Kamakana v. City and County of Honolulu

Decision Date17 May 2006
Docket NumberNo. 04-15241.,04-15241.
Citation447 F.3d 1172
PartiesKenneth KAMAKANA, Plaintiff-Appellee, United States of America, Intervenor-Appellant, Gannett Pacific Corporation, dba The Honolulu Advertiser, Intervenor-Appellee, v. CITY AND COUNTY OF HONOLULU; Lee Donohue, in his official capacity; Milton Olmos, in his official capacity, Defendants-Appellants, and Lee Donahue, individually; Milton Olmos, individually, Defendants.
CourtU.S. Court of Appeals — Ninth Circuit

Jerold T. Matayoshi, Fukunaga, Matayoshi, Hershey & Ching, Honolulu, HI, for the defendant-appellant.

Steve Frank, U.S. Department of Justice, Civil Division, Washington, DC, for the intervenor-appellant.

William J. McCorriston, McCorriston Miller Mukai MacKinnon, Honolulu, HI, for the plaintiff-appellee.

Jeffrey S. Portnoy, Cades, Schutte, Fleming & Wright, Honolulu, HI, for the intervenor-appellee.

Appeal from the United States District Court for the District of Hawaii; Leslie E. Kobayashi, Magistrate Judge, Presiding. D.C. No. CV-00-00729-LEB.

Before BEEZER, HAWKINS, and McKEOWN, Circuit Judges.

McKEOWN, Circuit Judge.

We consider whether court records, originally filed under seal as attachments to motions in a civil action alleging police corruption, must be released to a newspaper under the common law right of access. This appeal stems from a suit by Kenneth Kamakana, a Honolulu police detective, claiming retaliation by the City and County of Honolulu for his whistleblower activities. Although that suit settled and its merits are not at issue here, during the litigation scores of documents were filed under seal in accord with a stipulated protective order. On the motion of intervenor Gannett Pacific Corporation/The Honolulu Advertiser ("Honolulu Advertiser"), the magistrate judge undertook a detailed and exhaustive review and unsealed virtually all of the pleadings and documents. The City and County of Honolulu, as well as Lee Donohue and Milton Olmos in their official capacities (collectively the "City"), with the United States as intervenor, challenge that order. We affirm.


Kamakana was a detective in the Honolulu Police Department (HPD). From 1991 to 2000, he was in the elite Criminal Intelligence Unit (CIU), which investigates organized crime. In September 2000, Kamakana was transferred out of CIU. The following year, the department's Internal Affairs division initiated criminal and administrative investigations against Kamakana.

Shortly after his transfer in 2000, Kamakana filed a civil rights action against the City and others, alleging that the City violated his free speech rights, conspired to violate his civil rights, and retaliated against him as a whistleblower. The crux of his claim was that his transfer was in retaliation for his reporting misconduct and illegal acts by other HPD officers to his superiors and the Federal Bureau of Investigation.

After discovery and other pre-trial proceedings, the parties filed motions for summary judgment under seal. The district court denied, in large part, the City's motion and Kamakana's cross-motion for partial summary judgment on his whistleblowing claim. The case settled before trial and Kamakana stipulated to dismiss all of his claims.


We recount in detail the procedural background as it provides context for the unsealing order. In June 2001, the magistrate judge approved an amended, stipulated protective order, which restricted access to discovery materials to parties and counsel and limited their use solely for the litigation. Discovery began in earnest following entry of the protective order. In December 2001, the City served the United States, a third party, with requests for witness depositions and documents.

In accord with the protective order, the parties sought court permission to file their summary judgment pleadings under seal. The district court granted the motion but stated, "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."

