United States District Court, D. Connecticut
ORDER DENYING MOTION TO SEAL AND REQUIRING THE FILING
OF A PROPER MOTION TO SEAL AND ACCOMPANYING SENTENCING
JEFFREY ALKER MEYER UNITED STATES DISTRICT JUDGE.
Penny Roy has filed a motion to seal her sentencing
memorandum (Doc. #50) and has separately filed a sentencing
memorandum and related attachments under seal (Doc. #51). The
motion to seal states in its entirety that “[t]he
defendant through his [sic] undersigned counsel respectfully
moves the Court for an Order sealing the Defendant's
Memorandum Re: Sentencing filed on June 12, 2017, and any
order entered thereon.” Doc. #50.
public has a presumptive right of access to judicial
documents under both the First Amendment and the common law.
See, e.g., Lugosch v. Pyramid Co., 435 F.3d
110, 119-20 (2d Cir. 2006). Sentencing memoranda in criminal
cases qualify as “judicial documents” to which
the presumptive right of public access attaches. See
United States v. Litvak, 2015 WL 328876, at *2 (D. Conn.
2015); United States v. Huntley, 943 F.Supp.2d 383,
385-86 (E.D.N.Y. 2013); cf. United States v.
Alcantara, 396 F.3d 189, 197-99 (2d Cir. 2005)
(discussing First Amendment right of access to sentencing
proceedings). As Judge Weinstein has observed:
“Particularly important is transparency in our judicial
branch. Its power depends upon the people's confidence.
That confidence is founded on the fact that the material
judges rely on for decision is available to the
public-decisions by which judges' work is judged.”
Huntley, 943 F.Supp.2d at 385.
the First Amendment, a judicial document may be sealed only
if a court finds that sealing is “essential to preserve
higher values and is narrowly tailored to serve that
interest.” Bernstein v. Bernstein Litowitz Berger
& Grossmann LLP, 814 F.3d 132, 144 (2d Cir. 2016).
Similarly, under the common law, a judicial document may be
sealed “only if the court concludes that the
presumption of public access-whose weight depends upon the
nature of the document-is outweighed by ‘competing
considerations' such as, e.g., privacy
interests, public safety, or attorney-client privileged
information.” Litvak, 2015 WL 328876, at *2
(quoting Lugosch, 435 F.3d at 120).
criminal defendant has “submitted the relevant
information for the purposes of the court's consideration
in determining what sentence would be appropriate, ”
and where “the information was important to the
court's ultimate sentencing decision, ” the
presumption of public access may be especially weighty.
Id. at *3. In all cases, a court must “make
specific, rigorous findings before sealing [a] document or
otherwise denying public access.” Bernstein,
814 F.3d at 141. See also Lugosch, 435 F.3d at 124
(because of the presumption of public access to judicial
documents, sealing orders to protect competing interests such
as privacy must be “narrowly tailored” to achieve
the motion to seal does not state any reasons that would
justify sealing of defendant's entire sentencing
memorandum. If the Court were to grant defendant's motion
in the absence of any stated reasons to support sealing, it
would be an obvious violation of the First Amendment and
common law rights of public access to court documents.
light of the public's right of access to judicial
documents, this Court has long had a local rule that
prescribes the appropriate procedure for counsel in criminal
cases to follow if they wish to file a document under seal.
Local Criminal Rule 57 provides in relevant part that
“[n]o judicial document shall be filed under seal,
except upon entry of an order of the Court either acting
sua sponte or specifically granting a request to
seal that document, ” and “[a]ny such order
sealing a judicial document shall include particularized
findings demonstrating that sealing is supported by clear
and compelling reasons and is narrowly tailored
to serve those reasons.” D. Conn. L. Crim. R. 57(b)(3)
(emphasis added). Because of the basic requirements that
sealing be supported not only by clear and compelling reasons
but also that any sealing be narrowly tailored to serve those
compelling reasons, the local rules further prescribe
procedures for counsel to file a redacted public version and
an unredacted sealed version of documents to be filed under
seal. See D. Conn. L. Crim. R. 57(b)(4).
either the prosecution or defense counsel file a sentencing
memorandum, they should consider at the outset whether it is
necessary to seek sealing of the entire memorandum. For
example, if the entire memorandum discusses nothing other
than the scope and extent of a defendant's confidential
cooperation efforts, then there may be good reason to seek to
file the entire memorandum under seal. See, e.g.,
United States v. Armstrong, 185 F.Supp.3d 332
(E.D.N.Y 2016) (denying motion to unseal any portions of
letters describing a defendant's cooperation). If so,
counsel should file a motion to seal that explains why
sealing of the entire memorandum is supported by clear and
compelling reasons and why sealing of the entire memorandum
is indeed narrowly tailored to serve those reasons.
likely, however, sealing may be warranted only for limited
parts of a sentencing memorandum. That is plainly the case
here. Defendant's sentencing memorandum describes her
childhood, her drinking and gambling problems, her success as
a participant in the Support Court, how the victim company
has allegedly “absorbed” the loss from
defendant's embezzlements, and how the fraud guidelines
of the Sentencing Guidelines may be too severe. No plausible
claim could be made that any of these facts and arguments in
the sentencing memorandum should be placed under seal.
See, e.g., Martin v. Astrue, 2010 WL
1644514, at *2 (D. Conn. 2010) (“Plaintiff has redacted
every reference in his Memorandum to his medical history
concerning his back problems, his age, his education, and his
work history, yet he has made no showing as to why this
information is so highly sensitive that it should be
other hand, defendant's sentencing memorandum quotes from
certain psychiatric evaluation reports and also attaches
these reports as exhibits. The contents of these psychiatric
evaluations would properly be subject to sealing. See,
e.g., Doe v. Oberweis Dairy, 456 F.3d 704, 718
(7th Cir. 2006).
legitimate claim cannot be made to seal an entire sentencing
memorandum, then counsel who appear before me should consider
at least two options for how to proceed. First, counsel may
choose instead to file two sentencing memoranda: one
memorandum may be filed entirely on the public record that
limits its discussion to those matters that are not properly
subject to sealing, and then a second supplemental memorandum
may be simultaneously filed that discusses only those matters
that are actually properly subject to sealing (accompanied of
course by an appropriate motion to seal and related filings
pursuant to Local Rule 57). Alternatively, counsel may file a
single sentencing memorandum with targeted, black-out
redactions of the specific portions of the memorandum and of
any attachments that disclose properly sealable matters
(again, accompanied by an appropriate motion to seal and
related filings pursuant to Local Rule 57).
counsel here did not pursue either of these two options or
make any effort to allow for the public's right of access
to sentencing memoranda and to comply with Local Criminal
Rule 57. Accordingly, I will deny the motion to seal (Doc.
#50), and I will deem defendant's accompanying sentencing
memorandum to be withdrawn as improperly filed in the first
reasons set forth above, the motion to seal (Doc. #50) is
DENIED without prejudice to defendant's filing of a
proper motion to seal and related documents in compliance
with D. Conn. L. Crim. R. 57. On or before June 19, 2017,
defendant shall file a substitute redacted sentencing
memorandum or dual sentencing memoranda as I have described
above. Any accompanying motion to seal shall explicitly
describe the grounds that would warrant the Court's
sealing of any information, showing ...