Sunday, May 21, 2006, 5/21/2006 10:43:00 AM

Hawaii Five-O

By Todd
Kenneth Kamakana was a police detective in Honolulu. He felt there was rampant corruption in the Honolulu police department in the late 1990's and apparently complained about it. He allegedly had some adverse employment actions taken against him for trying to be a whistleblower . He then sued the City and County of Honolulu for retaliation and that case settled in a confidential settlement.

The Honolulu Advertiser is a newspaper and it caught wind of Kamakana's suit. It rightly figured that police corruption and allegations of it by a former police officer makes good print. They wanted access to the documents that were used and disclosed during Kamakana's suit. Problem was, the court had entered a protective order restricting access to, and the use of, those documents during the litigation. They were under seal. Once the case settled, the Honolulu Advertiser said it still wanted to see the documents. And the federal district court reviewed them all, in camera, and determined there weren't compelling reasons why the newspaper shouldn't be able to review them too. An appeal was taken to the United States Court of Appeals for the Ninth Circuit.

The Ninth Circuit noted that "unless a particular court record is one traditionally kept secret, a strong presumption in favor of access" is the starting point of the analysis. Editors' note: if you represent the City at this point, you do not like where the Ninth Circuit is going with this. The Ninth Circuit went on to note that "compelling reasons" must exist to keep the judicial record sealed and those compelling reasons are usually rebutted only if the party seeking a permanent lock on the public record can demonstrate: (a) the anticipated use of public records is to gratify private spite; (b) the anticipated use of the public record is promote public scandal or circulate libelous statements; or (c) the anticipated use of the public record is to release trade secrets.

The Ninth Circuit essentially agreed with the lower court and affirmed its ruling. Without going into all of the Court's reasoning, suffice it to say that the following language from the Ninth Circuit sums it up: "The mere fact that the production of records may lead to a litigant's embarrassment, incrimination or exposure to further litigation will not, without more, compel the court to seal its records."

Wow. Stay tuned. The Ninth Circuit's decision is Kamakana v. City and County of Honolulu, 2006 WL 1329926 (9th Cir. May 17, 2006).

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