Doe v. Doe , 823 S.E.2d 583 ( 2018 )

IN THE COURT OF APPEALS OF NORTH CAROLINA
No. COA17-1368
Filed: 18 December 2018
Cumberland County, No. 16-CVS-8021
JOHN DOE, by and through his Guardian ad Litem, et al., Plaintiffs,
v.
JOHN DOE, et al., Defendants.
Appeal by DB North Carolina Holdings, Inc. d/b/a/ The Fayetteville Observer
from orders entered 22 November 2016, 14 December 2016, and 2 August 2017 by
Judge William R. Pittman in Superior Court, Cumberland County. Heard in the
Court of Appeals 22 August 2018.
No brief filed for plaintiffs.
Player McLean, LLP, by James A. McLean, III; and McCoy Wiggins Cleveland
& McLean PLLC, by Richard M. Wiggins; and Beaver, Courie, Sternlicht,
Hearp & Broadfoot, P.A., by H. Gerald Beaver and David T. Courie, Sr., for
defendants-appellees.
Essex Richards, P.A., by Jonathan E. Buchan, Natalie D. Potter, and Caitlin
H. Walton; and by John J. Korzen, for appellant DB North Carolina Holdings,
Inc. d/b/a The Fayetteville Observer.
Stevens Martin Vaughn & Tadych, PLLC, by Hugh Stevens, for amici curiae.
STROUD, Judge.
Appellant DB North Carolina Holdings, Inc. d/b/a/ The Fayetteville Observer
(“Newspaper”) appeals from the trial court’s orders permanently sealing the entire
court file and denying its motion for access. Newspaper contends that the trial court’s
orders sealing this file were unconstitutional under the First Amendment to the
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United States Constitution and Article I, Section 18 of the North Carolina
Constitution because they did not apply available alternatives to sealing the entire
file and this measure was not narrowly tailored. We agree that the orders sealing an
entire court file, even including the date of filing and names of counsel, guardians ad
litem and the trial court, are overbroad. The public, including Newspaper, has a
presumptive right of access to court files under the North Carolina and United States
Constitutions as well as North Carolina’s Public Records Act. The trial court was
correct in concluding there is a compelling public interest in protecting juvenile
plaintiffs, who were victims of sexual abuse, but this interest cannot justify sealing
the entire file permanently; the documents in the file can be redacted to protect the
identities of the juveniles. We vacate the trial court’s sealing orders, reverse the trial
court’s order denying Newspaper’s motion for access, and remand for the trial court
to hold a hearing to consider the proper extent of redaction and sealing as discussed
below and to enter an new order opening the file with these limited redactions.
I. Background
The court file sealed by the trial court involves a lawsuit based upon
“allegations of sexual abuse committed against minors” by one of the defendants. On
22 November 2016, the same day the complaint was filed, the trial court entered a
Temporary Order to Seal the court file entirely.1 On 14 December 2016, the trial
1The Temporary Sealing order was signed and filed on 1 December, 2016, nunc pro tunc to 22
November 2016.
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court approved a settlement of the minor plaintiffs’ claims and entered an Order to
Seal which permanently sealed the file, and the case was voluntarily dismissed. On
3 July 2017, Newspaper filed a motion to intervene and for access to court records
under N.C. Gen. Stat. § 1-72.1, “for the limited purpose of seeking to have [the trial
court] enter an order unsealing the court file in this case and granting [Newspaper]
and the public access to this file.” Because the underlying file is sealed in its entirety,
our background is brief and predominantly based on the undisputed “facts” as set out
in Newspaper’s motion.2 Newspaper’s motion stated:
[Newspaper] is informed and believes that this case
involves civil claims for negligence and has been sealed in
its entirety, apparently from its inception in November,
2016. [Newspaper] has sought access to this file through
requests to the Cumberland County Clerk of Court and has
been informed that the entire case file is sealed by order of
a Superior Court Judge.
At the current time, there are no documents in this
file which are available for public review. . . .
There is no motion for public review in the file
seeking the sealing of the file, no order in the public file
directing that the entire file, or any portion thereof, be
sealed from public view, and no findings of fact or law
available for public review suggesting the basis for initially
sealing the file or for keeping it sealed. The public file does
not reflect whether the file was sealed at the request of the
plaintiff or of the defendant, with the consent of all parties,
over the objection of a party, or sua sponte. The file does
not reflect the names of counsel for plaintiff or defendant.
Movant understands that this sealed civil action
likely involves civil claims that relate to, or parallel,
charges asserted in a criminal action currently pending in
2 We have reviewed the court file in camera, and the Newspaper’s factual allegations are accurate.
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the state trial courts of South Carolina. That criminal case
has been the subject of substantial public interest and
attention over the past nine months. At the outset of that
criminal case, the South Carolina trial court entered an
order on September 19, 2016 (file-stamped October 6, 2016)
prohibiting various trial participants, including the alleged
victims and their family members, from making any
extrajudicial statements about the case. That order, which
also effectively sealed the contents of the court file, was
dissolved by a June 5, 2017 order upon the motion of The
Fayetteville Observer. The court files in the South Carolina
criminal case are now open for public inspection.
For the reasons set forth below, [Newspaper],
pursuant to the First Amendment to the United States
Constitution, the North Carolina Constitution, Article I, §
18, and N.C.G.S. § 7A-109, seeks access to the above-
described court records maintained by the Cumberland
County Clerk of Court. [Newspaper] respectfully asks this
Court to unseal this court file and to direct the Clerk of
Court to promptly make them available to [Newspaper]
and to the public.
On 2 August 2017, the trial court entered an order denying Newspaper’s
motion. Newspaper filed notice of appeal to this Court from the trial court’s December
2016 order sealing the file, any prior sealing orders, and from the order denying its
motion for access.
II. Motion to Dismiss
Defendants filed a motion to partially dismiss Newspaper’s appeal,3 arguing:
The Court of Appeals should both deny [Newspaper]’s
current motion, in toto, and dismiss all of [Newspaper]’s
appeal except as to its statutory motion for access, in that
(1) [Newspaper] was not a specifically aggrieved party
3Plaintiffs John Doe 15, John Doe 16, and John Doe 17, and their respective Guardians ad Litem did
not appeal the trial court’s orders and have not appeared in this appeal.
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concerning these matters, and, therefore, did not have
standing to appeal the same; (2) even if [Newspaper] had
such standing, which is denied, [Newspaper]’s notice of
appeal is untimely and, therefore, this Court is without
jurisdiction to address the same and (3) the Order Denying
Access is quite detailed and specific and it is both
unnecessary and in contravention of the Trial Court’s
Virmani analysis to grant [Newspaper]’s attorneys even
limited access.
Newspaper filed its response to defendants’ motion on 8 February 2018, and this
Court referred the motion to the panel assigned to hear this appeal.
a. Standing
Defendants note that Newspaper did not seek to intervene but only sought
access to the court file under N.C. Gen. Stat. § 1-72.1. Defendants argue that
Newspaper has only a “general interest” in the case, the same as any member of the
general public may have, but is not a “specifically aggrieved” party with standing to
appeal the order sealing the file. Defendants compare this case to In re Duke Energy
Corp., 234 N.C. App. 20, 760 S.E.2d 740 (2014), where “NC WARN, the
self-proclaimed public watchdog group, sought to intervene in [an] investigative
proceeding and ‘assist’ the Utilities Commission in keeping this alleged impropriety
from increasing the energy costs for all North Carolina ratepayers.” Defendants
concede this case is “not directly on point” but argue it is instructive. But In re Duke
Energy Corp. is simply not applicable in this context. First, it addressed a motion to
intervene. Newspaper concedes that it was not seeking to intervene and the trial
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court did not address intervention. In addition, this Court discussed NC WARN’s
status as an “aggrieved party” under N.C. Gen. Stat. § 62-90, which addresses the
right of appeal from a ruling by the North Carolina Utilities Commission. Id. at 36,
760 S.E.2d at 750. Here, Newspaper’s claim to access was filed under N.C. Gen. Stat.
§ 1-72.1, a statute which sets forth the procedure for obtaining access to a sealed court
file.
