Belbachir v. County of McHenry et al

Filing 549

WRITTEN Opinion entered by the Honorable Philip G. Reinhard on 11/9/2012: For the reasons set forth below, the magistrate judges orders 174 220 in case number 08 C 50193 and 436 516 in case number 06 C 1392 are upheld as modified.[For further details see order.] Electronic notice(jat, )

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Philip G. Reinhard

CASE NUMBER

08 C 50193
06 C 1392

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

11/9/2012

Belbachir vs. United States

DOCKET ENTRY TEXT:

For the reasons set forth below, the magistrate judge’s orders [174] [220] in case number 08 C 50193 and
[436] [516] in case number 06 C 1392 are upheld as modified.

O[ For further details see text below.]

Electronic Notices.

STATEMENT
This matter is before the court on plaintiff’s objections [188] [223] to two nondispositive orders of the
magistrate judge [174] [220] allowing some portions of the record to remain under seal.1 In reviewing a
magistrate judge’s order in a nondispositive matter, the district court “must consider timely objections and
modify or set aside any part of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a).
This case and case number 06 C 1392 were consolidated for purposes of discovery. On November 5,
2009, the magistrate judge entered a protective order covering materials to be disclosed by the United States
which fell within the scope of 8 C. F. R. § 236.6 which prohibits the disclosure of the name of, or other
information relating to, an immigration detainee. On February 3, 2010, the magistrate judge entered another
protective order covering the disclosure of “[l]aw enforcement techniques and procedures of a confidential
nature” and noting that “[u]nnecessary dissemination or disclosure of such highly sensitive and confidential
information during the course of discovery or otherwise could jeopardize the safety of law enforcement
agents and others.” No objections pursuant to Rule 72(a) were made to these protective orders.
When the United States filed its motion for summary judgment, it filed its memorandum, statement of
facts, and all its exhibits under seal. It did not comply with LR 5.8 which governs filing materials under seal.
Rather, in a motion (also filed under seal) for leave to file a brief in excess of the page limits set by local rule
and to reference statements of fact filed in 06 C 1392, it states the proposed memorandum and statement of
facts are “filed under seal due to the necessity to discuss material subject to protective orders that have been
entered in this case.” The McHenry County Defendants ( McHenry County, Sheriff Keith Nygren, Chief of
Corrections Tom Svoboda, Correctional Officer (“CO”) Brad Drach, CO Kevin Ford, CO Keith Gorak, CO
Gerald Broderick and CO Daniel Sitkie) likewise filed all of their summary judgment materials under seal in
06 C 1392. Plaintiff moved to unseal all of the documents filed under seal.
As noted above, the protective orders dealt with the limited issues of information regarding
immigration detainees and “[l]aw enforcement techniques and procedures of a confidential nature” which
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STATEMENT
“could jeopardize the safety of law enforcement agents and others.” In addressing the motion to unseal, the
magistrate judge directed the United States to review all of the documents filed under seal and determine
which of those documents it believed should be unsealed, unsealed with redactions, or remain under seal.
The United States prepared this report which recommended unsealing most of the documents but
recommended redacting federal law enforcement officers’ names, redacting portions of Hassiba’s asylum
request, redacting “detainee safety information,” redacting information concerning the report of alleged use
of a fraudulent document, redaction of telephone and ID numbers, redactions related to detainee transfer and
security, and redactions of portions of the McHenry Jail Review 2004. The United States proposed only
filing the portions of its deposition exhibits that it cited in its memoranda. It maintained that the “Standard
Operating Procedure Passenger Processing” must remain under seal. Plaintiff agreed to the redaction of
telephone numbers from Exhibit E to the United States motion for summary judgment but opposed any of the
other proposed redactions, the limitation to filing only the cited portions of deposition transcripts and keeping
any document completely under seal. The magistrate judge adopted the report of the United States and
plaintiff filed objections.
The United States also filed reports concerning plaintiff’s responses to the summary judgment
motions in both cases and to the defendants’ replies. These reports recommended similar redactions of
federal law enforcement names, “law enforcement sensitive information,” “detainee safety information,” and
keeping Exhibit 9 (a report on others who had committed suicide while detained) to plaintiff’s response to
summary judgment under seal. Plaintiff agreed to redacting the names of detainees in Exhibit 9 but opposed
any other redactions or keeping any other information under seal. The magistrate judge adopted these reports
by the United States and plaintiff filed objections.
The magistrate judge’s orders are reviewed under the clearly erroneous or contrary to law standard.
Fed. R. Civ. P. 72(a). “Documents that affect the disposition of federal litigation are presumptively open to
public view, even if the litigants strongly prefer secrecy, unless a statute, rule, or privilege justifies
confidentiality.” In re Specht, 622 F.3d 697, 701 (7th Cir. 2010); see also, Union Oil Co. v. Levell, 220 F.3d
562 (7th Cir. 2000); Citizens First Nat’l Bank v. Cincinnati Ins. Co., 178 F.3d 943 (7th Cir. 1999). “The
strong presumption of public disclosure applies only to the materials that formed the basis of the parties’
dispute and the [court’s] resolution.” Baxter Int’l, Inc. v. Abbott Laboratories, 297 F.3d 544, 548 (7th Cir.
2002).
The documents at issue were offered by the parties in support of, or in opposition to, motions for
summary judgment and to dismiss. The United States claims federal law enforcement officers names must be
redacted from the documents (i.e., memorandum in support of summary judgment, statement of material
