1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE ORLANDO CANCINO Case No. 17-cv-00491-BAS-AHG CASTELLAR, et al., 12 ORDER GRANTING DEFENDANT- Plaintiffs, 13 RESPONDENTS’ RENEWED v. APPLICATION TO SEAL 14 (ECF No. 171) ALEJANDRO MAYORKAS, et al., 15 Defendant-Respondents. 16 17 18 I. BACKGROUND 19 On July 26, 2021, the Court denied without prejudice the parties’ applications to 20 seal, finding that the parties have not met the burden to demonstrate compelling reasons 21 that outweigh the public’s right to access judicial records. (ECF No. 159.) Defendant- 22 Respondents renew their application to seal ten documents that contain personally 23 identifiable information, law enforcement sensitive material, and material subject to law 24 enforcement privilege. Defendant-Respondents’ sealing application is accompanied by 25 26 27 28 1 declarations from a Customs and Border Protection (CBP) Official (Koseor Decl., ECF 2 No. 171-1) and a Supervisory Border Patrol Agent2 (Holmes Decl., ECF No. 171-2). 3 4 II. LEGAL STANDARD 5 “[T]he courts of this country recognize a general right to inspect and copy public 6 records and documents, including judicial records and documents.” Nixon v. Warner 7 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 8 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 9 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 10 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 11 of access is ‘based on the need for federal courts, although independent—indeed, 12 particularly because they are independent—to have a measure of accountability and for the 13 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 14 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 15 1044, 1048 (2d Cir. 1995)). 16 A party seeking to seal a judicial record bears the burden of overcoming the strong 17 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 18 depends upon whether the documents to be sealed relate to a motion that is “more than 19 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When 20 the underlying motion is more than tangentially related to the merits, the “compelling 21 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 22 the tangential relevance threshold, the lesser, “good cause” standard applies. Id.; see Pintos 23 v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (holding that the “good cause” 24 standard imposes a lower burden than the “compelling reasons” standard). Under either 25
26 1 Koseor’s official title is Deputy Division Director, Mission Readiness Division, for the San Diego Field Office (SDFO), Office of Field Operations (OFO), U.S Customs and Border Protection (CBP). 27 (Koseor Decl. ¶ 1.) 2 Holmes’s official title is Supervisory Border Patrol Agent for the U.S. Border Patrol (USBP), 28 1 standard, “an order sealing the documents must be narrowly drawn to seal only those 2 portions of the record that, upon a balancing of the relevant interests, ought to be sealed.” 3 Acad. of Motion Picture Arts & Scis. v. GoDaddy.com, Inc., No. CV 10-03738-AB (CWX), 4 2015 WL 12698301, at *1 (C.D. Cal. Jan. 22, 2015) (collecting cases). 5 Under this Court’s Standing Order, the parties seeking a sealing order must provide 6 the Court with “(1) a specific description of particular documents or categories of 7 documents they need to protect; and (2) declarations showing a compelling reason or good 8 cause to protect those documents from disclosure.” Hon. Cynthia Bashant’s Standing 9 Order for Civil Cases (“Standing Order”) § 5. “The standard for filing documents under 10 seal will be strictly applied.” Id. “Any protective order must be narrowly drawn” to reflect 11 the balance between the moving party’s interests and the public’s right to access the court 12 files, and “[a]ny member of the public may challenge the sealing of any particular 13 document.” Id. “The fact that both side[s] agree to seal or that a protective order was 14 issued at the onset of the case alone is insufficient cause for sealing.” Id. 15 16 III. ANALYSIS 17 Plaintiffs’ Class Certification Motion is more than tangentially related to the merits 18 of the underlying action. See Baker v. SeaWorld Entm’t, Inc., No. 14CV2129-MMA 19 (AGS), 2017 WL 5029612, at *3 (S.D. Cal. Nov. 3, 2017) (finding motion for class 20 certification to be more than tangentially related to merits of the case and citing cases). 