Krynicki, Matter of

• Citation: 983 F.2d 74
• Decision Date: 08 December 1992
• Docket Number: Nos. 92-2227,92-2775,s. 92-2227
• Parties: 20 Media L. Rep. 2216 In the Matter of Grand Jury Proceedings: Victor KRYNICKI, Respondent-Appellant. Carol Falk LOPACICH, Plaintiff-Appellant, v. Ralph FALK II, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

Page 74

983 F.2d 74

20 Media L. Rep. 2216

In the Matter of Grand Jury Proceedings: Victor KRYNICKI Respondent-Appellant Carol Falk LOPACICH, Plaintiff-Appellant, v. Ralph FALK II, Defendant-Appellee.

Nos. 92-2227, 92-2775.

United States Court of Appeals Seventh Circuit.

Submitted Nov. 6, 1992.

Decided Dec. 8, 1992.

Alan Rhine, Stackler & Augustine, Chicago, IL, for Victor Krynicki.

Brian W. Blanchard, Office of the U.S. Atty., Criminal Div., Barry R. Elden, Asst. U.S. Atty., Office of the U.S. Atty., Criminal Receiving, Appellate Div., Chicago, IL, for U.S.

Paul D. Weatherhead, John A. Cook, Hough, Cook, Weatherhead & Kinsella, David M. Levin, John W. Hough, Hough & Cook, Chicago, IL, for Carol Falk Lopacich.

Lee A. Watson, Jaye Quadrozzi, Melvin E. Katten, Katten, Muchin & Zavis, Chicago, IL, for Ralph Falk II.

ON MOTIONS TO SEAL APPELLATE BRIEFS

EASTERBROOK, Circuit Judge.

Parties to two pending appeals want the briefs sealed. Not the names of the parties or portions of the record, steps to protect property or privacy interests in the event of pressing need, but the whole appeal--briefs, record, and presumably the oral argument. Requests to seal the briefs reach me a few times every year in my capacity as motions judge. I always deny these motions, informing the parties that they must file public briefs but may add sealed supplements if necessary to discuss in detail materials that they are legally required to keep confidential. Other judges of this court follow the same practice, and I am aware of only one recent case in which briefs were withheld from the public. A Sealed Case, 890 F.2d 15 (7th Cir.1989). That appeal involved a collateral dispute rather than the substance of the case, and we published the opinion to facilitate public scrutiny of our processes.

Still the motions keep coming. The two under consideration were received on the same day. They are alike in citing no authority for withdrawing the entire litigation from the public record. None is to be found, although there are scattered, and unexplained, examples. E.g., Ospina v. Trans World Airlines, Inc., 975 F.2d 35, 36 (2d Cir.1992). For the guidance of litigants, I am publishing a brief explanation of my practice.

None of the Federal Rules of Appellate Procedure authorizes a court to seal the briefs. These rules do not exhaust the powers of appellate courts, see Fed.R.App.P. 2 and Circuit Rule 2, but when proceeding in common law fashion courts must reckon with the corpus of the common law. Judicial proceedings in the United States are open to the public--in criminal cases by constitutional command, and in civil cases by force of tradition. Press-Enterprise Co. v. Superior Court, 478 U.S. 1, 106 S.Ct. 2735, 92 L.Ed.2d 1 (1986); Nixon v. Warner Communications, Inc., 435 U.S. 589, 597-99, 98 S.Ct. 1306, 1311-13, 55 L.Ed.2d 570 (1978); In re Reporters Committee for Freedom of the Press, 773 F.2d 1325, 1331-33 (D.C.Cir.1985) (Scalia, J.). What happens in the halls of government is presumptively open to public scrutiny. Judges deliberate in private but issue public decisions after public arguments based on public records. The political branches of government claim legitimacy by election, judges by reason. Any step that withdraws an element of the judicial process from public view makes the ensuing decision look more like fiat; this requires rigorous justification.

A desire to protect both persons who may be unjustly suspected of crime and the safety of those who provide information underlies Fed.R.Crim.P. 6(e)(2), which draws a veil of secrecy over "matters occurring before the grand jury". Any indictment is public, along with the evidence at trial. The grand jury proceedings themselves may be disclosed if the need is great. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 99 S.Ct. 1667, 60 L.Ed.2d 156 (1979). Cf. United States v. Dorfman, 690 F.2d 1230 (7th Cir.1982) (same treatment of documents, such as transcripts of wiretaps, sealed under statutory authority). Protective orders entered during discovery in civil cases have a similar justification, and similar limits. Confidentiality while information is being gathered not only protects trade secrets but also promotes disclosure: parties having arguable grounds to resist discovery are more likely to turn over their information if they know that the audience is limited and the court will entertain arguments focused on vital knowledge that a party wants to use later. See Seattle Times Co. v. Rhinehart, 467 U.S. 20, 104 S.Ct. 2199, 81 L.Ed.2d 17 (1984). Information that is used at trial or otherwise becomes the basis of decision enters the public record. In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1308-16 (7th Cir.1984).

