The court of appeals generally have recognized a "strong presumption" in favor of access, holding that only compelling reasons justify denying access to information in the case file. See, e.g., United States v. Beckham, 789 F.2d 401, 409-15(6th Cir. 1986)(trial court "must set forth substantial reasons for denying" access to its records); and F.T.C. v. Standard Financial Management Corp., 830 F.2d 404, 408-10(1st Cir. 1987)(the burden of overcoming the presumption of open judicial records is on the party seeking to maintain the court records in camera).

One should also note that the "presumption of public access" established through common law is not the only basis for access to court documents. As Deyling notes:

the Supreme Court has recognized a limited First Amendment right of access to judicial proceedings. In Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 575-78(1980), the Court held that "in guaranteeing freedoms such as those of speech and press, the First Amendment can be read as protecting the right of everyone to attend trials so as to give meaning to those explicit guarantees."

So, the above cases indicate to me that in considering the right to access to court documents, one has to start from the position that the documents are and should be available to the public. From there, one must then show some compelling reason why they should not be available. I think this differs from Jones's attempts to frame the issue as one in which an individual's privacy comes first and one must prove why public access is more important than maintaining that privacy.

Denying Public Access
As indicated above, we start with a presumption that court records are public documents. Now we turn our attention to when or if there may be restrictions placed on access to the documents or the information contained therein. Specifically, we are interested in whether any of these restrictions may be applicable in the relation to G2's motions. Jones poses the question with regard to G2:

"is there a history of writing anti-IBM articles and maybe a(sic) interest in digging up some dirt to turn into a headline?"

The issue of whether G2 wants to dig up some dirt to turn into a headline seems to be irrelevant. In fact, as Deyling notes, the

Supreme Court has been reluctant to place restrictions on the use of public record information, instead suggesting that government policies intended to protect privacy should address how information is collected and maintained. In Cox Broadcasting Corporation v. Cohn, 420 U.S. 469, 495 (1975), for example, the Court noted that "[if] there are privacy interests to be protected in judicial proceedings, the [government] must respond by means which avoid public documentation or other exposure of private information."(emphasis added)

"[s]imply showing that the information would harm the company's reputation is not sufficient to overcome the strong common law presumption in favor of public access to court proceedings and records." Brown & Williamson Tobacco Corp. v. Federal Trade Comm'n, 710 F.2d 1165, 1179 (6th Cir. 1983)

I conclude from this is the question of whether G2 wants to dig up dirt is not only not relevant to the success of their motion, it is not supposed to be a factor even if it were relevant.

It appears Jones also missed an opportunity in her article to explain the "experience and logic" test that was set forth in Press-Enterprise Co. v. Superior Court, 478 U.S. 1 (1986), which is used to determine whether there was a First Amendment right of access to documents by determining:

(1) whether the document is one which has historically been open to inspection by the press and public; and
(2) whether public access plays a significant positive role in the functioning of the particular process in question.

Jones goes on to examine both The Privacy Act of 1974 and the Freedom of Information Act (FOIA). I'm not exactly sure why since Jones notes that the "FOIA doesn't apply to public access to the courts". Nevertheless, she discusses the National Archives and Records Administration v. Favish case and before that, she discusses the Privacy Act and how it was involved in Doe v. Chao. An important point that Jones leaves out though is that just as the FOIA does not apply to court records, neither does The Privacy Act of 1974. So, if you are studying the extent of privacy rights in the U.S., these cases may be relevant. However, since the G2 action involves court records, both of the cited laws and the resulting case law involving them would seem to be wholly irrelevant.

So, on what other basis might the court documents in question be eligible for protection from the presumption of access? Jones shares some insight on some other cases like U.S. v. McVeigh, 119 F.3d 806(10th Cir. 1997), United States v. Corbitt, 879 F.2d 224, 228(7th Cir. 1989)("this court has held that the first amendment right of access extends to documents submitted in connection with a judicial proceeding"), and U.S. Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989). The last case mentioned is the one in which the concept of "practical obscurity" was set forth. "Practical obscurity" is the idea that even though there were all kinds of "private" information in court records, one didn't have to worry about it being published around the world because it was so difficult to get to (one had to actually go to the courthouse, go through each paper record, etc.). Of course, this "practical obscurity" is turning into "ground zero" in efforts to maintain some privacy of the information in court documents in the new electronic age.