21 Therefore, the instant Application to Seal is subject to the “compelling reasons” standard. 22 The Court discusses the exhibits by category below. 23 24 A. CBP Forms, Training, and Database 25 Defendant-Respondents seek to seal two documents in its entirety: CBP OFO 26 Training Guide (“Training Guide”) and the CBP Migrant Protection Protocols (MPP) 27 Appendix A (“MPP Appendix”). The Training Guide is an internal CBP document that 28 explains the steps that a CBP officer must take to prepare for administrative proceedings 1 relating to the issuance of immigration documents. (Koseor Decl. ¶ 6.) The MPP 2 Appendix similarly contains instructions for the CBP Officers on how to use an electronic 3 database for immigration cases used and maintained by immigration and law enforcement 4 agencies. (Id.) Specifically, the document includes screenshots of the database. (Id.) 5 According to Defendant-Respondents, the Training Guide and the MPP Appendix 6 are not for public view and even within the CBP, an employee must demonstrate a law 7 enforcement purpose to access the documents. (Koseor Decl. ¶ 6, ECF No. 171-1.) 8 Defendant-Respondents argue that disclosing those documents would be to reveal “record 9 keeping, intelligence gathering, and the information CBP relies on to make legal case 10 processing decisions,” which would hamper the CBP’s ability to “conduct proactive 11 enforcement operations based on the information [the CBP collected].” (Koseor Decl. ¶ 6, 12 ECF No. 171-1.) 13 To determine whether to maintain this information under seal, the Court must 14 balance the government’s interest with the public’s right to access court records. The Court 15 finds that Defendant-Respondents have demonstrated a compelling interest to maintain the 16 Training Guide and the MPP Appendix under seal. See Al Otro Lado, Inc. v. Wolf, No. 17 3:17-CV-2366-BAS-KSC, 2020 WL 3487823, at *8 (S.D. Cal. June 26, 2020) (holding 18 that “confidential and sensitive law-enforcement information that could harm CBP’s and 19 other entities’ operations if publicly disclosed” can be maintained under seal). 20 21 B. Deposition Excerpts Containing Law Enforcement Sensitive Material 22 Defendant-Respondents seek to maintain under seal portions of the following 23 deposition excerpts that discuss law enforcement sensitive material: CBP Office of Field 24 Operations 30(b)(6) Deposition Excerpts;3 and Border Patrol 30(b)(6) Deposition 25 Excerpts.4 26 27 3 The redacted versions are docketed at ECF Nos. 125-9, 171-4. 28 1 1. CBP OFO 30(b)(6) Deposition Excerpts 2 Defendant-Respondents seek to redact three parts from the excerpts of the deposition 3 of a 30(b)(6) witness for the CBP OFO: 110:10–23, 150:1–22, and 155:9–156:22.
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSE ORLANDO CANCINO Case No. 17-cv-00491-BAS-AHG CASTELLAR, et al., 12 ORDER GRANTING DEFENDANT- Plaintiffs, 13 RESPONDENTS’ RENEWED v. APPLICATION TO SEAL 14 (ECF No. 171) ALEJANDRO MAYORKAS, et al., 15 Defendant-Respondents. 16 17 18 I. BACKGROUND 19 On July 26, 2021, the Court denied without prejudice the parties’ applications to 20 seal, finding that the parties have not met the burden to demonstrate compelling reasons 21 that outweigh the public’s right to access judicial records. (ECF No. 159.) Defendant- 22 Respondents renew their application to seal ten documents that contain personally 23 identifiable information, law enforcement sensitive material, and material subject to law 24 enforcement privilege. Defendant-Respondents’ sealing application is accompanied by 25 26 27 28 1 declarations from a Customs and Border Protection (CBP) Official (Koseor Decl., ECF 2 No. 171-1) and a Supervisory Border Patrol Agent2 (Holmes Decl., ECF No. 171-2). 