United States District Court, E.D. New York
MEMORANDUM & ORDER
NICHOLAS G. GARAUFIS, UNITED STATES DISTRICT JUDGE.
the court are three applications by Defendant Mark Johnson
for leave to file various documents submitted in conjunction
with Defendant's forthcoming sentencing under seal or
subject to redactions. First, Defendant requests permission
to file redacted versions of sentencing letters submitted by
eleven of Defendant's friends and former colleagues, all
of whom are currently or were formerly employed in the
financial industry. (Def. Mar. 9, 2018, Letter ("Mar. 9
Ltr.") (Dkt. 204).) In this application, Defendant also
requests leave to file under seal a letter submitted by a
teacher at Defendant's children's school.
(Id.) Second, Defendant seeks leave to file under
seal twelve other letters that "contain sensitive
information about [Defendant's] children that does not
belong in the public domain." (Def. Mar. 14, 2018,
Letter ("Mar. 14 Ltr.") (Dkt. 206) at 1.) Third,
Defendant requests permission to file publicly redacted
versions of his sentencing memorandum and the related
declarations and exhibits. (Def. Mar. 25, 2018, Letter
("Mar. 25 Ltr.") (Dkt. 209).) The Government has
not opposed these applications.
applications are GRANTED IN PART and DENIED IN PART.
proceedings are presumed to be open to the public under the
First Amendment's right of access to judicial proceedings
and documents." United States v. Huntley, 943
F.Supp.2d 383, 385 (E.D.N.Y. 2013) (Weinstein, J.).
"Documents used in aid of sentencing are independently
presumed to be open to the public pursuant to the common law
right of public access." Id. Both sentencing
memoranda and letters of support from third parties are
"judicial documents" to which "[a] strong
presumption of public access" attaches. United
States v. Munir, 953 F.Supp.2d 470, 477 (E.D.N.Y. 2013)
(Weinstein, J.); see United States v. Gotti.No.
17-CR-127 (ARR), 2017 WL 5027990, at *1 (E.D.N.Y. Oct. 30,
2017) (collecting cases). This is so because "the
presumption of public access is entitled to great weight
whenever a party submits a document to the court for the
purposes of influencing its decision, regardless of whether
the court ultimately relies on this document"
Gotti, 20l7 WL 5027990, at *1 (citing Lugosch v.
Pyramid Co. of Onondaga, 435 F.3d 110, 123 (2d Cir.
common-law right of access may be overcome by
"balanc[ing] competing considerations against it, "
the First Amendment right of access can be overcome with
"on the record findings ... that closure is essential to
preserve higher values and is narrowly tailored to serve that
interest." Lugosch, 435 F.3d at 120 (first
quoting United States v. Amodeo (Amodeo
II), 71 F.3d 1044, 1050 (2d Cir. 1995), and then
quoting In re N.Y. Times Co.. 828 F.2d 110, 116 (2d Cir.
1987)). Although these inquiries are technically distinct,
courts often conflate them and focus on the more demanding
First Amendment standard. See, e.g.. Gotti, 2017 WL
5027990, at * 1; Munir, 953 F.Supp.2d at 477. The
essential question is whether there are privacy or other
interests at stake sufficient to overcome the fact that
sentencing documents "are intended to play a significant
role 'in the exercise of Article III judicial
power.'" See Munir, 953 F.Supp.2d at 477
(quoting Amodeo II, 71 F.3d at 1049). "[T]he privacy
interests of innocent third parties .. . should weigh heavily
in a court's balancing equation...." N.Y. Times. 828
F.2d at 116; see also United States v. Litvak, No.
13-CR-19, 2015 WL 328876, at *l-2 (D. Conn. Jan. 23, 2015)
(protecting the privacy interests of minor children).
Letters Written by People Employed in the Financial Services
and as noted above, Defendant seeks leave to file versions of
eleven letters submitted by people employed in the financial
services industry (the "Writers") with the
Writers' "names and other personal identifying
information" redacted. (Mar. 9 Ltr.) Defendant claims
that the Writers have "expressed concern with having
their personal information in the public domain for fear of
media exposure and/or potential repercussions in their
workplace." (Mar. 9 Ltr.)
court is not convinced that Defendant has met his burden for
rebutting the presumption of public access to these letters,
including the Writers' identities. Although the court is
sensitive to the need for caution when publishing the
personal information of third parties, concerns that
typically animate the redaction of such information are not
obviously present here. See, e.g.. United States v.
Armstrong, 185 F.Supp.3d 332, 338 (E.D.N.Y. 2016)
(permitting redaction of documents given the need to
"demonstrate[e] institutional support for
cooperators"); United States v. King, No.
10-CR-122 (JGK), 2012 WL 2196674, at *3 (S.D.N.Y. June 15,
2012) (permitting redaction of records containing third
parties' medical information). In one case, a district
court rejected the government's argument for sealing the
names of several unindicted third parties because the
government had not specified particular reputational concerns
that implicated the third parties' "substantial
privacy interests, " nor had the government established
the likelihood of reputational injury to the third parties
that would come from the mere disclosure of their names.
United States v. Simpson, No. 09-CR-249-D, 2010 WL
3633611, at *3 & n.2 (N.D. Tex. Sept. 20, 2010).
Similarly, Defendant has not made particular arguments for
why reputational harm may come to the Writers, nor has
Defendant made an argument for why such harm is likely.
Unless Defendant is able to make those showings, the court
cannot grant his request for redactions as to the
Writers' identities, including their current employment
the Writers' identities are not sufficiently private in
nature to overcome the presumption of public access, the
court does agree that the Writers have greater privacy
concerns regarding their contact information. See Gordon
v. FBI, 388 F.Supp.2d 1028, 1044 (N.D. Cal. 2005)
(stating that the FBI need not release contact information
for policymaking officials). The court therefore grants
Defendant's request to redact the Writers' contact
Defendant's request to redact personally identifying
information about the Writers is only granted with respect to
the Writers' contact information. In advance of the below
deadline for compliance with this Memorandum and Opinion,
counsel for Defendant may also submit a memorandum of law
under seal explaining with particularity why the disclosure
of the Writers' names poses a substantial risk of
reputational injury or request to withdraw these eleven
letters from the court's consideration of Defendant's
Letters Containing Information about Defendant's Children
also seeks leave to file under seal one letter written by a
teacher at Defendant's children's school, as well as
twelve letters containing personal information about
Defendant's children. (Mar. 9 Ltr.; Mar. 14 Ltr.)
Defendant states that, under the policy of the school where
she works, the teacher "cannot file her letter
containing sensitive information about the children in the
public domain." (Mar. 9 Ltr.) As to the other letters,
Defendant claims that ...