In Virmani v. Presbyterian Health Services Corp., 350 N.C. 449, 515 S.E.2d 675(1999), the plaintiff physician sued a hospital regarding its suspension of his medical
staff privileges. The Charlotte Observer filed a motion to intervene in the case and
sought access to sealed medical peer review committee records. Id. at 457, 515 S.E.2d
at 682. Regarding the claim for intervention, the North Carolina Supreme Court
concluded that The Charlotte Observer’s interest in the civil case was “only indirect
or contingent” and therefore not subject to intervention as a matter of right under
N.C. R. Civ. P. 24(a) and that the trial court had not erred in denying permissive
intervention under Rule 24. Id. at 460, 515 S.E.2d at 683. The Supreme Court
concluded that “the Observer had alternative means of obtaining a full and timely
review of the issue it sought to raise without being allowed to intervene as a party
and unduly delay the adjudication of the rights of the original parties.” Id. at 462,
515 S.E.2d at 684.
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Soon after Virmani, in 2002, our General Assembly enacted N.C. Gen. Stat. §
1-72.1 which “establish[ed] a civil procedure for hearing and determining claims of
access to documents and to testimony in civil judicial proceedings and shall not be
deemed or construed to limit, expand, change or otherwise preempt any provisions of
the substantive law that define or declare the rights and restrictions with respect to
claims of access.” N.C. Gen. Stat. § 1-72.1(f) (2017). The statute does not require a
person or entity seeking access to a court file or judicial proceeding to be a party to
the case or to have any particularized interest in the case. N.C. Gen. Stat. § 1-72.1(a).
It provides that “[a]ny person asserting a right of access to a civil judicial proceeding
or to a judicial record” may file a motion and that “[t]he motion shall not constitute a
request to intervene under the provisions of Rule 24 of the Rules of Civil Procedure
and shall instead be governed by the procedure set forth in this statute.” Id.(emphasis added).
Newspaper was not required to intervene in the case to seek relief under N.C.
Gen. Stat. 1-72.1 and has standing to appeal the trial court’s orders sealing the case
file. Beaufort Cty. Bd. of Educ. v. Beaufort Cty. Bd. of Comm’rs, 184 N.C. App. 110,
120, 645 S.E.2d 857, 863 (2007) (“[N.C. Gen. Stat. § 1-72.1] plainly and
unambiguously applies to any person asserting a right of access to a civil judicial
proceeding or to a judicial record.” (brackets and quotation marks omitted)).
Defendants’ motion to dismiss based on standing is denied.
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b. Timeliness of Appeal
Defendants argue this Court has no jurisdiction to consider this appeal because
Newspaper did not file its Notice of Appeal of the 14 December 2016 Order and the
“prior orders sealing the matter” until 10 August 2017. Since the notice of appeal
was not filed within 30 days of the entry of the sealing orders, defendants claim it
was untimely. Newspaper responds that it is impossible to appeal from an order in
a sealed file since it had no actual or constructive notice of the order until 2 August
2017; notice of appeal was filed eight days later. Newspaper points out that that
“[t]hese orders were maintained in a sealed fashion in an anonymous case file, with
no record notice to the public of their existence.” Newspaper also notes that “[t]he
sealing of the file in its entirety, keeping secret the names of all parties and even the
names of their counsel of record in the civil action, made it exceedingly difficult for
[Newspaper] to even comply with the requirement of N.C.G.S. § 1-72.1(a) that any
motion for access to a civil judicial proceeding shall be served upon ‘all parties to the
proceeding’ in accordance with Rule 5 of the N.C. Rules of Civil Procedure.”
Newspaper filed its motion for access on 3 July 2017. The trial court heard the
motion on 2 August 2017 and entered an order denying Newspaper’s motion on the
same day. Only then did Newspaper learn that the trial court’s final order sealing
the file had been entered on 14 December 2016, and the trial court’s 2 August 2017
order incorporated by reference and relied in part upon both the Temporary Order to
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Seal entered on 22 November 2016 and the final Order to Seal entered on 14
December 2016—although those orders remained sealed. The trial court specifically
provided, “The findings of fact and conclusions of law contained in its previously
entered orders to seal are adopted and incorporated by reference.” (Emphasis added.)
The trial court also determined that “[t]he public policies found herein, as well as
those incorporated by reference, substantially outweigh the public’s right of access to
the file in this matter.”
Generally, non-parties have no right of appeal from an order. See Bailey v.
State, 353 N.C. 142, 156, 540 S.E.2d 313, 322 (2000) (“A careful reading of Rule 3
reveals that its various subsections afford no avenue of appeal to either entities or
persons who are nonparties to a civil action.”). But N.C. Gen. Stat § 1-72.1 establishes
a procedure which allows non-parties to request access to court files and specifically
grants a right of appeal to the non-party petitioning for access:
The court shall rule on the motion after consideration of
such facts, legal authority, and argument as the movant
and any other party to the action desire to present. The
court shall issue a written ruling on the motion that shall
contain a statement of reasons for the ruling sufficiently
specific to permit appellate review. The order may also
specify any conditions or limitations on the movant’s right
of access that the court determines to be warranted under
the facts and applicable law.
N.C. Gen. Stat. § 1-72.1(c) (emphasis added).
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Here, Newspaper timely filed notice of appeal from the 2 August 2017 order
but did not, and could not have, filed timely notice of appeal from the 14 December
2016 Order to Seal or the 22 November 2016 Temporary Order to Seal, since both
orders were in the sealed file. Newspaper has therefore requested that we issue a
writ of certiorari under NC Rule of Appellate Procedure 21(a) to allow review of the
14 December 2016 order and any “prior orders sealing this matter.”
The writ of certiorari may be issued in appropriate
circumstances by either appellate court to permit review of
the judgments and orders of trial tribunals when the right
to prosecute an appeal has been lost by failure to take
timely action, or when no right of appeal from an
interlocutory order exists, or for review pursuant to
N.C.G.S. § 15A-1422(c)(3) of an order of the trial court
ruling on a motion for appropriate relief.
N.C. R. App. P. 21(a)(1).
Newspaper had a right of appeal under N.C. Gen. Stat. § 1-72.1 and lost that
right by failing to timely appeal the December 2016 Order to Seal and the November
2016 Temporary Order to Seal. But under these unusual circumstances, Newspaper
could not possibly have timely filed a notice of appeal from orders in a sealed file—
which Newspaper’s counsel still have not seen—any sooner than it did, and
Newspaper acted in good faith. If we were not to grant review by certiorari as to the
22 November 2016 and 14 December 2016 orders, we would render the sealed orders
unreviewable, but N.C. Gen. Stat. § 1-72.1 contemplates appellate review of this type
of order. Indeed, it is crucial that appellate review be available for a sealed court
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order. “Without access to judicial opinions, public oversight of the courts, including
the processes and the outcomes they produce, would be impossible.” Doe v. Pub.
Citizen, 749 F.3d 246, 267 (4th Cir. 2014). In our discretion, we therefore allow
defendants’ motion in part and dismiss Newspaper’s appeal from the trial court’s
orders entered 14 December 2016 and 22 November 2016, but we also allow
Newspaper’s motion for certiorari to review both orders. See Anderson v. Hollifield,
345 N.C. 480, 482, 480 S.E.2d 661, 663 (1997) (“Rule 21(a)(1) gives an appellate court
the authority to review the merits of an appeal by certiorari even if the party has
failed to file notice of appeal in a timely manner.”).
III. Right of Access to Court File
On appeal, Newspaper argues that the orders sealing the entire file in this civil
action are unconstitutional because “(1) they do not apply available alternatives to
sealing the entire file, and (2) they are not narrowly tailored to accomplish their
stated purpose.” (Original in all caps.) N.C. Gen. Stat. § 1-72.1 governs the procedure
of this case, but “shall not be deemed or constructed to limit, expand, change or
otherwise preempt any provisions of the substantive law that define or declare the
rights and restrictions with respect to claims of access.” N.C. Gen. Stat. § 1-72.1(f)
a. Standard of Review
Newspaper argues that our standard of review is de novo as its claim is based
on constitutional rights. Defendants contend we must review the trial court’s order
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for an abuse of discretion. Newspaper has asserted a claim under the procedural
statute N.C. Gen. Stat. § 1-72.1, and the substantive bases for the claim are the North
Carolina Constitution, the United States Constitution, and N.C. Gen. Stat. § 7A-109.
“The distinction between the rights afforded by the first amendment and those
afforded by the common law is significant. A first amendment right of access can be
denied only by proof of a compelling governmental interest and proof that the denial
is narrowly tailored to serve that interest.” Baltimore Sun Co. v. Goetz, 886 F.2d 60,
64 (4th Cir. 1989) (citations and quotation marks omitted).4 “In contrast, under the
common law the decision to grant or deny access is left to the sound discretion of the
trial court, a discretion to be exercised in light of the relevant facts and circumstances
of the particular case.” Id. (citations and quotation marks omitted).5
In In re Search Warrants of Cooper, 200 N.C. App. 180, 683 S.E.2d 418 (2009),
this Court applied different standards of review based upon each substantive basis
for the plaintiffs’ claim requesting unsealing of search warrants in a murder
investigation. The court first analyzed the plaintiffs’ claim to access to sealed records
under the Public Records Act for abuse of discretion. Id. at 186, 683 S.E.2d at 423.
4 Although the federal cases cited in this opinion address the First Amendment right of access, we find
these cases to be persuasive authority as applied to the open courts provision of the North Carolina
Constitution. N.C. Const. art. I, § 18. In addition, Newspaper’s claim was based upon both the state
and federal constitutions and they provide essentially the same protection in this context.
