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Google Report on Compliance With Bank’s Temporary Restraining Order Must Be Unsealed, Appellate Court Rules

April 18, 2011 

Google Report on Compliance With Bank’s Temporary Restraining Order Must Be Unsealed, Appellate Court Rules

Appellate Court Favors Public Access to Court Records

WASHINGTON, D.C. – The public’s long-standing right of public access cannot be compromised by a trick that can be used to keep documents out of the public record, an appellate court has ruled.

Because a document was “lodged” with the court, instead of officially “filed,” a lower court ruled that it wasn’t part of the judicial record and that the media could not view it.

But the 9th U.S. Circuit Court of Appeals reversed the decision last week and ruled that the document be unsealed. The court ruled that “the report in question is a quintessential judicial document” and that the right of access “cannot be [wiped out] by the simple expedient of having documents lodged.”

In the case in which the document was lodged, Public Citizen represented MediaPost Communications, a publisher that requested a report so that it could continue its coverage of the case in its Online Media Daily.

“This decision closes a loophole in the right of public access that the district court’s decision opened,” said Paul Alan Levy, the Public Citizen attorney who represented MediaPost.

The case stems from an error on the part of Rocky Mountain Bank, located in Wilson, Wyo., which in August 2009 mistakenly sent an email with names, addresses, Social Security numbers and loan information of more than 1,000 customers to a Gmail address. Once the mistake had been discovered, the bank then sued Google to identify the owner of the account and to shut down the Gmail account, but gave no notice to the Gmail account owner of the pending motion.

The judge ordered Google to reveal the Gmail user’s identity and to “deactivate” the account. Instead of appealing or seeking reconsideration of the injunction, Google presented a report to the judge summarizing its compliance with the order, after which the judge vacated the order – without ever making the compliance report public.

“Simply because the bank made mistakes does not justify withholding that information from the public,” Levy said.

MediaPost had requested the document (with identifying information redacted), but the U.S. District Court for the Northern District of California would not allow it. Now the case returns to the district court to decide whether and how redact the document before disclosure.

Read the decision and see the briefs filed in the case. !!!

Public Citizen is a national, nonprofit consumer advocacy organization based in Washington, D.C. For more information, please visit www.citizen.org.