"Courts have long recognized a common-law right of access to judicial records." Id. (citing Nixon v. Warner Commc'ns, Inc., 435 U.S. 589, 597 (1978)).
"The right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes." United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985); see also FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987) ("The appropriateness of making court files accessible is accentuated in cases where the government is a party: in such circumstances, the public's right to know what the executive branch is about coalesces with the concomitant right of the citizenry to appraise the judicial branch."). But this right of access is not absolute; it can be rebutted when other interests outweigh the public interests in access. Mann, 477 F.3d at 1149. "All courts have supervisory powers over their own records and files. Thus a court, in its discretion, may seal documents if the public's right of access is outweighed by competing interests." Hickey, 767 F.2d at 708 (citations and quotation marks omitted). "The party seeking to overcome the presumption [of access] bears the - burden of showing some significant interest that outweighs the presumption." Mann, 477 F.3d at 1149 (quotation marks omitted). Whether a trial court exercises sound discretion will be based on the facts and circumstances of the individual case and the weighing of the parties' interests. See Hickey, 767 F.2d at 708.
ANALYSIS I. Common-Law Right of Access Mr. Jordan argues that the district court abused its discretion in denying his common-law right of access to the sealed documents. He maintains the district court failed to give proper weight to his interests and the interests of the public, wrongly assuming that the public right of access is weak. Instead, he contends that the common-law right of access applies categorically to all judicial records and documents, regardless of whether the district court considered the documents in reaching a substantive ruling. Mr. Jordan also argues that the district court engaged in inappropriate fact finding, premised its decision on conclusory fears and speculative risks, improperly advocated the BOP's position, and failed to assign the burden of proof to the BOP. Further, he argues the court failed to apply the proper legal standards in its balancing analysis because the court failed to presume the public interest was paramount and did not apply the compelling reasons standard. We reject these arguments.
- "Whether judicial records . . . should be sealed . . . is a matter left to the sound discretion of the district court." Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). We will reverse a district court's order to seal documents only if "we have a definite and firm conviction that [the court] made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Id.
The district court granted Mr. Jordan's request that document #9, the motion for expedited ruling, be unsealed, but denied his request that #2 and #4, the complaint documents, be unsealed. Recognizing a common-law right of access to judicial records, the court found that the public interest in accessing the documents was fairly weak because the court had never actually considered them in making a substantive ruling as Mr. Riker's case was resolved without judicial intervention. With respect to the BOP's interest in keeping the information private, the court found that the sealed information was of a sensitive nature, that Mr. Riker confessed in a public document that he was an informant thereby - potentially exposing himself to a risk of physical harm, and that the basis for sealing, Mr. Riker's belief that he was in imminent danger, may continue even though he has been released from custody. Weighing the fairly weak public interest in unsealing the two documents against the interests of Mr. Riker and the BOP in keeping the documents sealed, the court concluded that there was compelling cause to continue to seal the documents. Mr. Jordan appealed.
Nearly two years later, Mr. Jordan moved to unseal the documents so that he could use them to prepare a post-conviction motion with respect to his conviction for murdering an inmate. See United States v. Jordan, 485 F.3d 1214, 1219-24 (10th Cir.) (affirming murder conviction, upholding district court's 1 We refer to the defendants collectively as the BOP.
- decision to exclude evidence allegedly showing that Mr. Riker committed that murder, and concluding that even if court should not have excluded evidence, it was harmless error to do so), cert. denied, 128 S. Ct. 636 (2007). Mr. Jordan asserted that he was wrongly convicted and that although Mr. Riker provided statements to the FBI and testified for the government before the grand jury identifying Mr. Jordan as the murderer, Mr. Riker actually committed the murder.
Mr. Jordan contended that the government failed to notify him before his trial of Mr. Riker's filings in No. 05-cv-01178-MSK and that the sealed documents may be evidence or could lead to evidence that would support his post-conviction motion. Mr. Jordan asserted that any need to seal the documents had ended because Mr. Riker himself had acknowledged that his informant status is known at every federal prison and because Mr. Riker has been released from prison.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mark Jordan, a federal prisoner proceeding pro se, appeals from the district court's partial denial of his motion to unseal documents in Colorado district court case No. 05-cv-01178-MSK, Riker v. Federal Bureau of Prisons. Mr. Jordan argues that the district court (1) abused its discretion in denying his common-law right of access to the documents and (2) erred in failing to assess his right of access under the First Amendment. We affirm.
