Case 2:85-cv-04544-DMG-AGR Document 502 Filed 10/19/18 Page 1 of 9 Page ID #:25023 1 2 3 4 5 CARLOS R. HOLGUÍN (CAL. BAR NO. 90754) PETER A. SCHEY (CAL. BAR NO. 58232) Center for Human Rights & Constitutional Law 256 South Occidental Boulevard Los Angeles, CA 90057 Telephone: (213) 388-8693 Email: crholguin@centerforhumanrights.org pschey@centerforhumanrights.org 8 LEECIA WELCH (CAL. BAR NO. 208741) National Center for Youth Law 405 14th Street, 15th Floor Oakland, CA 94612 Telephone: (510) 835-8098 Email: lwelch@youthlaw.org 9 Listing continues on next page 6 7 10 Attorneys for Plaintiffs 11 12 13 14 15 16 17 18 19 20 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA - WESTERN DIVISION Jenny Lisette Flores, et al Plaintiff, v. Jefferson B. Sessions, Attorney General, et al Defendants. Case No. CV 85-4544-DMG (AGRx) APPLICATION FOR LEAVE TO FILE UNDER SEAL PORTIONS OF EXHIBITS SUBMITTED IN OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING SPECIAL MASTER/INDEPENDENT MONITOR District Judge Dolly M. Gee 21 22 23 24 25 26 27 28 APPLICATION FOR LEAVE TO FILE UNDER SEAL PORTIONS OF EXHIBITS SUBMITTED IN OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING SPECIAL MASTER/INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 502 Filed 10/19/18 Page 2 of 9 Page ID #:25024 1 Counsel for Plaintiffs, continued 2 HOLLY S. COOPER (CAL. BAR NO. 197626) Co-Director, Immigration Law Clinic CARTER C. WHITE (CAL. BAR NO. 164149) Director, Civil Rights Clinic University of California Davis School of Law One Shields Ave. TB 30 Davis, CA 95616 Telephone: (530) 754-4833 Email: hscooper@ucdavis.edu ccwhite@ucdavis.edu 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 APPLICATION FOR LEAVE TO FILE UNDER SEAL PORTIONS OF EXHIBITS SUBMITTED IN OPPOSITION TO MOTION TO MODIFY ORDER APPOINTING SPECIAL MASTER/INDEPENDENT MONITOR CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 502 Filed 10/19/18 Page 3 of 9 Page ID #:25025 1 APPLICATION FOR LEAVE TO FILE UNDER SEAL PORTIONS 2 OF EXHIBITS SUBMITTED IN OPPOSITION TO MOTION TO MODIFY 3 ORDER APPOINTING SPECIAL MASTER/INDEPENDENT MONITOR 4 Plaintiffs submit this unopposed Application seeking leave from the Court to 5 file under seal portions of Exhibits 9, 15-24, 27-39 (“Exhibits”) in Opposition to 6 Motion to Modify Order Appointing Special Master/Independent Monitor, pursuant 7 to Federal Rule of Civil Procedure 5.2(d) and Local Rule 79-5. See Holguín Decl. ¶ 8 2 (table specifying information Plaintiffs seek to seal for each Exhibit). As required 9 by Local Rule 79-5.2.2(a), Plaintiffs submit concurrently with this application the 10 declaration of Carlos Holguín, a proposed order, and redacted and unredacted 11 versions of the Exhibits. 12 13 14 The portions of the Exhibits that Plaintiffs seek to seal include:  the full names or initials of Class Members and/or their family members and sponsors, 15  their alien registration numbers or case numbers, 16  their health care information; and/or 17  their full birth dates. 18 19 See Holguín Decl. ¶ 2 (table specifying information Plaintiffs seek to seal for each Exhibit). 20 These Class Members are or recently were minors in the immigration 21 detention custody of the Office of Refugee Resettlement (ORR). These youth have 22 an interest in maintaining their privacy while in immigration custody and in their 23 private medical and mental health information. 24 25 LEGAL STANDARD Because the public generally has a “right to inspect and copy public records 26 and documents, including judicial records and documents,” there is “a strong 27 presumption in favor of access to court records.” Ctr. for Auto Safety v. Chrysler 28 Grp., LLC, 809 F.3d 1092, 1096 (9th Cir. 2016) (internal quotation marks and 1 CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 502 Filed 10/19/18 Page 4 of 9 Page ID #:25026 1 citations omitted). Accordingly, “a court may seal records only when it finds a 2 compelling reason and articulate[s] the factual basis for its ruling, without relying 3 on hypothesis or conjecture.” Id. at 1096-97. Under this standard, the “party 4 seeking to seal a judicial record then bears the burden of . . . articulat[ing] 5 compelling reasons supported by specific factual findings . . . that outweigh the 6 general history of access and the public policies favoring disclosure, such as the 7 public interest in understanding the judicial process.” Kamakana v. City & Cnty. of 8 Honolulu, 447 F.3d 1172, 1178-79 (9th Cir. 2006) (internal quotation marks and 9 citations omitted). The court must “conscientiously balance[] the competing 10 interests of the public and the party who seeks to keep certain judicial records 11 secret.” Id. at 1179 (internal quotation marks and citations omitted). 12 ARGUMENT 13 There are compelling reasons to seal the portions of the documents that 14 Plaintiffs seek to protect from public disclosure. These documents and the related 15 Opposition contain highly personal information regarding the individual Class 16 Members, and disclosure of this information would cause them significant harm. 17 I. Compelling reasons support the sealing of the identifying information of the 18 individual Class Members and their family members and sponsors. 