3 4 II. LEGAL STANDARD 5 “[T]he courts of this country recognize a general right to inspect and copy public 6 records and documents, including judicial records and documents.” Nixon v. Warner 7 Commc’ns, Inc., 435 U.S. 589, 597 (1978). “Unless a particular court record is one 8 ‘traditionally kept secret,’ a ‘strong presumption in favor of access’ is the starting point.” 9 Kamakana v. City & Cnty. of Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006) (citing Foltz 10 v. State Farm Mut. Auto Ins. Co., 331 F.3d 1122, 1135 (9th Cir. 2003)). “The presumption 11 of access is ‘based on the need for federal courts, although independent—indeed, 12 particularly because they are independent—to have a measure of accountability and for the 13 public to have confidence in the administration of justice.’” Ctr. for Auto Safety v. Chrysler 14 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (quoting United States v. Amodeo, 71 F.3d 15 1044, 1048 (2d Cir. 1995)). 16 A party seeking to seal a judicial record bears the burden of overcoming the strong 17 presumption of access. Foltz, 331 F.3d at 1135. The showing required to meet this burden 18 depends upon whether the documents to be sealed relate to a motion that is “more than 19 tangentially related to the merits of the case.” Ctr. for Auto Safety, 809 F.3d at 1102. When 20 the underlying motion is more than tangentially related to the merits, the “compelling 21 reasons” standard applies. Id. at 1096–98. When the underlying motion does not surpass 22 the tangential relevance threshold, the lesser, “good cause” standard applies. Id.; see Pintos 23 v. Pac. Creditors Ass’n, 605 F.3d 665, 678 (9th Cir. 2010) (holding that the “good cause” 24 standard imposes a lower burden than the “compelling reasons” standard). Under either 25
26 1 Koseor’s official title is Deputy Division Director, Mission Readiness Division, for the San Diego Field Office (SDFO), Office of Field Operations (OFO), U.S Customs and Border Protection (CBP). 27 (Koseor Decl. ¶ 1.) 2 Holmes’s official title is Supervisory Border Patrol Agent for the U.S. Border Patrol (USBP), 28 1 standard, “an order sealing the documents must be narrowly drawn to seal only those 2 portions of the record that, upon a balancing of the relevant interests, ought to be sealed.” 3 Acad. of Motion Picture Arts & Scis. v. GoDaddy.com, Inc., No. CV 10-03738-AB (CWX), 4 2015 WL 12698301, at *1 (C.D. Cal. Jan. 22, 2015) (collecting cases). 5 Under this Court’s Standing Order, the parties seeking a sealing order must provide 6 the Court with “(1) a specific description of particular documents or categories of 7 documents they need to protect; and (2) declarations showing a compelling reason or good 8 cause to protect those documents from disclosure.” Hon. Cynthia Bashant’s Standing 9 Order for Civil Cases (“Standing Order”) § 5. “The standard for filing documents under 10 seal will be strictly applied.” Id. “Any protective order must be narrowly drawn” to reflect 11 the balance between the moving party’s interests and the public’s right to access the court 12 files, and “[a]ny member of the public may challenge the sealing of any particular 13 document.” Id. “The fact that both side[s] agree to seal or that a protective order was 14 issued at the onset of the case alone is insufficient cause for sealing.” Id. 15 16 III. ANALYSIS 17 Plaintiffs’ Class Certification Motion is more than tangentially related to the merits 18 of the underlying action. See Baker v. SeaWorld Entm’t, Inc., No. 14CV2129-MMA 19 (AGS), 2017 WL 5029612, at *3 (S.D. Cal. Nov. 3, 2017) (finding motion for class 20 certification to be more than tangentially related to merits of the case and citing cases). 21 Therefore, the instant Application to Seal is subject to the “compelling reasons” standard. 22 The Court discusses the exhibits by category below. 