facts, index to depositions, index to exhibits to statement of material facts.) However, a review of these
proposed redactions and the record shows that the names of federal law enforcement officers appear in
documents in the record that are unsealed such as defendant’s response [59] to a motion to compel answers to
discovery. The United States’ inclusion of the names of the officers in this unsealed document belies its
claim these names must be redacted in other documents. Federal officers’ names also appear in the
complaint [1], and plaintiff’s motion to compel [53] which includes as an exhibit the United States’ response
to plaintiff’s first set of interrogatories [53-1] which itself includes officers’ names. The response to
interrogatories did not bear any statement claiming that the disclosure of the officers’ names was subject to a
protective order. Such a statement was required by the February 3, 2010 protective order [47]. Because the
information sought to be redacted is available in other documents available to the public, the order requiring
the federal law enforcement officers’ names to be redacted was contrary to law.
The United States claims questions and answers between a CBP officer and Hassiba must be redacted
pursuant to 8 C.F.R. § 208.6 which prohibits disclosure of information related to an asylum request without
the written consent of the applicant. However, the regulation is designed to protect the confidentiality of
asylum applicants to prevent “the disclosure of facts that would link the alien’s identity with the fact that the
alien has applied for asylum.” Lin v. United States, 459 F.3d 255, 263 (2nd Cir. 2006). This is to protect the
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STATEMENT
alien from a further risk of persecution in the alien’s home country due to having applied for asylum. See id.
at 268. Hassiba’s death moots this concern. The United States did not redact references to Hassiba’s having
applied for asylum when it filed the amended-redacted version of its reply brief. [225] 8 C.F.R. § 208.6 is
not a basis for redacting the subject information. The order requiring this information to be redacted was
contrary to law.
Another category of information the United States claims should be redacted is “detainee safety
information.” The redaction of the names of detainees other than Hassiba and any other information relating
to them is properly redacted pursuant to 8 C.F.R. § 236.6 which prohibits the disclosure of such detainee
information. The United States asked redaction of portions of the depositions of Keith Seegers and Kenneth
Ludvigsen and redaction of information in plaintiff’s exhibits 8,9,10,12 filed in opposition to the McHenry
Defendant’s summary judgment motion.. None of the redacted information “formed the basis of the parties’
dispute and the [court’s] resolution” so the redactions may stand. Baxter, 297 F.3d at 548.
The United States also advances a number of “law enforcement sensitive information” redactions.
These include redactions on page 2 of plaintiff’s statement of additional facts in opposition to the Centgra
Defendants’ summary judgment motion, page 56 of plaintiff’s statement of additional facts in opposition to
the McHenry Defendant’s summary judgment motion, pages 5,6, and 7 of plaintiff’s statement of additional
facts in opposition to the United States summary judgment motion, portions of the deposition of the chief
immigration enforcement officer at Broadview, pages 6 and 7 of the Centegra Defendants’ response to
plaintiff’s statement of additional facts, portions of an ICE officer’s deposition, portions of the United States’
response to plaintiff’s statement off additional facts. None of the redacted information “formed the basis of
the parties’ dispute and the [court’s] resolution” so the redactions may stand. Baxter, 297 F.3d at 548.
The United States maintains that it’s Standard Operating Procedures Passenger Processing (U.S.
Exhibit O & McHenry Exhibit 4) must remain under seal. This document did not form the basis of the
court’s resolution of this case so it may remain under seal. Baxter, 297 F.3d at 548.
Exhibit 2 to docket number 376 in case number 06 C 1392 was withdrawn and never refiled so it is
not in the record.
The United States does not ask that the Stone Park Police radio log (U.S. Exhibit R) remain under seal
so it is unsealed.
The McHenry Jail Review 2004 (U.S. Exhibit DD) is proposed to be filed with redactions. The
reasons for the redactions are said to be provided in a separate appendix but that appendix is not in the
record. In the absence of any articulated reasons for the redactions, the request for redactions must fail. The
order allowing these redactions is contrary to law.
Plaintiff’s Exhibit 9 in response to the United States’ motion for summary judgment is an extensive
collection of data concerning other detainee suicides and suicide attempts. The United States asks to keep
this document under seal because of the confidentiality obligations of 8 C.F.R. § 236.6. Plaintiff argues this
obligation can be satisfied by redacting the confidential information rather than leaving the entire document
under seal. The privacy concerns that Section 236.6 seeks to protect are significant. The magistrate judge’s
decision to protect those interests by sealing the document rather than ordering redactions is not clearly
erroneous.
The United States asks redactions in plaintiff’s Exhibit 14 in response to the McHenry County
Defendants’ motion for summary judgment. It seeks to have the information related to an inmate witness
redacted (plaintiff does not object to this redaction) as well as information concerning Stone Park personnel.
Plaintiff does not specify why he opposes the redaction of the names of Stone Park personnel. The statement
in this exhibit of the Stone Park officer was not a factor in the decision of this case so the redaction of the
officer’s name was not contrary to law. Baxter, 297 F.3d at 548.
For the foregoing reasons, the magistrate judge’s orders are upheld as modified.

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STATEMENT

1. Identical objections [454] [534] and orders [436] [516] were also file in case # 06 C 1392 and
this order disposes of those objections and will be entered in that case as well.

08C50193 Belbachir vs. United States

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