Doe 1 v. McAleenan

[2] 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION [6] 7 JANE DOE 1, et al., Case No. 18-cv-02349-BLF 8 Plaintiffs, ORDER GRANTING IN PART AND 9 v. DENYING IN PART PLAINTIFFS’ ADMINISTRATIVE MOTION TO FILE 10 JENNIFER B. HIGGINS, et al., UNDER SEAL PORTIONS OF PLAINTIFFS’ OPPOSITION TO 11 Defendants. DEFENDANTS’ MOTION TO DISMISS 12 [Re: ECF 407] 13 Before the Court is Plaintiffs’ administrative motion to file under seal portions of their 14 opposition to Defendants’ motion to dismiss and associated exhibits. ECF 407. Plaintiffs filed 15 their request because portions of the opposition to Defendants’ motion to dismiss were designated 16 by Defendants as “Highly Confidential/Attorneys’ Eyes Only” or “Confidential” pursuant to the 17 amended protective order (ECF 256) or which Plaintiffs understand Defendants would wish to 18 keep under seal based on such designations. ECF 407, at 1. Defendants filed declarations in 19 regarding the filing these portions under seal. ECF 412. For the reasons stated below, the motion is 20 GRANTED IN PART and DENIED IN PART. [21] 22 I. LEGAL STANDARD 23 “Historically, courts have recognized a ‘general right to inspect and copy public records 24 and documents, including judicial records and documents.’” Kamakana v. City and Cnty. of 25 Honolulu, 447 F.3d 1172 , 1178 (9th Cir. 2006) (quoting Nixon v. Warner Commc’ns, Inc., 435 26 U.S. 589 , 597 & n.7 (1978)). Consequently, filings that are “more than tangentially related to the 27 merits of a case” may be sealed only upon a showing of “compelling reasons” for sealing. Ctr. for 1 tangentially related to the merits may be sealed upon a lesser showing of “good cause.” Id. at 2 1097. 3 Sealing motions filed in this district also must be “narrowly tailored to seek sealing only of 4 sealable material, and must conform with Civil L.R. 79-5(d).” Civil L.R. 79-5(b). Under Civil 5 Local Rule 79-6(d), the submitting party must attach a “proposed order that is narrowly tailored to 6 seal only the sealable material” which “lists in table format each document or portion thereof that 7 is sought to be sealed.” In addition, a party moving to seal a document in whole or in part must file 8 a declaration establishing that the identified material is “sealable.” Civ. L.R. 79-5(d)(1)(A). 9 “Reference to a stipulation or protective order that allows a party to designate certain documents 10 as confidential is not sufficient to establish that a document, or portions thereof, are sealable.” Id. 11 Where the moving party requests sealing of documents because they have been designated 12 confidential by another party or a non-party under a protective order, the burden of establishing 13 adequate reasons for sealing is placed on the designating party or non-party. Civ. L.R. 79-5(e). 14 The moving party must file a proof of service showing that the designating party or non-party has 15 been given notice of the motion to seal. Id. “Within 4 days of the filing of the Administrative 16 Motion to File Under Seal, the Designating Party must file a declaration . . . establishing that all of 17 the designated material is sealable.” Civ. L.R. 79-5(e)(1). “If the Designating Party does not file a 18 responsive declaration . . . and the Administrative Motion to File Under Seal is denied, the 19 Submitting Party may file the document in the public record no earlier than 4 days, and no later 20 than 10 days, after the motion is denied.” Civ. L.R. 79-5(e)(2). 21 II. DISCUSSION 22 This sealing motion concerns portions of Plaintiffs’ opposition to Defendants’ motion to 23 dismiss and exhibits filed in support of their briefing. The Court finds that those documents are 24 more than tangentially related to the merits of the case, and therefore that the compelling reasons 25 standard applies. 26 The Court finds that Plaintiff has demonstrated good cause for sealing the portions of the 27 opposition to the motion to dismiss and associated exhibits as set forth below. 1 ECF Document to be Result Reasoning 2 No. Sealed Plaintiffs’ GRANTED as to This document contains descriptions of 3 407-4 Opposition to portions of the an FBI technique designated law 4 Defendants’ Motion document enforcement sensitive. Decl. of Gabriel to Dismiss highlighted at: K. Poling (“Poling Decl.”) ¶ 12, ECF 5 1:17-19 412-1. If disclosed, this information 7:7 would provide terrorists, their associates, 6 10:22-23, 24-25, 27 and other criminals with a roadmap of a 13:14-16 procedure by which law enforcement [7] 17:5 evaluates, analyzes, and shares 8 18:12, 25-26, 27-28 information concerning terrorists and 19:1, 7, 14, 27-28 criminals. Id. Disclosure could cause 9 serious harm because individuals may alter their