COLE et al v. STATE OF MAINE OFFICE OF INFORMATION TECHNOLOGY

Filing 29

ORDER reserving ruling on 26 Motion to Seal By JUDGE JOHN A. WOODCOCK, JR. (ccs)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
KAYLA MARIE COLE and
TERESA L. GORDON,
Plaintiffs,
v.
STATE OF MAINE, OFFICE OF
INFORMATION TECHNOLOGY,
Defendant.

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No. 1:17-cv-00071-JAW

ORDER ON MOTION TO SEAL
Raising issues of the right of public access to judicial records, the Court defers
ruling on a motion to seal portions of a pending motion for summary judgment and
declaration in support of the motion for summary judgment to give the movant an
opportunity to reassess its position and file a supplementary memorandum.
I.

BACKGROUND
On February 23, 2017, Kayla Marie Cole and Teresa L. Gordon filed suit in

this Court against the State of Maine Office of Information Technology (OIT), alleging
that the OIT, their former employer, violated the Civil Rights Act of 1964, 42 U.S.C.
§§ 2000e, et seq, (Title VII), the Maine Human Rights Act, 5 M.R.S. §§ 4551 et seq.
(MHRA), and the Maine Whistleblowers’ Protection Act, 26 M.R.S. §§ 831, et seq.
(WPA). Compl. (ECF No. 1). On May 19, 2017, OIT answered the Complaint, denying
its essential allegations and raising certain affirmative defenses. Answer to Compl.
(ECF No. 5). On August 11, 2017, OIT filed an amended answer. Am. Answer to
Compl. (ECF No. 11). On September 13, 2017, OIT filed a motion for court approval

of a confidentiality agreement, and on the same day, the Court granted the motion.
Consent Mot. for Confidentiality Order (ECF No. 12); Consent Confidentiality Order
(ECF No. 13).
On October 13, 2017, OIT filed a notice of intent to file a motion for summary
judgment. Def.’s Notice of Intent to Move for Summ. J. (ECF No. 15). The Court held
a Local Rule 56(h) conference on November 8, 2017. Min. Entry (ECF No. 19). On
December 15, 2017, OIT moved for an order placing portions of the deposition of
James Smith under seal. Def.’s Mot. to Seal (ECF No. 22). On December 17, 2017,
the Magistrate Judge granted the motion to seal. Order Granting Mot. to Seal (ECF
No. 25).
On December 21, 2017, OIT moved to seal portions of its motion for summary
judgment on the ground that the redacted portions of its filings “contain personnel
information about a third party to this matter.” Def.’s Mot. to Seal (ECF No. 26)
(Def.’s Mot.). OIT states that the “redacted information is not contained in or related
to a ‘final written decision,’ and therefore, is not public information.” Id. at 2. OIT
filed public versions of the documents. Id.; (ECF Nos. 27-28).
II.

OIT’s POSITION
OIT presents two reasons for sealing the filed documents: (1) the documents

are confidential because the parties must comply with the confidentiality agreement
and (2) the sealed information is deemed confidential under 5 M.R.S. § 7070, Maine’s
Personnel Records statute. Id. at 1-3.

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III.

DISCUSSION
A.

The Consent Confidentiality Agreement and Order

The Court rejects the first basis for the motion to seal, namely the argument
that the confidentiality agreement and order require that confidential matters be
sealed. In United States v. Kravetz, 706 F.3d 47 (1st Cir. 2013), the First Circuit
distinguished between the public right of access to discovery materials and the public
right of access to materials submitted by parties to obtain a judicial ruling. Id. at 5359. The Kravetz Court confirmed that “with respect to civil discovery . . ., there is no
right of public access.”

Id. at 55.

Thus, the public “has no common law or

constitutional right of access to materials that are gained through civil discovery but
neither introduced as evidence at trial nor submitted to the court as documentation
in support of motions or trial papers.” Id.
Consistent with Kravetz, during discovery, the parties were free to enter into
confidentiality agreements, in this case approved by the Court, to control
dissemination of the produced information without impinging on the public right of
access. But the confidentiality agreement for discovery purposes cannot control the
public’s right of access to materials “introduced as evidence at trial [or] submitted to
the court as documentation in support of motions or trial papers.” Id. Moreover, the
confidentiality agreement itself provides that “[n]othing in this Order or any action
or agreement of a party under this Order limits the Court’s power to make orders
concerning the disclosure of documents produced in discovery or at trial.” Consent
Confidentiality Order at 6 (ECF No. 13).

