserve higher values (in this instance, the right to privacy of medical
information, the attorney-client privilege, and the right to a fair trial) and are
narrowly tailored to serve that interest. See Press-Enterprise I, 464 U.S. at 510.
The court discusses the legal framework of each “higher value” and then makes
specific findings. See id.
A.

Legal Framework
1.

Right to Privacy in Medical Information
As a general matter, the Supreme Court has not definitively answered

whether there is a constitutional right to privacy in personal information (such as
medical information). See Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S.
134, 147 n.10 (2011); Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 457-58 (1977);
Whalen v. Roe, 429 U.S. 589, 599 (1977)). While the Ninth Circuit has not ruled
on the narrower issue of whether “the constitution protects medical privacy,”
Seaton v. Mayberg, 610 F.3d 530, 536 (9th Cir. 2010), a number of other courts
have recognized such a right. See Anderson v. Romero, 72 F.3d 518, 522 (7th Cir.
1995) (collecting cases) (“A number of cases in the lower federal courts, including
our own, building on Whalen and Nixon, recognize a qualified constitutional right

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to the confidentiality of medical records and medical communications.”); see also
Doe v. Delie, 257 F.3d 309, 315 (3d Cir. 2001) (“We have long recognized the
right to privacy in one’s medical information . . . .”); United States v. Westinghouse
Elec. Corp., 638 F.2d 570, 577 (3d Cir. 1980) (“Information about one’s body and
state of health is matter which the individual is ordinarily entitled to retain within
the private enclave where he may lead a private life.” (quotation marks omitted));
United States v. McVeigh, 918 F. Supp. 1452, 1466 (W.D. Okla. 1996) (“There
may be records sealed to protect the privacy interests of the defendants in custody,
such as matters relating to physical or mental health.”); cf. J.P. v. DeSanti, 653
F.2d 1080, 1087-91 (6th Cir. 1981).
With that backdrop, the court reviews two Ninth Circuit cases —
United States v. Guerrero, 693 F.3d 990 (9th Cir. 2012) and United States v.
Kaczynski, 154 F.3d 930 (9th Cir. 1998) — both of which have addressed a
defendant’s privacy rights in the context of competency hearings. Guerrero
rejected the trial court’s finding that “a defendant surrenders his right to privacy
because he may not be constitutionally fit to stand trial” and stated: “The
constitutional imperative to not try incompetent defendants does not itself deprive
possibly incompetent individuals of their privacy rights. Moreover, courts have
given weight to the privacy interests of defendants when considering access to

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judicial proceedings and related documents.” 693 F.3d at 1003 (citations and
quotation marks omitted). Kaczynski concluded that the trial court “properly
balanced the public’s legitimate interest in access to the report . . . with the
countervailing privacy interests asserted by Kaczynski.” Kaczynski, 154 F.3d at
932 (emphasis added).
Also, both Guerrero and Kaczynski held that redactions (rather than a
complete bar to access) were a proper alternative when needed to balance privacy
rights with the First Amendment presumption of access. Guerrero, 693 F.3d at
1003; Kaczynski, 154 F.3d at 932.
2.

Attorney-Client Privilege
Intrusion into the attorney-client privilege may constitute a violation

of the Sixth Amendment, but only if it rises to substantial prejudice. See United
States v. Kowalczyk, 805 F.3d 847, 856 n.2 (9th Cir. 2015). In the context of
sealing matters related to competency evaluations, Kowalczyk stated that
“[s]ubstantial prejudice results, for example, from the prosecution’s use of
confidential information pertaining to defense plans and strategy, and from other
actions designed to give the prosecution an unfair advantage at trial.” Id. (citation
and quotation marks omitted).

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In the context of sealing matters related to competency evaluations,
Guerrero recognized that defendants have the protections of the attorney-client
privilege, but also stated that:
Guerrero has not shown that his interest in maintaining
the confidentiality of his attorney communications would
be significantly harmed if the proceeding is open.
Guerrero has already agreed to share the privileged
documents with the Government and his co-defendant,
and the district court has issued an order that prohibits
the use at trial of privileged information disclosed during
the competency hearing. Because Guerrero’s
confidential communications will not be used against him
in a criminal proceeding, his primary interest in the
privilege is protected.
693 F.3d at 1003-04 (citation omitted).
3.