While these cases provide us with some interesting information about access to records in criminal cases and help set the environment for work being done involving access to electronic court records, I do not think they will be of much use to the court in the present G2 action. Of course, IBM's lawyers are very good and they may be able to show how they do apply.

Privacy and Electronic Court Records
While Jones's article seems to completely miss the mark in relation to G2's actions (spending more time posing rhetorical questions regarding Jones's suspicions about G2's motives), there are some interesting questions posed. Early in the article, Jones tries to make a point about privacy with the following paragraphs:

Let's talk about you. Let's say you are going to file for bankruptcy. Maybe you suffered a severe illness, or a child did, and then you lost your job. There you are in debt, maybe ill, no hope of keeping your nose above water. At your wit's end, you decide to file for bankruptcy, so you can get a fresh start and at least keep up from then on. You're an extra honorable person, so you file for the kind of bankruptcy where the court does a workout, and you pay a certain amount on the dollar, rather than just wiping the debt out. So, off you go to court and you file.

Your courthouse, let's imagine, puts all court filings into its publicly accessible database. What is now in there once you file your bankruptcy papers? Your name, your address, your social security number, where you work now, if you do, your mortgage number, your credit card numbers and what you owe them, any other outstanding debts, carefully and methodically listed. See a problem with that? If you are worried about identify theft, you probably do. So, does the public have a right to see all that?

Fortunately, there are people working to address these very real issues (and they acknowledge that there are competing positions). For instance, the Internet for Lawyers web site includes an extensive writeup on the friction between privacy and public access. Of particular interest is this paragraph:

At the federal courts, the Report of the Judicial Conference Committee on Court Administration and Case Management on Privacy and Public Access to Electronic Case Files was adopted in September 2001. It can be viewed online at www.privacy.uscourts.gov/Policy.htm. Of particular concern to federal courts was public access to bankruptcy filings, because of the large amount of sensitive information contained in these filings, including Social Security numbers, financial account numbers, detailed profiles of personal spending habits, and medical information. However, the administrative office of the U.S. courts recognized that in order for the public to hold the bankruptcy system accountable, access to records that show whether an individual has filed for bankruptcy, the type of proceeding, and the identities of the parties in interest should be available. A debtor's personal, identifying information and financial account numbers should not be included in electronic or hard copies of filings. In practice, this means that only the last four digits of Social Security and financial account numbers are to appear in public records, and the names of minor children are to be omitted. Unlike the wholesale ban on electronic access to some records that the California court system has imposed, the federal courts are leaning toward partical publication of case files.

In fact, if we go to the report that Jones based much of her article on (http://www.uscourts.gov/privacyn.htm), we find an excellent summary of the competing positions. The first is the position based on the "assumption that the medium in which case files are stored does not affect the presumption that there is a right of public access". As the report notes, "litigants must expect to abandon a measure of their personal privacy at the courthouse door". The other position "focuses on the relative 'obscurity' of paper case files as compared to electronic files" and advocates of that position worry that the "'expectation of practical obscurity'...will be eroded through the development of electronic case files".

So, although it appears Jones pulls in concerns about private information in court documents in an attempt to incite readers to view G2's actions in a negative light, there are people working hard to implement solutions that maintain the "public is public" policy with regard to court documents without resorting to wholesale sealing of documents.

As a final note, while this makes for a fascinating discussion on the balance between privacy concerns and rights to public access, it doesn't seem to apply to the SCO v. IBM case or G2's actions as I doubt there is any information contained in the sealed documents that constitutes the type of personal information contemplated above.

Summary
At this point in time, we await IBM's and SCO's responses to G2's motion to intervene and their request that sealed documents in the case be reviewed as to whether the "seal" was appropriate. After reading G2's filings, it appears they have hit on several of the guiding cases with regards to the sealing of documents in a civil case (many of which have been covered in this article and to a limited degree in Pamela Jones's article). In addition, they have pulled in some more recent cases that may serve to clarify the issues.

This article has hopefully laid a foundation for us to examine both G2's arguments and IBM's and SCO's forthcoming arguments regarding the sealed records. This foundation includes

• an understanding that there is a presumption that court documents are public records,
• recognition that access is not absolute, but there must be some very compelling reason for a document to be "sealed" (more than just a belief that someone wants to dig up some "dirt" for a headline),
• and there are ways to protect private information without resorting to the sealing of court records in toto.