Doctrines that initially seem to support secrecy thus turn out to be about the timing of disclosure. Cf. In re Search Warrant, 855 F.2d 569 (8th Cir.1988); Interested Individuals v. Pulitzer Publishing Co., 895 F.2d 460 (8th Cir.1990). Secrecy persists Public argument is the norm even, perhaps especially, when the case is about the right to suppress publication of information. Briefs in the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713, 91 S.Ct. 2140, 29 L.Ed.2d 822 (1971), and the hydrogen bomb plans case, United States v. Progressive, Inc., 467 F.Supp. 990, rehearing denied, 486 F.Supp. 5 (W.D.Wis.), appeal dismissed, 610 F.2d 819 (7th Cir.1979), were available to the press, although sealed appendices discussed in detail the documents for which protection was sought. The Court denied a motion to close part of the oral argument in the Pentagon Papers case. 403 U.S. 944, 91 S.Ct. 2271, 29 L.Ed.2d 854 (1971). See also In re United States, 872 F.2d 472 (D.C.Cir.1989) (public briefs and opinion in a national security case, although parts of the dissenting opinion were sealed to protect confidences).

                only if the court does not use the information to reach a decision on the merits.   See Globe Newspaper Co. v. Pokaski, 868 F.2d 497, 509-10 (1st Cir.1989) (distinguishing the practice of sealing a grand jury's "no bill" from the tradition of open access to records of cases that have been tried)
                

The occasional withholding of the name of a litigant also does not shield the facts and arguments of the case. The parties present public arguments leading to a public decision. E.g., John Doe Agency v. John Doe Corp., 493 U.S. 146, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989). See also Coe v. United States District Court, 676 F.2d 411 (10th Cir.1982) (stressing the strong presumption that litigants' identities be disclosed).

Have the litigants in today's two cases done more to justify the sealing of the briefs than the litigants in cases such as Pentagon Papers, where disclosure was said to threaten the national security, and The Progressive, where disclosure was said to threaten the survival of mankind? Not exactly.

In the first of these two cases, the district judge held Victor Krynicki in contempt of court for refusing to supply information called for by a grand jury's subpoena. The subpoena requires Krynicki, a physician, to produce the records of 120 named patients he treated for weight loss. Krynicki moved to quash the subpoena, asserting a physician-patient privilege. Chief Judge Moran denied this motion. When Krynicki still did not produce the documents, the court imposed a fine of $100 per day, which has been accumulating since May 15, 1992. Krynicki's brief on appeal asks us to establish a privilege in medical records and contends that the subpoena is at all events unreasonably broad.

Krynicki filed his brief in public, and the prosecutor does not contend that this document breaches the confidentiality of the grand jury established by Rule 6(e)(2). Only "matters occurring before" the grand jury are secret. In re Special March 1981 Grand Jury, 753 F.2d 575 (7th Cir.1985). Persons from whom the grand jury seeks information may announce to the public, as Krynicki has done, that the demands have been received and will be resisted. Courts routinely receive public briefs and issue opinions in cases of this nature, while being careful to omit details within the scope of Rule 6(e)(2). E.g., In re Sinadinos, 760 F.2d 167 (7th Cir.1985); In re Klein, 776 F.2d 628 (7th Cir.1985).

Although Krynicki's brief is available to the public, the United States wants to file its reply under seal. Its full rationale is: "The record which forms the basis of the instant appeal has been placed under seal. The government has timely filed its responsive brief and seeks to continue to comply with the requirements of Fed.R.Crim.P. 6(e)." What requirement of Rule 6(e) might the prosecutor have in mind, given that Krynicki has not produced anything yet? The motion does not say. The brief tendered with the motion discusses the subject matter of the grand jury's inquiry in only the most general terms, revealing nothing that the prosecutor has not already communicated to Krynicki. The brief does not discuss evidence produced by other witnesses before the grand jury, and it had no need to. United States v. R. Enterprises, Inc., 498 U.S. 292, 111 The second appeal arises out of private litigation under the diversity jurisdiction. Children of a wealthy entrepreneur are fighting about money. Like many a quarrel among the rich or famous, this one has been publicized. E.g., Matt O'Connor, "Baxter feud: Tales of the rich and sad", Chicago Tribune Sept. 28, 1992, sec. 1, page 1, col. 1. Defendant Ralph Falk II believes that his sister, plaintiff Carol Falk Lopacich, who received a total of...