BACKGROUND In June 2005, Sean Riker, who was a federal prisoner at that time, filed a civil action in district court asserting that he was in imminent danger of harm from other prisoners. Defendants, the Bureau of Prisons (BOP) and two BOP directors, 1 moved for expedited sealing of Mr. Riker's complaint, documents #2 and #4, and his motion for expedited ruling on the complaint, document #9. The district court preliminarily sealed the documents, which the court found appeared to contain information of a sensitive nature, pending a determination of the BOP's motion to seal. In October, the district court granted the parties' stipulated motion to dismiss the case with prejudice.
Thank you for sharing! I think we find your environment just as fascinating as you do ours. It's difficult to imagine, but you paint a very detailed picture.
To answer your question...The first thing that made me smile today was watching my boys (11 & 8) making sandcastles on the beach, occasionally letting the waves of the ocean roll over their legs after they rolled their pants up to their knees. We live in the tropics in North Eastern Australia & it's Spring here at the moment so it became quite hot quite early... & I went looking for some shade while they were busy creating magnificant castles.
The second thing was reading a heart-felt reply to something I posted on another bloggers comment on BtB. It's nice to know you've made someone elses day :)
The Third thing was realising it was my Nana's 90th birthday today. My Uncle posted a photo on Facebook & she looks beautifully happy (she lives in New Zealand)
The fourth thing was reading a message someone left on my phone. My phone converts voice mail to text so the message I received said "You missed a call from a Private Number, who said"___ treatment complex. ____ this call is ____ important ____. To accept this free call press 1. To repeat this free call - This message was provided by Telstra at no charge to you." (I'm thankful for that, because I have NO idea who it was from, or what it was about). That made me smile and shake my head.
And the fifth thing that made me smile today is a childhood friend in New Zealand uploaded a photo to facebook of my brothers and I from 1985 - It's the funniest photo I've seen for a long time! Ok... that didn't just make me smile... I was laughing hysterically.
If I was able to I would have sent you photos of the things I've been talking about. That is something BtB is working on for us.
Thank you for reminding me of all that made me smile today :)
First let me start by saying that I apologize that I have not been my brother’s keeper as well as I should have been. I have been very busy with the family and work and as of late we are looking at relocating to Jacksonville, North Carolina late next year. It is not a move for the job, but one my wife and I wanted and is looking to retire in that area.
I hope my letter does some good with the courts, I know it can be difficult to get them to move from the norm and look at the situation outside of the box and realize what you are going through and have been through. While I think it should be clear that all veterans should be given special weight when going to court, many do not distinguish or gather the difference.
I am extremely happy to see that your case is finally getting the attention it needs I hope that the outcome will be the one that you are looking for. I know this is difficult on your family and with the economy not producing the jobs that are needed it makes it difficult for others to come up with money for situations like this. I will try to do more to help out as much as possible but I am limited with what can be done.
I am still hopeful that I can get a visit in this year on one of my weekends off or a return trip from Tennessee. It would be nice to see a friend and brother. There was a reunion this year in Washington D.C. I was told that there were a good number of marines that showed up for the trip. I was not able to make the trip however they are planning another later and they are looking at Jacksonville N.C. for the location. I visited Eric Quintero and family last month while looking at property in Jacksonville N.C.
Take care and hopefully it does not take as long for me to write next time. Semper Fi!!!
RSS
"The right is an important aspect of the overriding concern with preserving the integrity of the law enforcement and judicial processes." United States v. Hickey, 767 F.2d 705, 708 (10th Cir. 1985); see also FTC v. Standard Fin. Mgmt. Corp., 830 F.2d 404, 410 (1st Cir. 1987) ("The appropriateness of making court files accessible is accentuated in cases where the government is a party: in such circumstances, the public's right to know what the executive branch is about coalesces with the concomitant right of the citizenry to appraise the judicial branch."). But this right of access is not absolute; it can be rebutted when other interests outweigh the public interests in access. Mann, 477 F.3d at 1149. "All courts have supervisory powers over their own records and files. Thus a court, in its discretion, may seal documents if the public's right of access is outweighed by competing interests." Hickey, 767 F.2d at 708 (citations and quotation marks omitted). "The party seeking to overcome the presumption [of access] bears the - burden of showing some significant interest that outweighs the presumption." Mann, 477 F.3d at 1149 (quotation marks omitted). Whether a trial court exercises sound discretion will be based on the facts and circumstances of the individual case and the weighing of the parties' interests. See Hickey, 767 F.2d at 708.
- "Whether judicial records . . . should be sealed . . . is a matter left to the sound discretion of the district court." Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007). We will reverse a district court's order to seal documents only if "we have a definite and firm conviction that [the court] made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Id.
- decision to exclude evidence allegedly showing that Mr. Riker committed that murder, and concluding that even if court should not have excluded evidence, it was harmless error to do so), cert. denied, 128 S. Ct. 636 (2007). Mr. Jordan asserted that he was wrongly convicted and that although Mr. Riker provided statements to the FBI and testified for the government before the grand jury identifying Mr. Jordan as the murderer, Mr. Riker actually committed the murder.