5 North Carolina also recognizes a common law right of access, in addition to the constitutional rights
and the statutory right under N.C. Gen. Stat. § 7A-109, but Newspaper’s claims rely primarily upon
its state and federal constitutional rights.
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“Access to public records in North Carolina is governed generally by our Public
Records Act, codified as Chapter 132 of the North Carolina General Statutes.
Chapter 132 provides for liberal access to public records.” Id. “The Public Records
Act permits public access to all public records in an agency’s possession unless either
the agency or the record is specifically exempted from the statute’s mandate.” Id.
(citation and quotation marks omitted). But this Court applied de novo review to the
plaintiffs’ claims under the North Carolina and United States Constitutions,
although the opinion does not expressly identify the standard of review. See id. at
188-91, 683 S.E.2d at 425-26.
The only case which has addressed a claim under N.C. Gen. Stat. § 1-72.1 since
its enactment by the General Assembly in 2002 is Beaufort County Board of
Education v. Beaufort County Board of Commissioners, 184 N.C. App. 110, 115, 645
S.E.2d 857, 860 (2007). Although the procedural posture of that case was different,
the court based its standard of review upon the constitutional claim asserted:
It is well settled that de novo review is ordinarily
appropriate in cases where constitutional rights are
implicated. We review this issue de novo.
Id. at 115, 645 S.E.2d at 860 (citation and quotation marks omitted). Because
Newspaper’s right to access to court records is based upon the United States and
North Carolina Constitutions, Newspaper presented this argument to the trial court,
and the trial court’s orders also addressed the constitutional rights of access, we
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review the trial court’s orders de novo.6 “The word de novo means fresh or anew; for
a second time, and an appeal de novo is an appeal in which the appellate court uses
the trial court’s record but reviews the evidence and law without deference to the trial
court’s rulings.” Parker v. Glosson, 182 N.C. App. 229, 231, 641 S.E.2d 735, 737 (2007)
(citations and quotation marks omitted).
b. Qualified Right of Access to Civil Court Records under Article I, Section
18
We have been unable to find any other case in North Carolina in which the
entire court file, including the court orders sealing the file, has been sealed. This
level of protection from public access is unprecedented in North Carolina and has
occurred in only very few cases throughout the United States. Even in cases dealing
with highly sensitive matters such as national security, only specific portions of files
are sealed or documents are redacted as needed, instead of sealing the entire file.
Litigation about trade secrets regularly is conducted in
public; the district court seals only the secrets (and writes
an opinion omitting secret details); no one would dream of
saying that every dispute about trade secrets must be
litigated in private. Even disputes about claims of national
security are litigated in the open. 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
6Defendants note in their brief that although Newspaper’s motion relied on several theories,
Newspaper “proceeded at the hearing ONLY on its constitutional claims.”
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discussed in detail the documents for which protection was
sought.
Union Oil Co. of California v. Leavell, 220 F.3d 562, 567 (7th Cir. 2000).
North Carolina’s Supreme Court set forth the qualified right of access to court
files and proceedings under the North Carolina Constitution in Virmani, 350 N.C.
449, 515 S.E.2d 675. The trial court entered an order sealing various documents in
the file and closing the courtroom proceedings, based upon N.C. Gen. Stat. § 131E-
95, which protects the confidentiality of “proceedings of a medical review committee,
the records and materials it produces and the materials it considers[.]” Id. at 463,
515 S.E.2d 685 (quoting N.C. Gen. Stat. § 131E-95(b) (1997)). The Charlotte Observer
filed a motion for access to the documents and to open the courtroom proceedings; the
trial court denied the motion and the Observer appealed. Id. at 456, 515 S.E.2d at
681.
The North Carolina Supreme Court first determined that the Observer had no
“North Carolina common law right of public access” to the information or proceedings
because that right was supplanted by the statute specifically governing medical
review committee records and proceedings, N.C. Gen. Stat. § 131E-95. Id. at 473, 515
S.E.2d at 692. The Court then addressed the Observer’s claim under the North
Carolina Constitution and held that the public has a qualified right of access to court
proceedings under Article I, Section 18 of the North Carolina Constitution:
We now hold that the open courts provision of Article
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I, Section 18 of the North Carolina Constitution guarantees
a qualified constitutional right on the part of the public to
attend civil court proceedings. . . .
The qualified public right of access to civil court
proceedings guaranteed by Article I, Section 18 is not
absolute and is subject to reasonable limitations imposed
in the interest of the fair administration of justice or for
other compelling public purposes. Thus, although the
public has a qualified right of access to civil court
proceedings and records, the trial court may limit this right
when there is a compelling countervailing public interest
and closure of the court proceedings or sealing of
documents is required to protect such countervailing public
interest. In performing this analysis, the trial court must
consider alternatives to closure. Unless such an overriding
interest exists, the civil court proceedings and records will
be open to the public. Where the trial court closes
proceedings or seals records and documents, it must make
findings of fact which are specific enough to allow appellate
review to determine whether the proceedings or records
were required to be open to the public by virtue of the
constitutional presumption of access.
Id. at 476-77, 515 S.E.2d 693 (citations omitted).
The Supreme Court affirmed the trial court’s order in Virmani, which had
sealed only the confidential portions of the records as provided by N.C. Gen. Stat.
§131E-95 and noted that in the factual situation of Virmani, the General Assembly
had “determined that this right of access is outweighed by the compelling
countervailing governmental interest in protecting the confidentiality of the medical
peer review process.” Id. at 477, 515 S.E.2d 693 (“The General Assembly has
recognized the public’s compelling interest in such confidentiality by enacting
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N.C.G.S. § 131E-95 and making the confidentiality of medical peer review
investigations part of our state’s public policy.”).
Therefore, under Virmani, Newspaper has a qualified right of access to the
court file, as the trial court’s orders recognized, but this right may be limited “when
there is a compelling countervailing public interest and closure of the court
proceedings or sealing of documents is required to protect such countervailing public
interest.” Id. at 476, 515 S.E.2d 693. But the trial court is required to “consider
alternatives to closure. Unless such an overriding interest exists, the civil court
proceedings and records will be open to the public.” Id. The trial court is also required
to “make findings of fact which are specific enough to allow appellate review to
determine whether the proceedings or records were required to be open to the public
by virtue of the constitutional presumption of access.” Id. at 476-77, 515 S.E.2d 693.
IV. Sealing Orders
a. Procedural Background
The trial court’s sealing orders were entered based upon motions from both
plaintiffs and defendants. Since the entire file and even the sealing order we are
reviewing were sealed, we first note we cannot analyze the trial court’s orders on
appeal and explain the legal basis for our ruling without some references to dates,
motions filed, and the legal bases alleged by the parties for sealing the file, and these
are details from the sealed file. We also cannot analyze the legal conclusions of the
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orders sealing the file—which were also sealed—without stating what those
conclusions are. Since we conclude that the orders sealing the file must be reversed
and the matter remanded for further action, we will include the procedural facts and
dates as necessary and the conclusions of law and legal rationale as stated by the
trial court’s order, but we will not include any factual allegations from the complaint
not already revealed in the Newspaper’s motion or the trial court’s 2 August 2017
order.
The initial complaint was filed by one of the minor plaintiffs on 22 November
2016. At the same time, plaintiff filed a motion for a temporary restraining order, a
motion for expedited discovery, and a motion for an order sealing the file. Plaintiff
requested that all filings and documents be under seal or maintained as confidential
pending clarification by the court in South Carolina of the intended scope of its order
prohibiting extrajudicial statements and release of documents (“South Carolina gag
order”).7
On the same day, the trial court entered a Temporary Order to Seal sealing
the file and set an additional hearing to take place no later than 14 December 2016.
Defendants also filed a Motion to Seal, and their motion was based upon the South
7Newspaper’s motion described the South Carolina gag order: “At the outset of that criminal case, the
South Carolina trial court entered an order on September 19, 2016 (file-stamped October 6, 2016)
prohibiting various trial participants, including the alleged victims and their family members, from
making any extrajudicial statements about the case. That order, which also effectively sealed the
contents of the court file, was dissolved by a June 5, 2017 order upon the motion of The Fayetteville
Observer.”