23 24 A. CBP Forms, Training, and Database 25 Defendant-Respondents seek to seal two documents in its entirety: CBP OFO 26 Training Guide (“Training Guide”) and the CBP Migrant Protection Protocols (MPP) 27 Appendix A (“MPP Appendix”). The Training Guide is an internal CBP document that 28 explains the steps that a CBP officer must take to prepare for administrative proceedings 1 relating to the issuance of immigration documents. (Koseor Decl. ¶ 6.) The MPP 2 Appendix similarly contains instructions for the CBP Officers on how to use an electronic 3 database for immigration cases used and maintained by immigration and law enforcement 4 agencies. (Id.) Specifically, the document includes screenshots of the database. (Id.) 5 According to Defendant-Respondents, the Training Guide and the MPP Appendix 6 are not for public view and even within the CBP, an employee must demonstrate a law 7 enforcement purpose to access the documents. (Koseor Decl. ¶ 6, ECF No. 171-1.) 8 Defendant-Respondents argue that disclosing those documents would be to reveal “record 9 keeping, intelligence gathering, and the information CBP relies on to make legal case 10 processing decisions,” which would hamper the CBP’s ability to “conduct proactive 11 enforcement operations based on the information [the CBP collected].” (Koseor Decl. ¶ 6, 12 ECF No. 171-1.) 13 To determine whether to maintain this information under seal, the Court must 14 balance the government’s interest with the public’s right to access court records. The Court 15 finds that Defendant-Respondents have demonstrated a compelling interest to maintain the 16 Training Guide and the MPP Appendix under seal. See Al Otro Lado, Inc. v. Wolf, No. 17 3:17-CV-2366-BAS-KSC, 2020 WL 3487823, at *8 (S.D. Cal. June 26, 2020) (holding 18 that “confidential and sensitive law-enforcement information that could harm CBP’s and 19 other entities’ operations if publicly disclosed” can be maintained under seal). 20 21 B. Deposition Excerpts Containing Law Enforcement Sensitive Material 22 Defendant-Respondents seek to maintain under seal portions of the following 23 deposition excerpts that discuss law enforcement sensitive material: CBP Office of Field 24 Operations 30(b)(6) Deposition Excerpts;3 and Border Patrol 30(b)(6) Deposition 25 Excerpts.4 26 27 3 The redacted versions are docketed at ECF Nos. 125-9, 171-4. 28 1 1. CBP OFO 30(b)(6) Deposition Excerpts 2 Defendant-Respondents seek to redact three parts from the excerpts of the deposition 3 of a 30(b)(6) witness for the CBP OFO: 110:10–23, 150:1–22, and 155:9–156:22. 4 The first part (111:10–112:3) addresses the OFO officers’ approach in processing 5 cases and issuing a Notice to Appear (NTA). (Koseor Decl. ¶ 3.) According to Defendant- 6 Respondents, the discussion regarding case processing “reveals information that CBP uses 7 to make case determinations, such as the likelihood of issuing an [NTA] for people with 8 medical issues.” (Id.) An OFO official states in a declaration that disclosure of this 9 information “may create an incentive for detainees to claim medical issues in the hope of 10 receiving a certain disposition,” thereby “impairing CBP’s discretion, in administrative 11 cases, to process each case on a case-by-case basis, therefore delaying administrative 12 processing for future cases.” (Id.) 13 The second part (150:1–22) discusses an internal report referred to as Barracks 5 14 Report, which is used by the OFO to track the detainees, as well as CBP’s operation hours 15 and functions. (Koseor Decl. ¶ 4.) The OFO official’s declaration states that disclosure of 16 such information creates a risk of abuse by “those who seek to circumvent CBP’s 17 enforcement [who] often use operation and tracking information for illegal or unlawful 18 acts.” (Id. ¶ 4.) 19 The third part (155:9–156:22) discusses the CBP’s 2018 operation plan instituted in 20 response to the caravans arriving at the southern border. (Koseor Decl. ¶ 5.) In Defendant- 21 Respondents’ view, “[t]he disclosure of operation plans could weaken CBP’s response to 22 future threats, emergencies, and dangerous events at the Ports of Entry. CBP’s tactics and 23 tolerances in response to future caravans or similar threats would be directly impacted.” 