Volokh shouldn’t have to ask why because Special Judge Jason Seigars‘ order sealing the case should be publicly available per our state Open Records Act.
But Seigars sealed his order as well as a temporary injunction he granted to Packers Sanitation Services Inc. the same day it filed the lawsuit.
Volokh filed a motion Tuesday to unseal Seigars’ order. His motion is sealed, too, but you can read it on his blog.
In his posting, Volokh raised an important question, “Do we trust judges to make these decisions (including decisions about which speech is libelous and thus should be suppressed) without public scrutiny?”
The answer is no, our state legislators said in 2014. Under an Open Records Act amendment added that year, a judge sealing a case record must issue a public order that shall:
- Identify the facts which the court relied upon in entering its order;
- Make conclusions of law specific enough so that the public is aware of the legal basis for the sealing of the record;
- Utilize the least restrictive means for achieving confidentiality; [and]
- Be narrowly tailored so that only the portions of the record subject to confidentiality are sealed and the remainder of the record is kept open. (51 O.S. § 24A.30)
A judge may seal the court record “only if a compelling privacy interest exists which outweighs the public’s interest in the record,” according to the amendment.
Did a compelling privacy interest outweigh the public’s interest in the record? Was the defendant, Armando Acosta, posting about what would later be reported in a Bloomberg Businessweek article, America’s Worst Graveyard Shift Is Grinding Up Workers, critical of Packers Sanitation Services.
We don’t know because Seigars’ order is sealed in apparent violation of the Open Records Act.
When Seigars was sworn in, he took an oath to uphold Oklahoma’s Constitution and laws. Why didn’t he follow the Open Records Act in this case?
Unfortunately, Seigars isn’t the first judge to apparently ignore the statute. In early 2015, our state Supreme Court justices criticized an Oklahoma County judge for not complying. Special Judge Howard Haralson had sealed – without conducting a hearing or issuing written orders – practically every document, including trial transcripts, in the divorce hearing of oil billionaire Harold Hamm.
“The law allowing a record to be sealed is clear, concise and quite simple,” Justice Steven W. Taylor wrote. “The trial court cannot avoid the Oklahoma Open Records Act by simply relying on the parties’ agreement to seal the record. … All of the statutory requirements … must be strictly followed at the time the records are sealed even if there is no objection to the sealing.” (Reuters America LLC v. Haralson, No. 113,296 (Okla. Jan. 6, 2015) (Taylor, J., concurring ¶ 2) (quoting Okla. Stat. tit. 51, § 24A.30).
Despite that admonition, a Pottawatomie County judge sealed the entire divorce case of country music superstars Blake Shelton and Miranda Lambert in summer 2015. Only after media complaints did Associate District Judge John D. Gardner, who was retiring the same week, make public his protective order.
The former state representative who wrote the 2014 amendment criticized Gardner’s sealing of the case. Aaron Stiles said Gardner broke the law by sealing the entire case rather than narrowly tailoring his order so that only those portions subject to confidentiality would be closed.
“His court ruling is exactly why we passed the law … to prevent that,” Stiles told The Oklahoman. “He stated, ‘The whole reason the record’s being sealed is because you’re an important person.’ And that’s not the standard.”
Now, thanks to a California law professor, maybe Oklahomans will get to know why an entire libel lawsuit was sealed.
Joey Senat, Ph.D.
OSU School of Media & Strategic Communications
Mass Communication Law in Oklahoma
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, its board of directors or the commentator’s employer. Differing interpretations of open government law and policy are welcome.