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Carolina gag order and the need to protect the identities of the minor plaintiffs but
also stated the additional concerns of protecting defendants whose conduct was
“merely passive” and preventing injury to the reputations of various persons and
entities. The trial court held another hearing on the motions to seal on 14 December
2016 and entered the Order to Seal. Also on 14 December 2016, the trial court heard
the plaintiffs’ Motion for Approval of Settlement for the Benefit of Minors and
Dismissal and entered an order approving the settlement.
b. 2016 Sealing Orders
In both the 22 November and 14 December 2016 sealing orders, the trial court
noted there is a qualified public right of access to civil court proceedings guaranteed
by Article I, Section 18 of the North Carolina Constitution, but the trial court noted
this right is not absolute and is subject to reasonable limitations in the interest of the
fair administration of justice or for other compelling public purposes. The trial court
then made findings of fact regarding the complaint, noting that the claims involved
sexual abuse of minors and there is a strong and compelling public interest in
protecting the identity of the minor plaintiffs. Besides protection of the identity of
the minor plaintiffs, the trial court noted the pending criminal prosecution in South
Carolina. The trial court found that one of the defendants here, also the defendant
in the criminal prosecution in South Carolina, (“criminal defendant”) has a right to a
fair trial by an impartial jury, free from the influence of prejudicial pre-trial publicity,
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under the North and South Carolina Constitutions and the United States
Constitution. The trial court found there is a strong and compelling countervailing
public interest which outweighs the public’s interest in access to the court file based
upon the defendant’s right to a fair trial, due to the proximity of Cumberland County
to the South Carolina county in which the criminal prosecution was pending and the
shared public policy of both states to provide a fair trial. The court noted that it had
considered alternatives to sealing the court files and found no suitable alternative to
sealing the entire proceedings and court file. The orders decreed that the entire court
file, including any future filings, be immediately sealed and kept confidential and
that any court proceedings including hearings, depositions, recordings, or transcripts
shall be “extremely confidential” and kept under seal. The orders directed that the
case be cataloged with pseudonyms for all parties and that the docket entries protect
the identities of the parties pending “additional guidance” from the trial court.8
We note that the trial court’s November 2016 and December 2016 orders did
not make any finding or conclusion based upon the defendants’ alleged interest in
protecting the defendants whose conduct was “merely passive” or preventing injury
8The substantive provisions of the 22 November 2016 Temporary Order to Seal and the 14 December
2016 Order to Seal are the same; in fact, they are nearly identical other than the recitation of the
procedural posture of the case in the first paragraph of each order. We address the final December
2016 order specifically, but the same analysis would apply to the 22 November 2016 order. We would
not address the Temporary Order to Seal at all, since it was superseded by the December order, but
we address it because the trial court specifically incorporated it by reference into the Order denying
Newspaper’s motion for access.
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to the reputations of various other persons and entities. The trial court relied only
upon (1) the public interest in protecting the identity of minor victims of sexual abuse,
and (2) the public interest that the criminal defendant receive a fair trial free from
unduly prejudicial pre-trial publicity.
V. Analysis
a. August 2017 Order denying Motion for Access
The trial court’s order denying Newspaper’s motion for “access to civil judicial
proceedings and records previously placed under seal” made basic procedural findings
and then, based upon the sealed records, briefs, and arguments, made these findings:
1. The entire file of this action was sealed by order
of the Court on December 14, 2016.
2. In its order and in prior orders sealing the
matter, the Court made findings of fact and conclusions of
law which became part of the sealed file.
3. The matter was voluntarily dismissed upon
settlements with the minor plaintiffs which were approved
by the Court.
4. This case involves allegations of sexual abuse
committed against minors.
5. The identifying characteristics of the minor
plaintiffs are inextricably interwoven throughout the
pleadings and ancillary documents, including the Court-
approved settlements.
6 Identifying characteristics of innocent third
parties are inextricably interwoven throughout the
pleadings and ancillary documents, including the Court
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approved settlements.
7. The Court has carefully considered whether there
may be suitable alternatives to sealing this matter, and can
find none.
The court ultimately denied Newspaper’s motion for access to the file and concluded
as a matter of law:
1. The findings of fact and conclusions of law
contained in its previously entered orders to seal are
adopted and incorporated by reference.
2. Unsealing these proceedings presents a
substantial and foreseeable risk that the identities of the
minor plaintiffs and innocent third parties will become
known.
3. Unsealing these proceedings presents a
substantial and foreseeable risk that the minor plaintiffs
and innocent third parties will be subject to further harm
including suffering, embarrassment, emotional distress
and psychological trauma.
4. The protection of victims of sexual abuse is a
compelling State interest.
5. The protection of juveniles is a compelling State
interest.
6. The shielding of victims, particularly juvenile
victims, from the trauma and embarrassment of public
scrutiny is a compelling State interest.
7. The protection of innocent third parties from the
trauma and embarrassment of public scrutiny is a
compelling State interest.
8. The protection of innocent third parties from
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significant economic damage is a compelling State interest.
9. The encouragement of victims of sexual abuse to
seek help from the Court is a compelling State interest.
10. The disclosure of the sealed material would be
harmful to each of the above compelling State interests.
11. The disclosure of the sealed material would
compound the harm already suffered by the minor
plaintiffs.
12. This State’s public policy encouraging
settlement of civil disputes would be harmed by disclosure
of the sealed material.
13. There are no suitable alternatives to sealing the
matter.
14. The fragile character and unique rights
essential to the recovery of minor victims of sexual abuse
substantially outweigh the public’s right to access the file
in this matter.
15. The public polices found herein, as well as those
incorporated by reference, substantially outweigh the
public’s right to access to the file in this matter.
16. The limitation of the public’s right to court
proceedings and records is necessary to protect the
countervailing public interests in this matter and to
prevent injustice.
The trial court explicitly based the August 2017 order upon two compelling
State interests: (1) the public interest in protecting the identity of minor victims of
sexual abuse, and (2) “[t]he protection of innocent third parties from trauma and
embarrassment of public scrutiny” and “significant economic damage.” Only through
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Opinion of the Court
incorporating by reference the 2016 orders, the 2017 order also based upon the public
interest that the criminal defendant receive a fair trial free from prejudicial pre-trial
publicity.
We therefore must consider whether the three stated “compelling State
interests” are sufficient to overcome the Newspaper’s right under the North Carolina
and United States Constitutions to access the court records sealed by the two orders.
In addition, we will consider each type of document and information in the file which
must be sealed to accomplish protection of the particular state interest. See Doe v.
Pub. Citizen, 749 F.3d at 266 (“When presented with a sealing request, our right-of-
access jurisprudence requires that a district court first determine the source of the
right of access with respect to each document, because only then can it accurately
weigh the competing interests at stake.” (citation and quotation marks omitted)).
b. Protection of juvenile plaintiffs’ identities
The trial court made several conclusions regarding the need for protection of
the juvenile plaintiffs, including, “The fragile character and unique rights essential
to the recovery of minor victims of sexual abuse substantially outweigh the public’s
right to access the file in this matter.” Certainly, the protection of the identities of
juvenile victims of sexual abuse is a well-established compelling state interest, and
North Carolina law specifically protects the identities of juvenile victims of sexual
abuse in many situations. Even N.C. Gen. Stat. § 1-72-1 specifically excludes
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“juvenile proceedings or court records of juvenile proceedings conducted pursuant to
Chapters 7A, 7B, 90, or any other Chapter of the General Statutes dealing with
juvenile proceedings.” N.C. Gen. Stat. § 1-72.1(f). Newspaper, defendants, and amici
all agree that the identities of the juvenile plaintiffs should be protected, but the issue
here is whether sealing the entire file is necessary to protect the identities of the
juveniles.
The General Assembly has given guidance on how to protect juvenile victims
of abuse. At the trial court level, the juvenile hearings may be closed under N.C. Gen.
Stat. § 7B-801.9 N.C. Gen. Stat. § 7B-302 specifically addresses the confidentiality of
records in juvenile matters. In appeals of juvenile proceedings under Chapter 7B to
this Court, the identity of minors is protected by redaction of names, using
pseudonyms or initials, and redaction of specific identifying information in any public
filings and in the opinions issued by our appellate courts.10 In documents related to
9 Before closing a hearing to the public in an abuse, neglect, or dependency proceeding, the trial court
must consider “the circumstances of the case, including, but not limited to, the following factors:
(1) The nature of the allegations against the juvenile’s parent, guardian, custodian or caretaker;
(2) The age and maturity of the juvenile;
(3) The benefit to the juvenile of confidentiality;
(4) The benefit to the juvenile of an open hearing; and
(5) The extent to which the confidentiality afforded the juvenile’s record pursuant to G.S. 132-1.4(l)
and G.S. 7B-2901 will be compromised by an open hearing.
(b) No hearing or part of a hearing shall be closed by the court if the juvenile requests that it remain
open.” N.C. Gen. Stat. § 7B-801 (2017).
10 Rule 3.1 of the North Carolina Rules of Appellate Procedure provides that in appeals arising from
“termination of parental rights and issues of juvenile dependency or juvenile abuse and/or neglect,”
“the identity of involved persons under the age of eighteen at the time of the proceedings in the trial
division (covered juveniles) shall be referenced only by the use of initials or pseudonyms in briefs,
petitions, and all other filings, and shall be similarly redacted from all documents, exhibits,
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criminal proceedings, protecting the identities of minor victims of sexual abuse in
documents is normally accomplished by redacting the names and other specific
identifying information of the minors and use of pseudonyms. In criminal trials, the
trial court may use methods such as having a child victim testify remotely and
appearing before the court by closed circuit television monitor to protect the child
from trauma from being in the courtroom with the defendant, but before using this
procedure, the trial court must determine that the “child witness would suffer serious
emotional distress, not by the open forum in general, but by testifying in the
defendant’s presence.” N.C. Gen. Stat. § 15A-1225.1(b)(1) (2017); see also State v.