24 (Id.) 25 After balancing the government’s interest against the public’s right to access the 26 court files, the Court finds that Defendant-Respondents have demonstrated a compelling 27 interest to maintain under seal the redacted portions of the excerpts of the deposition of 28 CBP OFO’s 30(b)(6) witness. 1 2 2. Border Patrol 30(b)(6) Deposition Excerpts 3 Defendant-Respondents seek to redact two parts from the excerpts of the deposition 4 of a 30(b)(6) witness for the U.S. Border Patrol: 127:1–12 and 129:1–16. 5 The first part (127:1–12) discusses the Border Patrol’s policy to process certain 6 individuals considering the available spaces in the detention facilities. (See Holmes Decl. 7 ¶ 5.) According to the declaration by the testifying Border Patrol agent, the policy 8 addresses how agents decide to release certain individuals, which constitutes information 9 that can be abused against the government’s interest. (Id.) 10 The second part (129:1–16) explains instances when the Border Patrol would 11 complete an NTA with release on own recognizance. (See Holmes Decl. ¶ 6.) In 12 Defendant-Respondents’ view, revealing the information “may create an incentive for 13 detainees to claim medical issues in the hope of receiving a certain disposition.” (Id.) The 14 Border Patrol agent states in his declaration that the disclosure “may impact future case 15 processing and impair CBP’s discretion, in administrative cases, to process each case on a 16 case-by-case basis, therefore delaying administrative processing for future cases.” (Id.) 17 To determine whether to maintain this information under seal, the Court must 18 balance the government’s interest in guarding its confidential information against the 19 public’s right to access the court files. The Court finds that Defendant-Respondents have 20 demonstrated a compelling interest to maintain under seal the redacted portions of the 21 excerpts of the deposition of CBP OFO’s 30(b)(6) witness. 22 23 C. Plaintiffs’ Personal Identifying Information 24 Defendant-Respondents seek to redact the personal identifying information of 25 Plaintiffs, including date of birth, alien number, and address. That information is contained 26 in the ICE 30(b)(6) Deposition Excerpts,5 ICE Fact Witness Deposition Excerpts,6 Cancino 27 5 The redacted versions are docketed at ECF Nos. 125-8, 171-3. 28 1 Castellar’s I-213 form, and Hernandez Aguas’s Notice to Appear. The Court must 2 balance Plaintiffs’ privacy interest against the public’s right to access court records. Courts 3 have held that risks associated with disclosing sensitive personal information may 4 outweigh the public’s interest in accessing records containing such information. See, e.g., 5 Lombardi v. TriWest Healthcare All. Corp., No. CV-08-02381-PHX-FJM, 2009 WL 6 1212170, at *1 (D. Ariz. May 4, 2009) (granting motion to seal documents containing 7 sensitive personal information); Am. Automobile Ass’n of N. Cal., Nev., & Utah, No. 17- 8 CV-03874-LHK, 2019 WL 1206748, at *2 (N.D. Cal. Mar. 14, 2019) (finding compelling 9 reasons to seal personally identifiable information, “including names, addresses, phone 10 numbers, and email addresses”). In such cases, redacting the personal identifying 11 information at issue may sufficiently protect the privacy interests and also preserve public 12 access to the case record. See Hedrick v. Grant, No. 2:76-CV-0162-GEB-EFB P, 2017 13 WL 550044, at *2 (E.D. Cal. Feb. 10, 2017); see also In re Midland Nat. Life Ins. Co. 14 Annuity Sales Practices Litig., 686 F.3d 1115, 1120 (9th Cir. 2012) (instructing district 15 court to redact “sensitive personal” information even where records are unsealed). 