American Civil Liberties Union of Massachusetts v. Leavitt

Filing 98

Judge Richard G. Stearns: MEMORANDUM and ORDER entered granting 51 Motion to Unseal Documents; denying 53 Motion to Seal Documents; denying 63 Motion to Seal; denying 83 Motion to Seal Document (RGS, law2)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
CIVIL ACTION NO. 09-10038-RGS
AMERICAN CIVIL LIBERTIES UNION OF MASSACHUSETTS
v.
KATHLEEN SEBELIUS, et al.
MEMORANDUM AND ORDER ON MOTIONS TO SEAL/UNSEAL
CERTAIN DOCUMENTS IN A CIVIL CASE
October 6, 2011
STEARNS, D.J.
Presently before the court are four motions to seal/unseal certain documents in
a civil case. Plaintiff American Civil Liberties Union of Massachusetts (ACLU) claims
that defendants are violating the Establishment Clause of the First Amendment by
allowing the United States Conference of Catholic Bishops (USCCB) to impose a
religiously-based restriction on the disbursement of taxpayer-funded services. Both the
ACLU and the government defendants argue in favor of unsealing certain documents,
namely the Technical Proposal (and Amended Technical Proposal) that USCCB
submitted in response to the government’s Request for Proposals; the Subcontract
Agreement between USCCB and its subcontractors; and the Program Operations
Manual that USCCB distributes to its subcontractors. Defendant-Intervenor USCCB
opposes the motion to unseal and has filed three motions to permit the filing of these

documents under seal.
The First Amendment militates against overly broad confidentiality designations.
See Pub. Citizen v. Liggett Grp., Inc., 858 F.2d 775, 780 (1st Cir. 1988) (“[T]he
Supreme Court has noted that parties have general first amendment freedoms with
regard to information gained through discovery and that, absent a valid court order to
the contrary, they are entitled to disseminate the information as they see fit.”);
Anderson v. Cryovac, Inc., 805 F.2d 1, 8 (1st Cir. 1986) (noting that “[t]he district
court demonstrated a sensitivity to first amendment concerns by striving to keep the
protective orders as narrow as possible.”); Citizens First Nat’l Bank of Princeton v.
Cincinnati Ins. Co., 178 F.3d 943, 945 (7th Cir. 1999) (“[W]e note that both the First
and Third Circuits, which used to endorse broad umbrella [protective] orders (e.g.,
Cryovac, Cipollone), have moved away from that position (Public Citizen, Glenmede,
Pansy, Leucadia).”).
Here, the public’s right of access outweighs USCCB’s speculative concern that
information contained in the documents at issue could be appropriated and exploited
by other non-profit organizations competing with USCCB for grants and contracts.
See Pub. Citizen, 858 F.2d at 789-790. The court will UNSEAL exhibits previously
filed under seal. Specifically, the Technical and Amended Technical Proposals, the
Subcontract Agreement between USCCB and its subcontractors, and the USCCB
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Program Operations Manual (and duplicates of these documents) will be unsealed. The
court is aware that these documents have been previously disclosed and are to some
degree already in the public domain. Consequently, the court considers them to lie
outside the scope of the Protective Order entered by the court on March 17, 2011.
Finally, the court notes that a policy of broad public access is consistent with the
position taken by the Judicial Conference of the United States at its September 2011
meeting with respect to the sealing of civil case records. Plaintiff’s request for
attorneys’ fees is DENIED.
SO ORDERED.
s/ Richard G. Stearns
_______________________________
UNITED STATES DISTRICT JUDGE

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