Jackson, 216 N.C. App. 238, 241, 717 S.E.2d 35, 38 (2011) (“One policy area that often
arises in the constitutional context is the protection of youth by using witness
‘shielding’ procedures to balance the need for child sex crime victims’ testimony
against the risk of engendering further emotional distress. The Supreme Court has
deemed the interest in safeguarding child abuse victims from further trauma and
embarrassment to be a compelling one that, depending on the necessities of the case,
may outweigh a defendant’s right to face his accusers in court.” (citation omitted)).
appendixes, or arguments submitted with such filings. If the parties desire to use pseudonyms, they
shall stipulate in the record on appeal to the pseudonym to be used for each covered juvenile. Courts
of the appellate division are not bound by the stipulation, and case captions will utilize initials.
Further, the addresses and social security numbers of all covered juveniles shall be excluded from all
filings and documents, exhibits, appendixes, and arguments. In cases subject to this rule, the first
document filed in the appellate courts and the record on appeal shall contain the notice required by
Rule 9(a).” N.C. R. App. P. 3.1.
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But the trial court’s sealing orders go far beyond the usual statutory
protections granted to juvenile victims of sexual abuse in juvenile or criminal
proceedings. The interest in protecting the juvenile victims in those cases is exactly
the same as in this case, but our General Assembly has balanced that interest with
the need for public access to court records and proceedings and has established the
extent of protection to be granted.
Defendants argue on appeal that redaction of the documents and use of
pseudonyms will not protect the juveniles “from the psychological harm of having
their very personal allegations, whether or not attributed to them, BLASTED into
the public domain[,]” because Newspaper “is a news organization” whose “business
model is to collect news and disseminate it” for a profit and it is simply seeking
“salacious allegations” for this purpose.11 There is no doubt that having facts of their
civil cases reported in the media may be upsetting to the juvenile plaintiffs, but we
still cannot distinguish their situation from those of the many juvenile victims of
sexual abuse in North Carolina who are involved in criminal or juvenile proceedings
arising from abuse. Their identities are protected, but the identities of their abusers
and facts of the allegations are not. And we also note it is defendants—including the
criminal defendant who allegedly sexually abused the juvenile plaintiffs—making
11 Defendants later note their intent is not “to denigrate [Newspaper] or its business practices[.]”
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Opinion of the Court
this strident plea to protect the juvenile plaintiffs; plaintiffs did not appear or file a
brief in this appeal.
We hold that sealing of the entire file, even including names of attorneys,
names of defendants, and sealing orders, cannot be justified by the interest in
protecting the juvenile plaintiffs. The trial court should—and did—use pseudonyms
for the juvenile plaintiffs, and on remand should redact specific identifying
information any documents which include this information. But many documents in
the file do not include the juvenile plaintiff’s names or any other identifying
information, so sealing of those documents cannot be justified by this interest.
c. Protection of criminal defendant’s right to a fair trial
The trial court’s order denying Newspaper’s access also relied upon protection
of a criminal defendant’s right to a fair trial free of undue pre-trial publicity, at least
indirectly, since this interest was only included by incorporating the prior sealing
orders. In a general sense, this is also a well-recognized constitutional interest. See
State v. Jerrett, 309 N.C. 239, 251, 307 S.E.2d 339, 345 (1983) (“In Sheppard v.
Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L. Ed. 2d 600 (1966), the United States
Supreme Court held that due process mandates that criminal defendants receive a
trial by an impartial jury free from outside influences. The Court also held that where
there is a reasonable likelihood that prejudicial pretrial publicity will prevent a fair
trial, the trial court should remove the case to another county not so permeated with
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publicity. In State v. Boykin, 291 N.C. 264, 229 S.E.2d 914 (1976), we adopted this
test and held that it applied not only to cases involving pretrial publicity by the
media, but also to cases where the prejudice alleged is attributable to word-of-mouth
publicity.” (quotation marks omitted)). But the cases addressing the right to fair trial
arise from orders entered in the actual criminal prosecution, such as the motion for
change of venue in Jerrett. Id. We cannot find any case which has addressed sealing
of a civil court file in one state based upon a pending criminal prosecution in another
state.
Although defendants’ brief stresses the need to protect the identities of the
juvenile plaintiffs, their brief makes no mention of any compelling interest in
protecting the criminal defendant’s right to a fair trial in South Carolina and cites no
case to support this right. And unlike Newspaper, defendants had access to the 2016
sealing orders which noted this interest, but they did not defend it on appeal. The
record also indicates that although the South Carolina court had entered a “gag
order” in the criminal prosecution, that order was later dissolved.12 The trial court
made no findings of fact regarding how this civil case in North Carolina would create
“undue pretrial publicity” in the South Carolina criminal matter other than
geographic proximity. Normally, the South Carolina court handling the criminal
12 Plaintiff’s Motion for Entry of Confidentiality and Protective Order was intended primarily to
comply with the South Carolina gag order in the criminal prosecution, as they did not want to interfere
with the prosecution, but they reserved the right to move to unseal the file after the prosecution
concluded.
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prosecution would be in the best position to address this issue. We also recognize
that some of this information is likely already a matter of public record in the South
Carolina criminal prosecution or has been publicly disclosed by other persons not
parties to this case. If the information has already been disclosed, there is no valid
justification for additional protection. And even if on remand defendants can
demonstrate a compelling need to continue to seal certain information in this case to
protect the criminal defendant’s rights in South Carolina, protecting the criminal
defendant’s right to a fair trial cannot justify completely and permanently sealing an
entire case file. Even if some level of protection is needed during investigation or
while the case is pending, once the criminal prosecution has concluded, this interest
no longer exists. See Cooper, 200 N.C. App. at 187-88, 683 S.E.2d at 424 (“The trial
court found that the release of information contained in the search warrants and
attendant papers would undermine the ongoing homicide investigation and the
potential success of it. In the sealing order, the trial court found that the sealing for
a limited time period was necessary to ensure the interests of maintaining the State’s
right to prosecute a defendant, of protecting a defendant’s right to a fair trial, and
preserving the integrity of an ongoing or future investigation.” (emphasis added)).
The trial court erred to the extent it permanently sealed any portion of the file based
only upon a need to protect the right of the criminal defendant in a South Carolina
criminal proceeding.
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On remand, the trial court shall determine the status of the South Carolina
criminal prosecution; if it is still pending, and the criminal defendant claims any need
for consideration of this interest, the trial court may consider if there is still any need
for measures to protect the criminal defendant’s right to a fair trial. If the trial court
determines that any portion of the file must be sealed or redacted for the protection
of the criminal defendant’s right to a fair trial, the trial court shall also address in its
order when and how those portions of the file will be unsealed. But once the
prosecution has concluded, a defendant’s interest in a fair trial no longer needs
protection.
d. Protection of innocent third parties from embarrassment or economic
loss
The trial court’s order denying Newspaper’s motion is also based upon these
conclusions:
7. The protection of innocent third parties from the
trauma and embarrassment of public scrutiny is a
compelling State interest.
8. The protection of innocent third parties from
significant economic damage is a compelling State interest.
We note that the trial court did not base the November or December 2016 orders
sealing the file on this “third party” interest, but the order denying Newspaper’s
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motion relies in part on this interest.13 Unlike the well-established interests in
protecting the identities of juvenile victims of sexual abuse and in protecting a
criminal defendant’s right to a fair trial, an interest in protecting third parties from
“trauma and embarrassment” or “economic damage” has not been recognized as a
compelling state interest outweighing the constitutional right of public access to the
records of our courts. We have been unable to find any North Carolina case
recognizing a compelling state interest in protection of “innocent third parties” from
embarrassment, economic loss, or trauma based solely upon disclosure of
embarrassing information such as the allegations in this case.14 The Fourth Circuit
Court of Appeals has addressed this type of interest and found no cases which
recognized “reputational harm to be a compelling interest sufficient to defeat the
public’s First Amendment right of access[:]”
A corporation very well may desire that the
allegations lodged against it in the course of litigation be
kept from public view to protect its corporate image, but
the First Amendment right of access does not yield to such
an interest. The interests that courts have found
sufficiently compelling to justify closure under the First
Amendment include a defendant’s right to a fair trial
13 We have not examined whether the trial court erred by basing its denial of Newspaper’s motion to
unseal in part on a ground that was not part of the orders sealing the file initially. Newspaper was
unable to address this issue on appeal because the sealing orders were sealed and it could not have
discovered this potential issue. We express no opinion on whether the trial court erred in its order
denying access by relying upon an interest which was not part of the basis for the sealing orders.