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In short, under its own terms and under First Circuit precedent, the
confidentiality agreement entered into by the parties and affirmed by the Court has
nothing to do with whether the contents of a document submitted by the parties to
influence judicial decision-making is protected from disclosure to the public.
B.

Maine’s Civil Service Law

As Kravetz explained, once a party submits information to a court and urges
consideration of the information for purposes of making a judicial ruling, the public
right of access presumptively applies to that information because the information is
deemed “judicial records” or “materials on which a court relies in determining the
litigants’ substantive rights.”

Kravetz, 706 F.3d at 54.

Thus, in Kravetz, the

presumptive public right of access attached to sentencing memoranda and character
letters that the parties submitted to a judge for sentencing purposes. Id. at 54-59.
At the same time, the First Circuit observed “[t]hough the public’s right of
access is vibrant, it is not unfettered.” Id. at 59.
When addressing a request to unseal, a court must carefully balance the
presumptive public right of access against the competing interests that
are at stake in a particular case, keeping in mind that “‘only the most
compelling reasons can justify non-disclosure of judicial records’ that
come within the scope of the common law right of access.”
Id. at 59 (quoting In re Providence Journal Co., 293 F.3d 1, 10 (1st Cir. 2002) (quoting
FTC v. Standard Fin. Mgmt. 830 F.3d 404, 410 (1st Cir. 1987)). To seal portions of a
judicial document, the First Circuit requires a “detailed explanation” and it
emphasizes that “sealing of judicial documents ‘must be based on a particular factual
demonstration of potential harm, not on conclusory statements.’” Id. at 60 (quoting

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Standard Fin. Mgmt., 830 F.3d at 412 (quoting Anderson v. Cryovac, Inc., 805 F.2d
1, 7 (1st Cir. 1986))).
OIT offers an alternative basis for sealing portions of the submitted material:
5 M.R.S. § 7070, the Maine Civil Service Law. OIT says that the sealed information
involves “documents contain[ing] confidential personnel information about a third
party to this matter.” Def.’s Mot. at 2. The Kravetz Court addressed the privacy
rights of third parties. Id. at 61-63. The First Circuit observed that “[P]rivacy rights
of participants and third parties are among those interests which, in appropriate
cases, can limit the presumptive right of access to judicial records.” Id. at 61 (quoting
Standard Financial Mgmt., 830 F.2d at 411) (modification in original). The Kravetz
Court wrote that a court may consider the privacy rights of a third party, which have
been referred to as “a venerable common law exception to the presumption of access,”
id. at 62 (quoting United States v. Amodeo, 71 F.3d 1044, 1051 (2nd Cir. 1995)), and
weigh the third party’s interests “in a court’s balancing equation.” Id. (quoting
Amodeo, 71 F.3d at 1050). In making this evaluation, the First Circuit stated that
courts should “consider the degree to which the subject matter is traditionally
considered private rather than public.” Id. (quoting United States v. Connolly (In re
Boston Herald), 321 F.3d 174, 190 (1st Cir. 2003)). Thus, “[f]inancial records of a
wholly owned business, family affairs, illnesses, embarrassing conduct with no public
ramifications, and similar matters will weigh more heavily against access than
conduct affecting a substantial portion of the public.” Id. at 62 (quoting Amodeo, 71
F.3d at 1051).

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Based on Kravetz alone, the Court would not seal the information that OIG has
redacted. One of OIT’s arguments in its motion for summary judgment is that the
Plaintiffs are unable to present a genuine issue of material fact as to whether they
were disciplined differently than similarly situated male employees.

Def.’s Mot.

Attach 1 Def.’s Mot. for Summ. J. at 6; Redacted Def.’s Mot. for Summ. J. at 6 (ECF
No. 27). OIT asserts that “Plaintiffs cannot point to any male employee of OIT who
engaged in the same conduct for which Plaintiffs were investigated and disciplined
who was treated more favorably.” Id. at 7. OIT then points out that a male employee
had left state employment by the time of the investigation and was therefore not
subject to investigation and discipline. Id. OIT seeks to redact the employment
information about the male employee. Id. From the Court’s perspective, the dates of
a public employee’s employment would not implicate third party privacy rights under
Kravetz.
The Maine Supreme Judicial Court illuminated the scope of the privacy
protections of the Maine Civil Service Law. Guy Gannett Pub. Co. v. Uni. of Me., 555
A.2d 470 (Me. 1980). As background, the Maine Supreme Judicial Court observed
that Maine’s Freedom of Access Act, 1 M.R.S. § 408, is to be “liberally construed and
applied” and “a corollary to such liberal construction of the Act is necessarily a strict
construction of any exceptions to the required public disclosure.” Id. at 471 (quoting
Moffett v. City of Portland, 400 A.2d 340, 348 (Me. 1979)). In Guy Gannett, the Maine
Law Court drew a distinction between medical information, covered by 5 M.R.S. §
7070(2)(A), and other personnel records, covered by 5 M.R.S. § 7070(2)(E). Id. at 471-