19 Plaintiffs’ Opposition to the Motion to Modify Order Appointing Special 20 Master/Independent Monitor and the supporting Exhibits implicate several highly 21 private interests for the individual Class Members who are identified in those 22 documents, and thus protection of their identities and those of their family members 23 and sponsors is warranted. 24 First, the Opposition and Exhibits address a number of very sensitive and 25 personal matters, including the past abuse, trauma, and private mental and physical 26 health information and treatment of Class Members. Courts have recognized a 27 constitutionally protected interest in avoiding disclosure of such personal matters, 28 including medical information. Doe v. Beard, 63 F. Supp. 3d 1159, 1166 n.4 (C.D. 2 CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 502 Filed 10/19/18 Page 5 of 9 Page ID #:25027 1 Cal. 2014) (collecting cases); see also Globe Newspaper Co. v. Superior Court, 457 2 U.S. 596, 607 (1982) (finding that “safeguarding the physical and psychological 3 well-being of a minor” is a compelling interest); Eugene S. v. Horizon Blue Cross 4 Blue Shield of N.J., 663 F.3d 1124, 1136 (10th Cir. 2011) (granting Plaintiff- 5 Appellant’s motion to file volume of appendix under seal because “nearly every 6 document in the volume at issue includes the name of, and/or personal and private 7 medical information relating to, [Plaintiff-Appellant’s] minor son.”); Webster 8 Groves Sch. Dist. v. Pulitzer Pub. Co., 898 F.2d 1371, 1376-77 (8th Cir. 1990) 9 (affirming decision to seal court records containing “testimony of psychologists and 10 psychiatrists as to [child’s] mental status” to prevent child from being “stigmatized 11 and humiliated . . . “); Order granting Motion to File Declarations Under Seal at 1, 12 Doe v. Shenandoah Valley Juvenile Center Commission, No. 5:17-cv-0097 (W.D. 13 Va. Feb 26, 2018), ECF No. 43 (granting motion to file declarations of immigrant 14 youth under seal because Plaintiffs established that the “information contained in 15 such declarations, including details regarding the declarants’ mental health, past 16 abuse, and trauma, is of a highly sensitive and personal nature . . .”). Disclosing the 17 Class Members’ names and initials in conjunction with this information would 18 subject them to potential stigma and humiliation. See Vitek v. Jones, 445 U.S. 480, 19 492 (1980) (noting that compelled psychiatric treatment “can engender adverse 20 social consequences to the individual” that can “have a very significant impact on 21 the individual.”) (citation omitted). 22 Second, the Exhibits implicate the details of the Class Members’ immigration 23 detention and case numbers. Federal law and policy maintain personally identifying 24 information related to such matters as confidential, particularly for minors in the 25 custody of the Office of Refugee Resettlement. See, e.g., 8 C.F.R. § 236.6 26 (prohibiting release of “the name of, or other information relating, to” immigration 27 detainees); 8 C.F.R. § 208.6 (maintaining confidentiality of asylum applications and 28 related records). The U.S. Department of Health and Human Services maintains 3 CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 502 Filed 10/19/18 Page 6 of 9 Page ID #:25028 1 self-described “strong policies . . . to ensure the privacy and safety of 2 unaccompanied alien children by maintaining the confidentiality of their personal 3 information.” U.S. Dept. of Health & Human Services, Unaccompanied Alien 4 Children Released to Sponsors by State (June 30, 2017), 5 https://www.acf.hhs.gov/orr/resource/unaccompanied-alien-children-released-to- 6 sponsors-by-state (last accessed September 22, 2018). It explains, “These children 7 may have histories of abuse,” “may be seeking safety from threats of violence,” or 8 “may have been trafficked or smuggled.” Id. Accordingly, the agency has 9 recognized that it “cannot release information about individual children that could 10 11 compromise the child’s location or identity.” Id. Further, the Class Members’ identifying information should also be protected 12 because the sensitive subject matter at issue – including their private mental health 13 and trauma information and immigration detention – is based exclusively on their 14 experiences as minors. Federal courts recognize the importance of protecting 15 minors’ identities and personal information in court proceedings. Doe v. 16 Kamehameha Schs./Bernice Pauahi Bishop Estate, 625 F.3d 1182, 1187 (9th Cir. 17 2010) (Reinhardt, J., dissenting from denial of reh’g en banc) (“The interest of 18 minors in privacy is greater than the public’s interest in learning their names, even 19 when there is no particular threat to the juvenile’s physical safety or wellbeing.”). 20 Courts consider the age of a party to be a “significant factor in the matrix of 21 considerations arguing for anonymity” based on a recognition of the “special 22 vulnerability” of minors. Doe v. Stegall, 653 F.2d 180, 186 (5th Cir. 1981); see also 23 Sealed Plaintiff v. Sealed Defendant #1, 537 F.3d 185, 190 (2d Cir. 2008) (stating 24 that an important factor in the balancing inquiry is “whether the plaintiff is 25 particularly vulnerable to the possible harms of disclosure, particularly in light of 26 his age”) (internal citations omitted). 