14 We recognize that protection of third parties may be a factor in sealing portions of court files or
proceedings in cases involving confidential information, such as medical information protected by
various state and federal statutes. We are addressing only “trauma” or “economic loss” of third parties
which may arise from disclosure of “embarrassing” information in a court proceeding which is not
protected by any specific statutes.
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before an impartial jury, protecting the privacy rights of
trial participants such as victims or witnesses, and risks to
national security. Adjudicating claims that carry the
potential for embarrassing or injurious revelations about a
corporation's image, by contrast, are part of the day-to-day
operations of federal courts. But whether in the context of
products liability claims, securities litigation, employment
matters, or consumer fraud cases, the public and press
enjoy a presumptive right of access to civil proceedings and
documents filed therein, notwithstanding the negative
publicity those documents may shower upon a company. A
corporation may possess a strong interest in preserving the
confidentiality of its proprietary and trade-secret
information, which in turn may justify partial sealing of
court records. We are unaware, however, of any case in
which a court has found a company's bare allegation of
reputational harm to be a compelling interest sufficient to
defeat the public’s First Amendment right of access.
Conversely, every case we have located has reached the
opposite result under the less demanding common-law
standard. See, e.g., Procter & Gamble Co. v. Bankers Trust
Co., 78 F.3d 219, 225 (6th Cir.1996) (“commercial self-
interest” does not to qualify as a legitimate ground for
keeping documents under seal); Republic of Philippines v.
Westinghouse Elec. Corp., 949 F.2d 653, 663 (3d Cir.1991)
(harm to a “company’s public image” alone cannot rebut the
common-law presumption of access); Cent. Nat’l Bank of
Mattoon v. U.S. Dep't of Treasury, 912 F.2d 897, 900 (7th
Cir.1990) (information that “may impair [a corporation’s]
standing with its customers” insufficient to justify closure);
Littlejohn, 851 F.2d at 685 (a corporation’s “desire to
preserve corporate reputation” is insufficient overcome
common-law right of access); Wilson v. Am. Motors Corp.,
759 F.2d 1568, 1570–71 (11th Cir.1985) (per curiam)
(“harm [to] the company’s reputation” is insufficient to
outweigh common-law right of access).
Doe v. Pub. Citizen, 749 F.3d at 269-70 (citations omitted).
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“Adjudicating claims that carry the potential for embarrassing or injurious
revelations about” parties, witnesses, or “a corporation’s image” is “part of the day-
to-day operations of” the North Carolina courts as well. Id. at 269. We understand
why the corporate defendants, individual defendants, and others who are not parties
to the lawsuit would be embarrassed by some of the factual allegations of the
plaintiffs’ complaint. We also recognize that defendants did not have, and will not
have, any opportunity to refute those allegations in the court proceeding itself, since
the case has been resolved. But their situation is no different than that of the parties
or third parties in the cases noted by the Fourth Circuit Court of Appeals in Doe v.
Public Citizen. Id. at 269-70. The “public and press enjoy a presumptive right of
access to civil proceedings and documents filed therein, notwithstanding the negative
publicity those documents may shower upon a company[]” or individuals associated
with a criminal defendant. Id. at 269. Thus, the trial court erred to the extent it
relied upon the interest of protection of the defendants or innocent third parties from
embarrassment, trauma, or economic loss in sealing any portion of the court file.
VI. Documents or Information Subject to Sealing
a. Categories of Information in Court File
Since we have determined that the interest in protecting the identities of the
juvenile plaintiffs justifies some level of protection of information in the court file,
and the right of the criminal defendant to a fair trial may justify some temporary
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level of protection, we must now consider the particular information or documents
subject to sealing or redaction. We begin with the presumptive right of access to civil
proceedings and documents filed therein. N.C. Const. art. I, § 18. In the North
Carolina cases addressing sealing of records, the cases all deal with certain types of
records in a court file, such as search warrants, Cooper, 200 N.C. App. 180, 683 S.E.2d
418; or medical peer review records, Virmani, 350 N.C. 449, 515 S.E.2d 675; none
have addressed sealing an entire file. We will follow the framework set out by the
Fourth Circuit Court of Appeals in Doe v. Public Citizen. There, the court noted the
“categories of documents” entirely sealed by the District Court’s order on appeal and
addressed each one:
(1) the pleadings and attachments thereto; (2) the motions,
related briefing, and exhibits supporting (i) Company Doe’s
motion for a preliminary injunction, (ii) the Commission’s
motion to dismiss, (iii) Company Doe’s motion to amend its
complaint, and (iv) the parties’ cross-motions for summary
judgment; and (3) the amended pleadings as well as
numerous other residual matters. None of these sealed
documents appear on the public docket. Further, in
addition to these materials, the district court released its
memorandum opinion on the public docket with redactions
to virtually all of the facts, the court’s analysis, and the
evidence supporting its decision.
Doe v. Pub. Citizen, 749 F.3d at 266-67.
Here, the documents in the file include: summonses for each defendant; Civil
Action Coversheets; Complaint and Motion for Immediate Injunctive Relief;
Amended Complaint and Motion for Immediate Injunctive Relief; Plaintiff’s Motion
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for Expedited Discovery; Notice of hearing for injunctive relief and expedited
discovery; Plaintiff’s Motion for Entry of Confidentiality and Protective Order;
Defendants’ Motion to Seal; Applications and Orders for Guardians Ad Litem for each
juvenile plaintiff; an affidavit; the Temporary Order to Seal dated 1 December 2016;
the Order to Seal dated 14 December 2016; the AOC Civil File Folder marked 16 CVS
8021; and CD recordings of court proceedings from 22 November 2016 and 14
December 2016. We will address the extent of protection needed for each type of
document or information separately.
i. Complaints and Motions
The complaint and amended complaint include the most factual allegations,
including the identities of the juvenile plaintiffs and information which could make
them identifiable. As we have discussed, these documents can be redacted to protect
the identities of the juvenile plaintiffs and to remove any specific identifying
information.
We note that the trial court determined that “[t]he identifying characteristics
of the minor plaintiffs are inextricably interwoven throughout the pleadings and
ancillary documents, including the Court-approved settlements[,]” and that
“[i]dentifying characteristics of innocent third parties are inextricably interwoven
throughout the pleadings and ancillary documents, including the Court approved
settlements.” We agree that “identifying characteristics” of “innocent third parties”
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are “interwoven” throughout the pleadings and other documents, but as we have
determined, any interest in protection of third parties does not outweigh the
presumptive interest of the public in access to court files. And the “identifying
characteristics” of the juvenile plaintiffs as described in the documents can be
redacted, just as is routinely done in juvenile cases and criminal prosecutions. We
agree redaction would be more difficult if the trial court were trying to protect both
the identities of the minor plaintiffs and to prevent “embarrassment” or “economic
damage” to the defendants and multiple third parties, but it is much easier to redact
the documents without regard to the defendants or third parties. For example, the
affidavit dated 22 November 2016 addresses actions of defendants and third parties
but does not compromise the identity of the juvenile plaintiffs, so there is no
compelling public interest to justify sealing the affidavit.
Unless on remand the trial court identifies a compelling need for redaction of
any other information based upon protecting the criminal defendant’s right to a fair
trial and makes findings of fact supporting that need, the complaints should not be
sealed. On remand, the trial court shall redact from all of the documents in the court
file the names of the juvenile plaintiffs and any other specific identifying information
such as physical descriptions, ages, addresses, or names of immediate family
members. The pseudonyms used for the juvenile plaintiffs in the case caption shall
remain. And, as all parties acknowledged during oral argument, there is no reason
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in this case to seal the names of counsel, the guardians ad litem, or the trial court;
this information poses no risk of revealing the juvenile plaintiffs’ identities or
compromising the criminal defendant’s right to a fair trial.
The Applications for Appointment of Guardians ad Litem do not include any
factual allegations which could justify sealing. The names of the juvenile plaintiffs
should be redacted from each application, but the applications should not be sealed.