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72. The “statutory exception protecting medical information ‘of any kind’ is broadly
drawn;” by contrast, as regards other information, the statute is “narrowly drawn”
and “does not protect all information pertaining to misconduct.” Id.
Applying Guy Gannett, the Court is not convinced that the protections of the
Maine Civil Service Law are implicated in the redacted material.

OIT’s

memorandum in support of its motion for summary judgment and its submitted
declaration of James Smith, the Chief Information Officer (CIO) for OIT, refer to the
male employee by initials only, note that by the time OIT investigated the Plaintiffs,
the male employee was no longer employed by OIT, and assert that CIO Smith
emailed Human Services to claim that if the male employee had still been employed
at OIT when OIT investigated the Plaintiffs, OIT would have investigated him too.
Def.’s Mot. Attach. 1 Def.’s Mot. for Summ. J. at 7; id. Attach. 3 Decl. of James Smith
at 1.
The Maine Civil Service Law does not list the dates of a public employee’s
employment with the state as among the protected “personal information” so the
Court is not clear why the fact that an employee left state employment by a certain
date is confidential.

See 5 M.R.S. § 7070(2)(A-E).

Furthermore, under section

7070(E), it is only “accusations of misconduct . . . that may result in disciplinary
action” that are protected from disclosure. OIT has not demonstrated that CIO
Smith’s email to Human Resources about the male employee would have resulted in
disciplinary action against the male employee, who by that time was no longer
employed by OIT.

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Finally the Court is troubled by the public policy implications of the sealing of
this material.

Here, the Plaintiffs are asserting that the OIT disciplined them

because they complained that Joshua Karstens, a male supervisor, sexually harassed
one of them and that when they complained, OIT retaliated against them by
disciplining them because of their complaints. Compl. at 1-10. OIT has responded
that it would have disciplined a male employee in the same fashion for the same
conduct, but that the male employee had left state service and could not be
disciplined.
These issues are manifestly a matter of public concern and making public the
information underlying both the charge and the defense would promote “public
monitoring of the judicial system”, which in turn “fosters the important values of
quality, honesty and respect for our legal system.” Kravetz, 706 F.3d at 52 (quoting
In re Providence Journal, 293 F.3d at 9). In addition, just as OIT’s actions or inaction
against the male employee are at issue in the motion for summary judgment, OIT’s
position would presumably be a part of its defense if the case were to go to trial and
the Court cannot conceive of closing the courtroom during a public trial to allow the
parties to present evidence about the male employee. If this information would be
made public at trial, the Court is not clear why it should be sealed during a paper
trial, namely the resolution of the dispositive motion OIT has filed.
The Court adds this caveat. As the Plaintiffs’ allegations against the male
employee’s purported misconduct implicate his privacy rights as a third party to the
litigation, the Court envisions the least restrictive means of protecting his privacy

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and is open to alternative means to protect his privacy, either by referring to him by
his initials or by John Doe. However, based on Kravetz, the Court is troubled by the
wholesale sealing of all information underlying the Plaintiffs’ allegations and OIT’s
defense.
As OIT’s motion to seal was perfunctory, the Court will allow OIT an
opportunity to respond to this Order and supplement its motion to seal. The Court
ORDERS OIT to state its position on its motion to seal by January 18, 2018 in light
of the concerns the Court has raised in this Order. If it elects to object to the Court’s
Order, OIT should file a supplementary memorandum explaining its position no later
than January 18, 2018. Plaintiffs may, but are not required to, state their position
and file a memorandum no later than January 18, 2018.
IV.

CONCLUSION
The Court DEFERS ruling on Defendant’s Motion to Seal (ECF No. 26) until

January 18, 2018.
SO ORDERED.

/s/ John A. Woodcock, Jr.
JOHN A. WOODCOCK, JR.
UNITED STATES DISTRICT JUDGE
Dated this 3rd day of January, 2018

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