An Order To Unseal Documents In A Previously Settled Lawsuit Is Affirmed When Continued Secrecy Was No Longer Warranted

In Kamakana v. City & County of Honolulu (2006 Daily Journal D.A.R. 5946, 06 Cal. Daily Op. Serv. 4035, C.A. 9 (Hawaii), May 17, 2006)), the United States Court of Appeals considered a newspaper's request to unseal court records in a previously settled lawsuit by a police officer who claimed he had suffered retaliation for his whistleblower activities.

Although the parties agreed in their settlement that the records would remain sealed, the Court ruled that because of a strong presumption in favor of access, and a lack of compelling reasons for keeping the records secret, a magistrate judge did not abuse her discretion by ordering the documents unsealed.


Kenneth Kamakana, a Honolulu police detective, sued the City and County of Honolulu and its officials (collectively, "City") claiming civil rights violations stemming from alleged retaliation against him for his reporting of police misconduct to his superiors and to the United States Federal Bureau of Investigation ("FBI"). The City then served the FBI with requests for witness depositions and documents. The parties settled the case, and the federal district court granted their motion that the records be sealed, but added: "The court reserves the right to unseal materials filed under seal if, upon reviewing the sealed materials, the court determines that they should be available to the public or otherwise do not merit sealed status."

The Honolulu Advertiser newspaper filed a motion to unseal the judicial record in the case. The magistrate judge ordered the parties to submit all materials they wished to keep sealed, along with the legal justification for doing so, and said the burden would be on those seeking to keep documents secret to show good cause for doing so.

After reviewing the documents, the magistrate judge ordered most of them unsealed, carving narrow exceptions for personal information such as the home addresses and social security numbers of law enforcement officers. Both the City and the FBI appealed.


The Court's analysis started with the long-held recognition of a "general right to inspect and copy public records and documents, including judicial records and documents." A party seeking to seal a judicial record must overcome a "strong presumption in favor of access" by showing "compelling reasons" for doing so. That is defined as the use of court records for "improper purposes," such as the use of records to gratify private spite, promote public scandal, circulate libelous statements, or release trade secrets.

The Court also noted that it has separate standards for dispositive and nondispositive judicial records, since the former directly apply to the outcome of a case, while the latter may not. The former requires "compelling reasons" to remain secret, while the latter require the less stringent "good cause" standard.

The City did not show "compelling reasons" for keeping the documents sealed, the Court said. Its assertions that making the records public would hinder operations or endanger individuals were insufficiently specific to constitute "compelling reasons" for secrecy.

Likewise, the Court found that the FBI took "a broad, categorical approach" to justify keeping the documents sealed. "Simply mentioning a general category of privilege, without any further elaboration of any specific linkage with the documents, does not satisfy the burden," the Court ruled.

Therefore, the magistrate judge did not abuse her discretion in determining that no valid reasons remained for keeping the documents sealed, and ordering them unsealed. The judgment was affirmed.

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