The Motion for Entry of Confidentiality and Protective Order filed by plaintiffs and
the Motion to Seal filed by defendants do not include any information which would
compromise the identities of the juvenile plaintiffs or even the criminal defendant’s
right to a fair trial. They include names of the defendants, but we have determined
that the names of the defendants should not be sealed. These Motions should not be
sealed.
ii. Court Orders
The file includes orders appointing Guardians ad Litem for each juvenile
plaintiff, the Trial Court’s Temporary Order to seal, and the Order to Seal. We have
been unable to find any other North Carolina case in which a court has sealed its own
sealing orders, but the Fourth Circuit Court of appeals addressed a District Court’s
order ruling on a summary judgment motion and held that the “First Amendment
right of access extends” to judicial orders:
The public has an interest in learning not only the evidence
and records filed in connection with summary judgment
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Opinion of the Court
proceedings but also the district court’s decision ruling on
a summary judgment motion and the grounds supporting
its decision. Without access to judicial opinions, public
oversight of the courts, including the processes and the
outcomes they produce, would be impossible. See Cox
Broad. Corp. v. Cohn, 420 U.S. 469, 492, 95 S.Ct. 1029, 43
L. Ed. 2d 328 (1975) (“[O]fficial records and documents
open to the public are the basic data of governmental
operations.”); Mueller v. Raemisch, 740 F.3d 1128, 1135–36
(7th Cir.2014) (“Secrecy makes it difficult for the public
(including the bar) to understand the grounds and
motivations of a decision, why the case was brought (and
fought), and what exactly was at stake in it.”); United
States v. Mentzos, 462 F.3d 830, 843 n. 4 (8th Cir.2006)
(denying motion to file opinion under seal because
“decisions of the court are a matter of public record”);
Union Oil Co. of Cal. v. Leavell, 220 F.3d 562, 568 (7th
Cir.2000) (“[I]t should go without saying that the judge’s
opinions and orders belong in the public domain.”); United
States v. Amodeo, 71 F.3d 1044, 1048 (2d Cir.1995)
(observing that public monitoring of the courts “is not
possible without access to ... documents that are used in
the performance of Article III functions”).
Doe v. Pub. Citizen, 749 F.3d at 267.
Although this Court is not bound by the opinions of the Fourth Circuit or other
federal courts, we agree that “it should go without saying that the judge’s opinions
and orders belong in the public domain.” Union Oil, 220 F.3d at 568. In addition, we
have reviewed the Temporary Sealing Order and Sealing Order, and neither includes
the juvenile plaintiffs’ names or any specific identifying information. The orders
include the names of the guardians ad litem and defendants in the case caption and
the trial judge issuing the orders, but sealing of these names cannot be justified by
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any compelling public interest. The Orders appointing guardians ad litem include
the names of juveniles, but those can easily be redacted. The trial court erred in
sealing its own orders. On remand, all orders shall be unsealed, and the orders
Appointing guardians ad litem redacted to protect the identities of the juveniles.
iii. Minor Settlement and Confidentiality Agreement
We will address the Confidential Settlement Agreement separately, since the
interests involved as to the Agreement are different and mere redaction of the names
and identifying information of the juvenile plaintiffs may not be sufficient. North
Carolina courts recognize that settlement of litigation is an important public interest:
Our judicial system has a strong preference for settlement
over litigation. Courts are generally indifferent to the
nature of the parties’ agreement; why or how the case is
settled is of little concern.
Ehrenhaus v. Baker, 216 N.C. App. 59, 72, 717 S.E.2d 9, 19 (2011). Confidential
settlement agreements are also enforced by our courts, but the public interest in
settlement of litigation and freedom of contract must be balanced with the
presumptive right of public access to court proceedings.
In France v. France, 209 N.C. App. 406, 705 S.E.2d 399 (2011), a husband and
wife entered into a Separation and Property Settlement Agreement which included a
confidentiality provision and provision that in the event of litigation between them
“requires disclosure of any of the terms of the Agreement,” the parties would “use
their best efforts so that any reference to the terms of the Agreement and the
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Agreement itself will be filed under seal, with prior notice to the other party.” Id. at
407-08, 705 S.E.2d at 402 (brackets omitted). Litigation regarding an alleged breach
of the agreement ensued, and two “media movants,” a newspaper and television
station, moved for access to the courtroom proceedings in the case. Id. at 409, 705
S.E.2d at 403. The trial court entered an order allowing public access to the
courtroom proceedings and the husband appealed. Id.15
This court held that an agreement between the parties which required
“automatic and complete closure of the proceedings” was “in violation of public
policy—the qualified public right of access to civil court proceedings guaranteed by
Article I, Section 18” and in violation of the Public Records Act:
In his argument concerning his right to contract,
Plaintiff states that unless a contract is contrary to public
policy or prohibited by statute, the freedom to contract
requires that it be enforced. We hold that if the Agreement
requires automatic and complete closure of the proceedings
in this matter, then the Agreement is in violation of public
policy—the qualified public right of access to civil court
proceedings guaranteed by Article I, Section 18. Were we
to adopt Plaintiff’s position, any civil proceeding could be
closed to the public merely because any party involved
executed a contract with a confidentiality clause similar to
that contained in the Agreement in this matter. Plaintiff's
right to contract is in no way violated; we merely hold that
Plaintiff cannot, by contract, circumvent established public
policy—the qualified public right of access to civil court
proceedings. Plaintiff must show some independent
countervailing public policy concern sufficient to outweigh
15The procedural history of France v. France is complex; there were two appeals and three orders
regarding the media movants’ motion, but this portion of the opinion is instructive for purposes of this
case.
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Opinion of the Court
the qualified right of access to civil court proceedings.
Plaintiff’s position would also render meaningless
provisions of the Public Records Act, N.C. Gen. Stat. §
132-1 (1995). Further, the contract states that Plaintiff
and Defendant will use their best efforts so that any
reference to the terms of the Agreement and the Agreement
itself will be filed under seal. The Agreement contains
nothing requiring either Plaintiff or Defendant to use best
efforts to obtain a closed proceeding.
Id. at 415, 705 S.E.2d at 407 (citation, quotation marks, and brackets omitted).
This Court affirmed the trial court’s order opening the courtroom proceedings,
holding:
[T]he trial court was correct to determine whether
proceedings should be closed based upon the nature of the
evidence to be admitted and the facts of this specific case.
Evidence otherwise appropriate for open court may not be
sealed merely because an agreement is involved that
purports to render the contents of that agreement
confidential. Certain kinds of evidence may be such that
the public policy factors in favor of confidentiality outweigh
the public policy factors supporting free access of the public
to public records and proceedings.
By contrast, our appellate courts have ruled for the
disclosure of traditionally confidential records pursuant to
the Public Records Act. See, e.g., Carter–Hubbard Publ’g
Co. v. WRMC Hosp. Operating Corp., 178 N.C.App. 621,
628, 633 S.E.2d 682, 687 (2006) (contracts between public
hospitals and HMOs may be required to be disclosed
excepting parts of contracts that contain “competitive
health care information”); see also, Womack Newspapers,
Inc. v. Town of Kitty Hawk, 181 N.C.App. 1, 14, 639 S.E.2d
96, 104–05 (2007) (files and work product of city attorney
may be required to be disclosed pursuant to the Public
Records Act). Plaintiff points to no statutory support for
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any contention that the Agreement should be excepted
from the Public Records Act, and we find none.
Id. at 415-16, 705 S.E.2d at 407-08 (citations omitted).
The Confidential Settlement Agreement here also includes provisions
regarding sealing the court file, but a court file “may not be sealed merely because
an agreement is involved that purports to render the contents of that agreement
confidential.” Id. at 415-16, 705 S.E.2d at 407. In many cases, the parties may wish
to keep many types of sensitive information secret, but if the parties are using our
courts for resolution of their dispute, documents filed with the court are
presumptively available to the public.
Calling a settlement confidential does not make it a
trade secret, any more than calling an executive’s salary
confidential would require a judge to close proceedings if a
dispute erupted about payment (or termination). Many a
litigant would prefer that the subject of the case—how
much it agreed to pay for the construction of a pipeline, how
many tons of coal its plant uses per day, and so on—be kept
from the curious (including its business rivals and
customers), but the tradition that litigation is open to the
public is of very long standing. People who want secrecy
should opt for arbitration. When they call on the courts,
they must accept the openness that goes with subsidized
dispute resolution by public (and publicly accountable)
officials. Judicial proceedings are public rather than
private property, and the third-party effects that justify the
subsidy of the judicial system also justify making records
and decisions as open as possible. What happens in the
halls of government is presumptively public business.
Judges deliberate in private but issue public decisions after
public arguments based on public records. The political
branches of government claim legitimacy by election,
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Opinion of the Court
judges by reason. Any step that withdraws an element of
the judicial process from public view makes the ensuing
decision look more like fiat, which requires compelling
justification.
Union Oil, 220 F.3d at 567-68 (citations omitted).
On remand, the trial court should consider whether the Confidential
Settlement Agreement within the court file should remain sealed, considering the
subject matter of the Agreement and “the facts of this specific case.” The “public
policy factors in favor of confidentiality” as to the Agreement include the protection
of the identity of the juvenile plaintiffs, but may also include the public policy factors
of encouraging settlement of litigation and freedom of contract. At least, the trial
court should redact specific identifying information as discussed above, but the trial
court may determine that other portions of the Agreement or even the entire
Confidential Settlement Agreement should remain sealed. Since the parties to the
case, the Newspaper, and other parties interested in the Confidential Settlement
Agreement have not had the opportunity to address these particular issues before the
trial court, on remand, the trial court shall hold a hearing so that all of those parties
may be heard before entering an order addressing the extent of access to the
Confidentiality Agreement and any redactions needed.
iv. Recordings of 22 November 2016 and 14 December 2016 Hearings
On remand, the trial court shall review the recordings and determine if any
portion of the recording reveals the identities of the juvenile plaintiffs or other specific
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Opinion of the Court
identifying information, just as for the documents discussed above. The trial court
shall unseal the recordings, with any redactions necessary to protect the compelling
public interests discussed above.