In the fall of 2002, the Honolulu Advertiser filed a motion to intervene for the limited purpose of modifying the protective order and unsealing the judicial record. The magistrate judge granted the motion to intervene and modified the protective order. Because the parties had simply stipulated to the protective order, a particularized showing of "good cause" to keep the documents under seal had never been made to the court as required by Federal Rule of Civil Procedure 26(c). The magistrate judge ordered the parties to submit all materials they wished to keep sealed along with "specific averments as to why good cause exists." The order noted that "[t]he burden of showing good cause will be on the party seeking to keep the information and/or documents confidential." The court declined at that time to determine whether the public had a common law right to access the documents because "such a determination is necessary only after it is shown that good cause exists to restrict disclosure."

Slightly different procedures applied to the City and the United States. The court ordered the City to submit its materials to a special discovery master for good cause determinations under Rule 26(c). Though not yet an intervenor at the time, the United States was directed to submit materials directly to the magistrate judge for an in camera good cause analysis.

In February 2003, the United States submitted transcripts and documents for the in camera review. In June 2003, the magistrate judge ordered, subject to limited specified exceptions, the transcripts and documents to be unsealed.

After in camera inspection of the City's documents, the discovery master issued a report and recommendation in February 2003 that listed general categories of documents to remain sealed and redactions to be made. The magistrate judge rejected the report and ordered the special master to identify specific documents to be sealed. Following this directive, the special master submitted an amended report and recommendation, categorizing each document as sealed, unsealed, or unsealed with redactions based on the good cause standard. The magistrate judge adopted the report and the City immediately filed a motion to reconsider, which the judge took under advisement.

The City and the Honolulu Advertiser then met with the special master who took another look at various documents and issued another report and recommendation. In October 2003, the magistrate judge adopted this report. In the same order, the magistrate judge noted that the Ninth Circuit had decided in Foltz v. State Farm Mutual Auto. Insurance Company, 331 F.3d 1122, 1135 (9th Cir.2003), that "the presumption of access is not rebutted where documents which are the subject of a protective order are filed with the court as attachments to summary judgment motions" and that "to retain any protected status for documents attached to a summary judgment motion, the proponent must meet the `compelling reasons' standard and not the lesser `good cause' determination."

In response to this articulation of the controlling standard, the City and United States both sought reconsideration. The City's motion did not set forth "compelling reasons" to keep its documents secret. Instead, it asserted that the magistrate judge had not given the City enough notice to make such a showing. Similarly the United States' submission detailed no compelling reasons, arguing only that the Honolulu Advertiser had not objected to the United States' proposed redactions.

In an order dated January 22, 2004, the magistrate judge directed the production of most of the City's documents that were under seal. The magistrate judge reasoned that an intervening change in controlling law, the Foltz case, compelled her to reconsider and conclude that almost all of the documents attached to the dispositive motions should be unsealed because no "compelling reason" rebutted the presumption of public access. After an in camera inspection of the sealed documents, described as an "exhausting if not exhaustive" process, the magistrate judge held that there was no good cause to keep sealed most of the other materials, mainly non-dispositive motions and attachments. The magistrate judge displayed the fruits of her in camera labors in three detailed indices attached to the order—Exhibits A, B and C.1

As to the United States, in an order dated January 28, 2004, the magistrate judge required the unsealing of all the documents the United States had asked to keep protected, granting redactions related to the home addresses and Social Security numbers of law enforcement officers and Kamakana. No detailed index was necessary because the United States requested redaction of a manageable number of documents, all of which were attached to dispositive pleadings.

The magistrate judge ordered the record unsealed by February 5, 2004. In advance of the deadline, the City, with the United States as amicus curiae, requested an emergency stay, which we granted. We also granted the United States' motion for intervention on appeal.


The broad issue before us is whether the magistrate judge2 abused her discretion in determining that continued secrecy was no longer warranted for almost all of the documents currently under seal.3 To answer the question, we first provide a general overview of the common law right of access to judicial records and then consider whether the documents the City and the United States seek to protect are subject to the right of access.


Historically, courts have recognized a "general right to inspect and copy public records and documents,...

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