Drummond v. Mabus
Filing
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ORDER denying 19 Motion to Seal 18 PROPOSED SEALED Exhibit I - Signed by U.S. Magistrate Judge Kimberly A. Swank on 7/26/2016. (Baker, C.)
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
EASTERN DIVISION
NO. 4:15-CV-110-FL
DAVID C. DRUMMOND,
Plaintiff,
v.
RAY MABUS, Secretary of the U.S.
Department of the Navy,
Defendant.
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ORDER
This employment discrimination action is before the court on Defendant’s
motion to seal the Department of the Navy’s EEO investigative file, which has been
submitted as an exhibit to Defendant’s motion to dismiss or, alternatively, for
summary judgment, the matter having been referred to the undersigned by the
Honorable Louise W. Flanagan, United States District Judge, for disposition
pursuant to 28 U.S.C. § 636(b)(1)(A). Plaintiff has not responded to Defendant’s
motion, and the time for doing so has expired.
For the reasons stated below,
Defendant’s motion to seal is denied without prejudice.
Before sealing a publicly filed document, the court must determine if the source
of the public’s right to access the documents is derived from the common law or the
First Amendment. Stone v. Univ. of Md., 855 F.2d 178, 180 (4th Cir. 1988). “[T]he
common law presumption in favor of access attaches to all records and documents,”
whereas “the First Amendment guarantee of access has been extended only to
particular judicial records and documents.” Stone, 855 F.2d at 180-81 (internal
quotation marks and citations omitted); see, e.g., Rushford v. The New Yorker
Magazine, Inc., 846 F.2d 249, 253 (4th Cir. 1988) (finding that documents filed in
connection with summary judgment motion fall under the First Amendment right to
access). The common law presumption “‘can be rebutted if countervailing interests
heavily outweigh the public interests in access,’ and ‘[t]he party seeking to overcome
the presumption bears the burden of showing some significant interest that
outweighs the presumption.’” Va. Dep’t of State Police v. Washington Post, 386 F.3d
567, 575 (4th Cir. 2004) (quoting Rushford, 846 F.2d at 253). However, the denial of
access under the First Amendment “must be necessitated by a compelling
government interest and narrowly tailored to serve that interest.” Rushford, 846 F.2d
at 253.
To determine whether records should be sealed, this court must follow the
procedure established in In Re Knight Publ. Co., 743 F.2d 231 (4th Cir. 1984). First,
the court must provide public notice of the request to seal and allow the interested
parties a reasonable opportunity to object. Id. at 235-36. Notice is sufficient where
a motion is docketed reasonably in advance of its disposition. Id. at 235. Second, the
court considers less drastic alternatives, such as redaction of any sensitive material.
Id. at 235-36. Then, if the court determines that public access should be denied, the
court must provide specific reasons and factual findings supporting the decision to
seal. Id.
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Here, Defendant seeks to seal the Navy’s EEO investigative file in its entirety
because it “contains sensitive demographic and personally identifiable information
(PII) that was created as part of a confidential EEO investigation.” (Def.’s Mot. to
Seal [DE #19] at 1.) Defendant maintains that such information is protected from
public disclosure by the Privacy Act, 5 U.S.C. § 522a. The motion to seal was filed on
November 30, 2015, and it has been accessible to the public on the court’s
computerized case management and case filing system since that time. Thus, the
public has been provided with notice and an opportunity to object to Defendant’s
motion. See Knight, 743 F.2d at 234 (noting that the Third Circuit found notice
sufficient where a motion was docketed reasonably in advance of its disposition); see
also Oliver v. Williams, No. 5:09-CT-3027-H, 2010 WL 2927456, at *1 (E.D.N.C. July
21, 2010).
Defendant’s motion to seal the investigative file in its entirety implicates the
right of access under the First Amendment. See Rushford, 846 F.2d at 253 (citing
Publicker Industries, Inc. v. Cohen, 733 F.2d 1059, 1067-71 (3d Cir. 1984) (concluding
that the First Amendment guarantees to the public and to the press the right of access
to civil trials). The Privacy Act states “No agency shall disclose any record which is
contained in a system of records . . . , except pursuant to a written request by, or with
the prior written consent of, the individual to whom the record pertains . . . .” 5 U.S.C.
§ 552a(b). Plaintiff is the complainant to whom the EEO investigative file pertains,
and Plaintiff has filed certain documents contained in the investigative file as
exhibits to his amended complaint. As such, Defendant has not provided sufficient
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argument under the First Amendment to support sealing the entire file. Nor has
Defendant, in light of the more stringent standard, adequately demonstrated there
are no alternatives to sealing the file in its entirety, such as redaction of any
purportedly confidential information concerning individuals other than Plaintiff.
Defendant has failed to adequately support its motion to seal [DE #19], and the
motion is, therefore, DENIED WITHOUT PREJUDICE.
This 26th day of July 2016.
_________________________________________
KIMBERLY A. SWANK
United States Magistrate Judge
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