VII. Remedy Under N.C. Gen. Stat. § 1-72.1Since we have determined that the trial court’s order was not narrowly tailored
and that it is possible to unseal substantial portions of the file without harming the
interests of the juveniles or the criminal defendant’s interest in a fair trial, we must
consider the appropriate remedy under N.C. Gen. Stat. § 1-72.1. Subsection (e) of N.C.
Gen. Stat. § 1-72.1 addresses procedure when an order is appealed:
A ruling on a motion made pursuant to this section may be
the subject of an immediate interlocutory appeal by the
movant or any party to the proceeding. Notice of appeal
must be given in writing, filed with the court, and served
on all parties no later than 10 days after entry of the court’s
ruling. If notice of appeal is timely given and given before
further proceedings are held in the court that might be
affected by appellate review of the matter, the court, on its
own motion or on the motion of the movant or any party,
shall consider whether to stay any proceedings that could
be affected by appellate review of the court’s ruling on the
motion. If notice of appeal is timely given but is given only
after further proceedings in the trial court that could be
affected by appellate review of the ruling on a motion made
pursuant to this section, or if a request for stay of
proceedings is made and is denied, then the sole relief that
shall be available on any appeal in the event the appellate
court determines that the ruling of the trial court was
erroneous shall be reversal of the trial court’s ruling on the
motion and remand for rehearing or retrial. On appeal the
court may determine that a ruling of the trial court sealing
a document or restricting access to proceedings or refusing
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Opinion of the Court
to unseal documents or open proceedings was erroneously
entered, but it may not retroactively order the unsealing of
documents or the opening of testimony that was sealed or
closed by the trial court’s order.
N.C. Gen. Stat. § 1-72.1(e).
N.C. Gen. Stat. § 1-72.1 specifically addresses potential remedies in
interlocutory appeals and limits the remedy on appeal of an interlocutory order to
reversal of the sealing order and “remand for rehearing or retrial” in two situations:
1. Notice of appeal is given “after further proceedings in the trial court that could be
affected by appellate review of the ruling on a motion made pursuant to this
section”[;] or, 2. Notice of appeal is given and “request for stay of proceedings is made
and is denied.” Id.In both situations, the underlying case is still pending when the order to seal
is subject to an interlocutory appeal. The last sentence of subsection (e) is: “On appeal
the court may determine that a ruling of the trial court sealing a document or
restricting access to proceedings or refusing to unseal documents or open proceedings
was erroneously entered, but it may not retroactively order the unsealing of documents
or the opening of testimony that was sealed or closed by the trial court’s order.” Id.(emphasis added). If the last sentence of subsection (e) is read to apply to an appeal
from a final order, and not just interlocutory appeals, it would effectively eliminate
any remedy in a case already fully resolved.
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Read in context, subsection (e) of the statute addresses only interlocutory
appeals so it does not apply to the procedural posture of this case: an appeal from a
final order. Here, the underlying proceeding was resolved entirely before the motion
to unseal was filed, the order entered, and notice of appeal was given, so the
proceeding cannot be “affected by appellate review” of the orders sealing the file, and
we cannot remand for “rehearing or retrial” of the case, which has been settled. N.C.
Gen. Stat. §1-72.1(e) addresses remedies for interlocutory appeals only, so it does not
limit the remedy in this case.
N.C. Gen. Stat. §1-72.1 is entitled “Procedure to assert right of access” and was
enacted after Virmani—which was decided when there was no statute addressing a
procedure to assert the right of access—to establish a procedure for a non-party to a
case to assert the right, without need to “intervene under the provisions of Rule 24 of
the Rules of Civil Procedure” or to be a party to the underlying action. N.C. Gen. Stat.
§1-72.1 (a).
The cardinal principle of statutory construction is
that the intent of the legislature is controlling. To ascertain
our General Assembly’s legislative intent, we look at the
phraseology of the statute as well as the nature and
purpose of the act and the consequences which would follow
its construction one way or the other. We will not adopt an
interpretation that would result in injustice when the
statute may reasonably be otherwise consistently
construed with the intent of the act. Finally, whenever
possible, we will construe a statute so as to avoid absurd
consequences.
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Few v. Hammack Enter., Inc., 132 N.C. App. 291, 295-96, 511 S.E.2d 665, 669 (1999)
(citations, quotation marks, and brackets omitted).
Since the underlying proceeding has been finally resolved and will not be
affected by our review of the sealing order, and we have determined that the order
was erroneously entered, the only possible remedy is to order the unsealing of the file
with redactions and limitations as discussed above. If we interpreted N.C. Gen. Stat.
§ 1-72.1 to remove the authority of this court to order unsealing of documents
erroneously sealed, this interpretation would leave a successful litigant with no
remedy for a violation of its constitutional rights. This interpretation would “would
result in injustice,” and N.C. Gen. Stat. § 1-72.1 “may reasonably be otherwise
consistently construed with the intent of the act.” Id. at 295-96, 511 S.E.2d at 669.
Subsection (f) provides that § 1-72.1 is “intended to establish a civil procedure for
hearing and determining claims of access to documents and to testimony in civil
judicial proceedings and shall not be deemed or constructed to limit, expand, change,
or otherwise preempt any provisions of the substantive law that define or declare the
rights and restrictions with respect to claims of access.” N.C. Gen. Stat. § 1-72.1(f)
(emphasis added). Because N.C. Gen. Stat. § 1-72-1 is a procedural statute which
does not limit or change any substantive law – including the qualified right of public
access to court files under the North Carolina and United States Constitutions—we
must construe it in a manner which preserves the duty of the appellate courts to
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provide a remedy in an appeal from a final order, especially where a constitutional
issue is raised.
In addition, the Constitution of North Carolina expressly vests in our Supreme
Court the “exclusive authority to make rules of procedure and practice for the
Appellate Division.” N.C. Const. art. IV, § 13, cl. 2. If we interpreted N.C. Gen. Stat.
§ 1-72.1 as a procedural rule eliminating the authority of the Appellate Division to
provide a remedy for a violation of constitutional rights by ordering unsealing of
documents erroneously sealed, it would conflict with the North Carolina Constitution.
Since the only remedy possible in this case is to order unsealing of documents in the
case file, with redactions as necessary to protect the identities of the juveniles (and
the possibility of additional temporary protection of the criminal defendant’s right to
a fair trial on remand), our duty under the North Carolina Constitution is to order
that the documents be unsealed and redacted.
VIII. Conclusion
We vacate the trial court’s 22 November 2016 and 14 December 2016 orders
and reverse the Order denying Newspaper’s motion for access to the court file and
remand for a hearing for the trial court to enter a new order. On remand, the trial
court shall immediately unseal the names of all defendants, counsel for all parties,
and the guardians ad litem for the juvenile plaintiffs to facilitate proper notification
to all parties regarding the proceedings on remand and service of any documents filed.
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All parties shall use pseudonyms for the juvenile plaintiffs and shall not include any
specific identifying information of the juvenile plaintiffs in any motions, notices, or
other documents filed with the trial court on remand. After proper notice, the trial
court shall hold a hearing on remand and all parties to the lawsuit as well as
Newspaper shall have the opportunity to present evidence and arguments limited to
the proper scope of the redactions or other limitations of public access to the trial
court file. At the minimum, the trial court shall redact the names and other specific
identifying information regarding the juvenile plaintiffs as noted above in all
documents and recordings but may make other redactions consistent with this
opinion. The trial court shall consider whether the Confidential Settlement
Agreement should remain sealed in its entirety or if it should be unsealed with
redactions. At the hearing on remand, if the criminal defendant requests any
additional protection based upon his right to a fair trial, the trial court shall also
consider the status of the South Carolina criminal prosecution, including information
already made public in or related to that proceeding, and determine if any additional
information in the file must be redacted or sealed to protect the interest of the
criminal defendant in a fair trial.16 If the trial court orders any redaction or sealing
based upon the interest of the criminal defendant in a fair trial, it shall make findings
16 It is possible criminal defendant has abandoned this argument since defendants did not mention
this interest on appeal. Criminal defendant must request consideration on remand if he wants the
trial court to consider this interest.
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Opinion of the Court
of fact supporting the order and shall also address when and how that information
shall be unsealed. On remand, the trial court shall not redact or seal any document
or recording for the purpose of protecting defendants or third parties from
embarrassment, trauma, or economic damage.
REVERSED AND REMANDED.
Judges ZACHARY and MURPHY concur.
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