I first posted about this case about early last month.
In releasing documents electronically pursuant to a public records request, a local government body in New Jersey made a rookie error: using software (presumably Word) to perform redactions in a manner that was easily undone when the requester opened the provided PDF documents using his own device. The documents revealed some settlement discussions between the government body and a local developer who was trying to put up a building in local wetlands, as well as a sleazy effort to avoid disclosure by proceeding ex parte to secure confidentiality from a local judge who was hearing a lawsuit about the development controversy. In response to a motion not served on the counsel for the requester, a known opponent, the judge gave her advance blessings to confidentiality under the Public Records Act.
When the developer discovered the redaction error, the developer rushed into court and persuaded the judge to issue a restraining order barring the requester from disseminating the documents and demanding both return of the documents and identification of everybody to whom the requester had given copies of the documents.
In similar circumstances, some FOIA requesters reflexively cooperate when agencies promptly ask for return of inadvertently released documents, but does the First Amendment authorize courts to order a clawback if the requester refuses?
We helped the requester prepare a motion to dissolve the restraining order, citing such cases as Florida Star v. BJF, Smith v. Daily Mail and Bartnicki v. Vopper, and arguing as well that the injunction was a prior restraint. In addition to the First Amendment grounds the motion argued, based on an extensive affidavit from the requester, that the redactions were improper and, in any event, that the unredacted minutes had already been widely disseminated in the community.
The trial judge was unfazed – she said that because the litigant was before her in litigation already, she could issue a “gag order” preventing the requester, his fellow plaintiffs, and their lawyer from disseminating any of the information disclosed through the unredactions. (The judge did not order identification of everyone to whom the minutes had been disclosed). And this apparently means that the requester cannot even talk about the subject, because, in addition to reaffirming the gag order, she granted the developer’s motion to delete from the public record the affidavit from the requester, on the ground that the motion contained a discussion of the same information that appeared in the redacted minutes.
Last week, we filed a motion for leave to appeal from this injunction. In addition to the arguments made below, we have explained that the power to issue gag orders to prevent litigants and their lawyers from speaking about litigation is limited to situations in which the comments might infect a possible jury verdict, which does not apply to the land use litigation, which is not going to be tried to a jury.
Court Records Also Sealed
But I cannot link to the brief showing the arguments made below (as I formerly did from my blog post), because the clerk’s office has deleted the brief filed below from the Court’s electronic docket because – get this – the judge is reported to have directed that thebrief be deleted from the docket because it, too, supposedly contains “confidential information.” We have not been able to locate any publicly filed order from this judge directing that any brief be taken offline. So our motion for leave to appeal raises a second significant issue – that the judge’s orders violate the First Amendment right of public access to court records. In this regard, we rely on a pair of New Jersey appellate decisions that my Public Citizen colleagues won back in 1995, in Hammock & Hammock v Hoffman LaRoche, as well as in 2008, that set strict standards for limiting public access to judicial records. Even if there was anything in the affidavits and brief worth redacting (which we argue there isn’t) the judge was far too cavalier in ordering the whole brief and affidavits to be taken out of the public records, instead of judge ordering a redaction of anything that was truly confidential.