27 Finally, many of the Class Members address in their declarations negative 28 experiences that they have experienced in the care of the government contractors 4 CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 502 Filed 10/19/18 Page 7 of 9 Page ID #:25029 1 who are acting as their physical custodians. Many of them remain in the custody of 2 these contractors, and public disclosure of their names and initials could put them at 3 risk of retaliation. 4 Sealing of the Class Members’ initials as well as their full names is necessary 5 to protect their identities. Many of the individual Class Members currently are or 6 recently were detained in facilities that house relatively small numbers of youth. If 7 the Class Members’ initials were disclosed, knowledgeable members of the public – 8 including the government contractors in whose physical custody many of the Class 9 Members still reside – would be able to identify them. Thus, sealing the Class 10 Members’ initials as well as their full names is necessary to protect their highly 11 personal information as well as to protect them from the risk of negative reprisals 12 from their custodians or former custodians. 13 To protect the Class Members’ identities effectively, it is also necessary to 14 protect the names and identifying information, such as the telephone numbers and 15 home addresses, of their family members and potential sponsors. Identification of 16 those individuals could lead easily to the identification of the Class Members. 17 Further, some of the Exhibits implicate personal information of the Class Members’ 18 family members and potential sponsors, including their immigration status and 19 histories of trauma. 20 II. Sealing of full birthdates is also warranted. 21 A number of the Exhibits also include the full birthdates of the Class 22 Members and other individuals. Federal Rule of Civil Procedure 5.2(a) restricts 23 parties from public filing of birthdates, other than the year of birth. Accordingly, 24 Plaintiffs seek to seal the month and day of individuals’ birthdates. 25 III. Plaintiffs’ sealing request is narrowly tailored. 26 Plaintiffs seek only a limited sealing order that permits them to file 27 unredacted versions of the Exhibits under seal and redacted versions of the Exhibits 28 in the public record. Other relevant information important to Plaintiffs’ presentation 5 CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 502 Filed 10/19/18 Page 8 of 9 Page ID #:25030 1 of the issues, including the content of the Class Members’ statements and other 2 documents, would still be maintained in the public record, and the Court’s 3 resolution of these matters will be public as well. Plaintiffs do not seek to seal the 4 entirety of the Exhibits, but rather specific portions necessary to protect the highly 5 confidential and personal information of the individual Class Members. 6 Accordingly, filing portions of the Exhibits under seal is the least restrictive method 7 of ensuring Plaintiffs’ and their family members’ privacy while permitting the 8 public access to the maximum amount of information. 9 CONCLUSION 10 For the reasons set forth above, Plaintiffs respectfully request leave to file 11 under seal the complete, unredacted versions of the Exhibits and to file redacted 12 versions of the Exhibits in the public record. 13 14 15 Dated: October 19, 2018 Respectfully submitted, 16 CARLOS R. HOLGUÍN PETER A. SCHEY Center for Human Rights & Constitutional Law 17 18 LEECIA WELCH National Center for Youth Law 19 HOLLY COOPER CARTER WHITE University of California Davis School of Law 20 21 22 /s/ Carlos Holguín 23 /s/ Leecia Welch 24 25 /s/ Holly Cooper 26 27 28 6 CV 85-4544-DMG (AGRX) Case 2:85-cv-04544-DMG-AGR Document 502 Filed 10/19/18 Page 9 of 9 Page ID #:25031 1 2 CERTIFICATE OF SERVICE I hereby certify that on October 19, 2018, I caused a copy of Plaintiffs’ 3 Opposition to Motion to Modify Order Appointing Special Master/Independent 4 Monitor, the accompanying Declaration in Opposition to the Motion, and the 5 unredacted versions of the documents to be sealed to be served by email to the 6 following counsel listed below: 7 8 9 10 11 12 13 14 15 16 17 18 Carlton F. Sheffield, carlton.f.sheffield@usdoj.gov Christina Parascandola, christina.parascandola@usdoj.gov Colin A. Kisor, colin.kisor@usdoj.gov Sarah B. Fabian, sarah.b.fabian@usdoj.gov William C. Silvis, william.silvis@usdoj.gov Peter D. Keisler, peter.keisler@usdoj.gov Yamileth G. Davila, yamileth.g.davila@usdoj.gov Civil Litigation – Office of Immigration Litigation US Department of Justice PO Box 878 Ben Franklin Station Washington, DC 20044 Civil Division – Office of Immigration Litigation US Department of Justice PO Box 868 Ben Franklin Station Washington, DC 20044 19 20 Dated: October 19, 2018 ___________/s/____________ Carlos Holguín 21 22 23 24 25 26 27 28 1 CV 85-4544-DMG (AGRX)