Fair Trial
“Closure [of a court proceeding] may be ordered on the basis of a

defendant’s Sixth Amendment right to a fair trial only if, ‘first, there is a
substantial probability that the defendant’s right to a fair trial will be prejudiced by
publicity that closure would prevent and, second, reasonable alternatives to closure
cannot adequately protect the defendant’s fair trial rights.” Id. at 1002 (quoting
Press-Enterprise II, 478 U.S. at 14). “[W]e look to the publicity’s capacity to
inflame and prejudice the entire community [and whether it] . . . create[s] a pattern

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of deep and bitter prejudice throughout the community.” Id. (citation and
quotation marks omitted).
B.

Specific Findings
While the court will release the competency hearing transcript and the

competency evaluation report, both documents will be redacted where it is
“essential to preserve higher values and is narrowly tailored to serve that interest.”
Press-Enterprise I, 464 U.S. at 510. As required, the court now makes specific
findings as to those redactions. See id.
1.

Competency Hearing Transcript
The beginning of the December 13, 2018 hearing before Magistrate

Judge Puglisi concerned Kealoha’s competency evaluation and was held with all
parties present. See Kealoha, Cr. No. 17-00582 JMS-RLP, ECF No. 289-1. The
court will unseal this part of the transcript. See id. After that hearing, an in camera
hearing was held with only Kealoha and her attorney, Cynthia Kagiwada, in
attendance. See id. The subject matter of the in camera hearing did not involve the
competency evaluation determination, and further, it included matters that directly
implicate the attorney-client privilege and Kealoha’s right to a fair trial. Therefore,
the court will redact all parts of the transcript relating to the in camera hearing.
Kealoha’s interest in maintaining the confidentiality of those attorney-client

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communications would be “significantly harmed” if that transcript was made
available to either the government or the public, Guerrero, 693 F.3d at 1003, and
access to those communications is likely to give “the prosecution an unfair
advantage at trial,” United States v. Danielson, 325 F.3d 1054, 1069 (9th Cir.
2003) (citation and quotation marks omitted).
2.

Competency Evaluation Report
A redacted version of the competency evaluation report, ECF

No. 292, was previously provided to the government and Kealoha, but not the
public. Prior to allowing that access, Magistrate Judge Puglisi redacted portions of
the report to remove mentions of attorney-client communications. The court finds
that Kealoha would be “significantly harmed” if those communications were made
available to either the government or the public, Guerrero, 693 F.3d at 1003, and
access to those communications is likely to give “the prosecution an unfair
advantage at trial,” Danielson, 325 F.3d at 1069 (citation and quotation marks
omitted). Thus, these redactions remain in effect.
The court will also protect Kealoha’s privacy rights by redacting the
majority of Kealoha’s medical information from the competency evaluation report.
The public will still have access to some information arising from the competency
evaluation itself — including observations made and tests conducted by the

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forensic psychiatrist — in order to support the public’s “interest in obtaining
information bearing on the workings of the criminal justice system.” Kaczynski,
154 F.3d at 932.
Finally, the court will make two additional redactions to the
competency evaluation report — each of which contain a comment made by
Kealoha. These comments have great potential to prejudice Kealoha, while adding
little to the public’s understanding of the competency evaluation. This is
particularly true in light of the publicity in this case and the rapidly approaching
trial date. Thus, the following redactions are made to preserve Kealoha’s right to a
fair trial: (1) on the second page of the report, in the third paragraph under the
heading “Present History”; and (2) on the third page of the report, in the last
paragraph before the heading “Psychiatric History.”
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III. CONCLUSION
For the foregoing reasons, the Motion for Reconsideration is
GRANTED in part and DENIED in part. Redacted versions of the competency
hearing transcript and the competency evaluation report will be filed by the court. 4
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, April 4, 2019.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

In Re: Motion to Unseal Court Records, Misc. No. 18-00477 JMS-RLP, Order Granting in Part
and Denying in Part Petitioner’s Motion for Reconsideration, ECF No. 13

4

The redacted transcript will be made available pursuant to the Guide to Judiciary
Policy. See Guide to Judiciary Policy, Vol. 6 §§ 510.25, 510.25.10, available at
http://jnet.ao.dcn/policy-guidance/guide-judiciary-policy/volume-6-court-reporting/ch-5transcripts.
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