Mr. Jordan contended that the government failed to notify him before his trial of Mr. Riker's filings in No. 05-cv-01178-MSK and that the sealed documents may be evidence or could lead to evidence that would support his post-conviction motion. Mr. Jordan asserted that any need to seal the documents had ended because Mr. Riker himself had acknowledged that his informant status is known at every federal prison and because Mr. Riker has been released from prison.
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
Mark Jordan, a federal prisoner proceeding pro se, appeals from the district court's partial denial of his motion to unseal documents in Colorado district court case No. 05-cv-01178-MSK, Riker v. Federal Bureau of Prisons. Mr. Jordan argues that the district court (1) abused its discretion in denying his common-law right of access to the documents and (2) erred in failing to assess his right of access under the First Amendment. We affirm.
BACKGROUND In June 2005, Sean Riker, who was a federal prisoner at that time, filed a civil action in district court asserting that he was in imminent danger of harm from other prisoners. Defendants, the Bureau of Prisons (BOP) and two BOP directors, 1 moved for expedited sealing of Mr. Riker's complaint, documents #2 and #4, and his motion for expedited ruling on the complaint, document #9. The district court preliminarily sealed the documents, which the court found appeared to contain information of a sensitive nature, pending a determination of the BOP's motion to seal. In October, the district court granted the parties' stipulated motion to dismiss the case with prejudice.
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS March 10, 2009
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
SEAN RIKER,
Plaintiff,
v. No. 08-1123
(D.C. No. 1:05-cv-01178-MSK)
FEDERAL BUREAU OF PRISONS; (D. Colo.)
HARLEY LAPPIN, Director, Federal
Bureau of Prisons; RAY HOLT,
Director, Southeast Region Federal
Bureau of Prisons,
Defendants-Appellees.
MARK JORDAN,
Party-in-Interest-
Appellant.
ORDER AND JUDGMENT *
Before MURPHY, McKAY, and ANDERSON, Circuit Judges
To answer your question...The first thing that made me smile today was watching my boys (11 & 8) making sandcastles on the beach, occasionally letting the waves of the ocean roll over their legs after they rolled their pants up to their knees. We live in the tropics in North Eastern Australia & it's Spring here at the moment so it became quite hot quite early... & I went looking for some shade while they were busy creating magnificant castles.
The second thing was reading a heart-felt reply to something I posted on another bloggers comment on BtB. It's nice to know you've made someone elses day :)
The Third thing was realising it was my Nana's 90th birthday today. My Uncle posted a photo on Facebook & she looks beautifully happy (she lives in New Zealand)
The fourth thing was reading a message someone left on my phone. My phone converts voice mail to text so the message I received said "You missed a call from a Private Number, who said"___ treatment complex. ____ this call is ____ important ____. To accept this free call press 1. To repeat this free call - This message was provided by Telstra at no charge to you." (I'm thankful for that, because I have NO idea who it was from, or what it was about). That made me smile and shake my head.
And the fifth thing that made me smile today is a childhood friend in New Zealand uploaded a photo to facebook of my brothers and I from 1985 - It's the funniest photo I've seen for a long time! Ok... that didn't just make me smile... I was laughing hysterically.
If I was able to I would have sent you photos of the things I've been talking about. That is something BtB is working on for us.
Thank you for reminding me of all that made me smile today :)
Take care!
Nicki
First let me start by saying that I apologize that I have not been my brother’s keeper as well as I should have been. I have been very busy with the family and work and as of late we are looking at relocating to Jacksonville, North Carolina late next year. It is not a move for the job, but one my wife and I wanted and is looking to retire in that area.
I hope my letter does some good with the courts, I know it can be difficult to get them to move from the norm and look at the situation outside of the box and realize what you are going through and have been through. While I think it should be clear that all veterans should be given special weight when going to court, many do not distinguish or gather the difference.
I am extremely happy to see that your case is finally getting the attention it needs I hope that the outcome will be the one that you are looking for. I know this is difficult on your family and with the economy not producing the jobs that are needed it makes it difficult for others to come up with money for situations like this. I will try to do more to help out as much as possible but I am limited with what can be done.
I am still hopeful that I can get a visit in this year on one of my weekends off or a return trip from Tennessee. It would be nice to see a friend and brother. There was a reunion this year in Washington D.C. I was told that there were a good number of marines that showed up for the trip. I was not able to make the trip however they are planning another later and they are looking at Jacksonville N.C. for the location. I visited Eric Quintero and family last month while looking at property in Jacksonville N.C.
Take care and hopefully it does not take as long for me to write next time. Semper Fi!!!