behavior to avoid detection, 10 which would compromise ongoing and future national security investigations. [11] Id. Moreover, this document contains 12 information that would reduce the efficacy of screening processes, 13 methods, and techniques by enabling refugee applicants to adjust their 14 behavior or take precautions to avoid discovery or evidence justifying denial [15] of their applications. Declaration of 16 Joanna Ruppel (“Ruppel Decl.”) ¶ 4, ECF 412-2. Refugee applicants seeking 17 to conceal criminal conduct, national security concerns, or other ineligibility, [18] and/or individuals who seek to do harm 19 to the nation or engage in criminal activities within the United States, may 20 seek to circumvent known processes to avoid detection. Id. ¶ 6. Public release of 21 sensitive details regarding screening procedures and results could enable [22] nefarious actors to more easily exploit 23 the refugee program. Id. Public knowledge of screening processes, 24 methods and techniques will inherently limit the ability of USCIS and its U.S. 25 government partners to identify refugee applicants who pose a national security [26] or law enforcement risk, or are otherwise 27 ineligible. Id. 407-6 Meyer Decl., Ex. 3 DENIED as to all The Court denies this request because portions: seek to seal any portion of the document. [1] Decl. of Sergio Sarkany (“Sarkany 2 Decl.”) 2, ECF 412 407-8 Meyer Decl., Ex. 4 GRANTED as to The Court grants this request for the 3 portions of the same reasons articulated regarding document Plaintiffs’ Opposition to Defendants’ 4 highlighted at: Motion to Dismiss. 136:1-21 [5] 407-8 Meyer Decl., Ex. 4 DENIED as to The Court denies this request because 6 portions of the Defendants, the designating party, do not document seek to seal this portion of the document. 7 highlighted at: Sarkany Decl. 2. 133:1-4 [8] 407- Meyer Decl., Ex. 5 DENIED as to The Court denies this request because 10 portions of the Defendants, the designating party, do not [9] document seek to seal this portion of the document. 10 highlighted at: Sarkany Decl. 2. DEF11 00005921.0001: Penultimate sentence [12] of the first 13 paragraph; These portions of the 14 last sentence of the first paragraph: 15 “However…where applicants” and [16] “provided by the 17 applicant. 18 407- Meyer Decl., Ex. 5 GRANTED as to The Court grants this request for the 10 portions of the same reasons articulated regarding 19 document Plaintiffs’ Opposition to Defendants’ highlighted at: Motion to Dismiss. [20] DEF21 00005921.0001: Portions of the last 22 sentence of the first paragraph not 23 specifically mentioned above; [24] DEF25 00005921.0002: all highlighted 26 portions 407- GRANTED in its The Court grants this request for the 27 Meyer Decl., Ex. 6 11 entirety same reasons articulated regarding Motion to Dismiss. [1] 407- GRANTED as to The Court grants this request for the Meyer Decl., Ex. 7 2 13 portions of the same reasons articulated regarding document Plaintiffs’ Opposition to Defendants’ 3 highlighted at: Motion to Dismiss. DEF-00021467; 4 DEF-00021468; DEF-00021469 [5] except for the words 6 “15 months; DEF-00021470; 7 DEF-00021472 407- DENIED as to The Court denies this request because 8 13 Meyer Decl., Ex. 7 portions of the Defendants, the designating party, do not document seek to seal this portion of the document. [9] highlighted at: Sarkany Decl. 2. 10 DEF-00021469: “15 months” [11] 407- GRANTED as to The Court grants this request for the 12 Meyer Decl., Ex. 8 15 portions of the same reasons articulated regarding 13 document Plaintiffs’ Opposition to Defendants’ highlighted at: Motion to Dismiss. 14 DEF-00021461; DEF-00021462; 15 DEF-00021463, except for “after 15 [16] months;” 17 DEF-00021464 DEF-00021465 18 407- DENIED as to The Court denies this request because Meyer Decl., Ex. 8 15 portions of the Defendants, the designating party, do not 19 document seek to seal this portion of the document. highlighted at: Sarkany Decl. 2. [20] DEF-00021463: 21 “after 15 months” 407- Meyer Decl., Ex. GRANTED as to The Court grants this request for the 22 17 10 portions of the same reasons articulated regarding document Plaintiffs’ Opposition to Defendants’ 23 highlighted at: Motion to Dismiss. DEF-00016914.0034 [24] DEF-00016914.0035 25 DEF-00016914.0036 DEF-00016914.0037 26 DEF-00016914.0038 [27] 1 For the reasons set forth herein, the Court GRANTS IN PART and DENIES IN PART 2 || Plaintiffs’ administrative motion to file under seal portions of their opposition to Defendants’ 3 motion to dismiss. 4 This Order disposes of ECF 407. [5] 6 IT ISSO ORDERED 7 Dated: September 21, 2020 kom Lh han tn) M. BETH LABSON FREEMAN 9 United States District Judge [11] a 12 2B [16] («17 Z 18