16 After balancing the privacy rights of Plaintiffs against the public’s right to access 17 the court files, the Court finds that Defendant-Respondents have demonstrated a 18 compelling interest to maintain under seal the unredacted copies of the documents 19 containing personal identifying information. 20 21 D. Names of Law Enforcement Officers 22 Defendant-Respondents seek to redact from three documents9 the names of the 23 government employees, their non-public email addresses, and phone numbers. The Court 24 must balance the public’s right to access court records against the government’s interest in 25 26 7 The redacted versions are docketed at ECF Nos. 125-19, 171-9. 27 8 The redacted versions are docketed at ECF Nos. 125-14, 171-7. 9 The redacted versions are docketed at ECF Nos. 125-8, 171-3 (ICE 30(b)(6) deposition excerpts); 28 1 preventing disclosure of its employees’ personal information. See Ortiz v. City & Cty. of 2 San Francisco, No. 18-CV-07727-HSG, 2020 WL 2793615, at *8 (N.D. Cal. May 29, 3 2020) (applying the balancing test to determine whether to maintain under seal “the names 4 and information regarding non-defendant deputies and staff”). 5 Defendant-Respondents attach a declaration reciting the harassment a United States 6 Citizenship and Immigration Services (USCIS) employee endured after her email address 7 was made public, as well as the flood of emails a Border Patrol agent received after his 8 email address was posted on a public forum. (Holmes Decl. ¶ 7.) According to Defendant- 9 Respondents, disclosure of the employees’ full names and email addresses may lead to 10 disclosure of more personal information through “doxxing,” which imposes “a direct safety 11 concern for Agents and their family members.” (Id.) 12 The Court finds that Defendant-Respondents have demonstrated the specific 13 prejudice or harm that may result from disclosing the officials’ information. Courts have 14 held that targeted redactions similar to those proposed here strike the right balance between 15 the privacy rights of the officers and the public’s right to access the court records. See, 16 e.g., Al Otro Lado, Inc. v. Wolf, No. 17-CV-02366-BAS-KSC, 2020 WL 4551687, at *12 17 (S.D. Cal. Aug. 6, 2020) (granting motion to seal document redacting CBP employees’ 18 phone numbers and email addresses). The Court reaches the same conclusion here and 19 finds that the proposed redactions are sufficient to preserve the public’s right to access the 20 relevant information. 21 22 E. Other Law Enforcement Privilege 23 Defendant-Respondents seek to file under seal Plaintiff Hernandez-Aguas’s 24 fingerprint identification number on her NTA, as well as Cancino Castellar’s fingerprints, 25 fingerprint identification number, and state inmate number. Defendant-Respondents do 26 not explain why this information should be maintained under seal and simply claim that 27 28 1 ||they are subject to the law enforcement privilege.!° Nonetheless, the Court finds that the 2 ||redacted information contains sensitive law-enforcement information, and the proposed 3 redactions preserve the public’s right to access the relevant information contained in the 4 ||documents. Therefore, the Court grants Defendant-Respondents’ request to maintain the 5 ||redacted information under seal. 6 7 CONCLUSION 8 For the foregoing reasons, the Court GRANTS Defendant-Respondents’ sealing 9 application. (ECF No. 171.) The Court ORDERS the Clerk of the Court to accept and 10 || FILE UNDER SEAL the requested documents (ECF No. 172). 11 IT IS SO ORDERED. 12 □ 13 || DATED: August 19, 2021 (yicldn A (Lyphaa. 6 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 0 Defendant-Respondents argue the Court’s prior Order (ECF No. 159) pertained only to confidential material but not to privileged material. (App. to Seal at 20:1-7, ECF No. 171.) Defendant- 27 Respondents misconstrue the Court’s Order. Whether or not the information sought to be sealed is 28 confidential or privileged, the burden is on Defendant-Respondents to demonstrate compelling reasons to maintain the information under seal. _Q.