Marcello Simonetta v. Wesleyan University (2010)

MEMORANDUM OF DECISION ON MOTION TO FILE UNDER SEAL PORTIONS OF MEMORANDUM OF LAW

On October 25, 2010, the court held a hearing concerning the defendant Wesleyan University's (defendant or Wesleyan) motion (# 131) to file under seal portions of its memorandum of law in opposition (“memorandum of law in opposition”) to the plaintiff's motion for protective order (motion to seal).   As provided for in Practice Book §§ 7-4B and 7-4C, defendant lodged with the court an unredacted memorandum in opposition, with unredacted exhibits, and filed a memorandum of law (# 132).   The plaintiff filed an objection to the motion to seal (# 140).   Pursuant to a briefing schedule, the parties also filed supplemental memoranda (# # 144, 145).

Pursuant to Practice Book § 11-20A(e), the public was notified of the time and place of the hearing on the motion to seal.   No member of the public attended the hearing.

In support of its motion, the defendant contends that portions of the record (its memorandum of law in opposition and related exhibits) contain confidential information concerning its consideration of, and deliberations concerning, plaintiff's candidacy for tenure as a member of its faculty, the disclosure of which would have a chilling effect on its tenure process.   In opposition, the plaintiff asserts that the defendant has not provided any legal or factual authority to satisfy the high standard that must be met in order to prevent the tenure deliberation documents in question from public view when the defendant has asked the court to consider them in connection with a ruling concerning access to witnesses.

Practice Book § 11-20A(a) provides, that “[e]xcept as otherwise provided by law, there shall be a presumption that documents filed with the court shall be available to the public.”   According to Practice Book § 11-20A(b), “the judicial authority shall not order that any files, affidavits, documents, or other materials on file with the court or filed in connection with a court proceeding be sealed or their disclosure limited,” unless, pursuant to § 11-20A(c), “the judicial authority concludes that such order is necessary to preserve an interest which is determined to override the public's interest in viewing such materials.”

“The presumption of openness of court proceedings ․ is a fundamental principle of our judicial system ․ This policy of openness is not to be abridged lightly.   In fact, the legislature has provided for very few instances in which it has determined that, as a matter of course, certain privacy concerns outweigh the public's interest in open judicial proceedings ․ The right to have documents sealed is not a right the parties have as against each other;  the court must determine the question as against the demands of the public interest.”  (Citation omitted;  internal quotation marks omitted.)   Bank of New York v. Bell, 120 Conn.App. 837, 846, 993 A.2d 1022, appeal dismissed, 298 Conn. 917 (2010).  “For matters that do not fall within the statutory exceptions and for which sealing is requested, the trial court must consider whether a substantial privacy interest exists to override the public's interest in open judicial proceedings.”  (Internal quotation marks omitted.)   Id. Neither party contends that a statutory exception is applicable here.

“[Practice Book] § 11-20A codifies the common-law presumption of public access to judicial documents, meaning any document filed with the court that the court reasonably could rely on in support of its adjudicatory function.”   Rosado v. Bridgeport Roman Catholic Diocesan Corp., 292 Conn. 1, 30, 970 A.2d 656, cert. denied sub nom.  Bridgeport Roman Catholic Diocesan Corp. v. New York Times Co., 130 S.Ct. 500, 175 L.Ed.2d 348 (2009).   The public interest in judicial monitoring extends to discovery-related motions, and their associated exhibits.   See id., 47-48.

Here, it is undisputed that the defendant intends for the court to rely on the documents which the defendant proposes to seal, when the court adjudicates the motion for protective order.   Accordingly, these documents are judicial documents.   See Rosado v. Bridgeport Roman Catholic Diocesan Corp., supra, 292 Conn. 46.

The defendant provides no evidence in support of its motion to seal.   There is no evidence before the court to support the defendant's arguments that faculty members would be more likely to refuse to serve on tenure committees and those who choose to serve would be more likely to compromise their opinions of candidates out of fear that those opinions would be made public.   The argument of counsel about a “chilling effect” is not a substitute for such evidence.   See Director, Department of Information Technology v. Freedom of Information Commission, 274 Conn. 179, 191-92, 874 A.2d 785 (2005).

Likewise, the authority cited by the defendant is not a substitute for evidence.   In University of Pennsylvania v. Equal Employment Opportunity Commission, 493 U.S. 182, 193, 110 S.Ct. 577, 107 L.Ed.2d 571 (1990), the court stated that “universities and colleges play significant roles in American society ․ [C]onfidentiality is important to the proper functioning of the peer review process under which many academic institutions operate.”   Nevertheless, the court also stated that “we cannot accept the University's invitation to create a new privilege against the disclosure of peer review materials.”  Id., 189.  “Often, ․ disclosure of peer review materials will be necessary in order for the [EEOC] to determine whether illegal discrimination has taken place.   Indeed, if there is a ‘smoking gun’ to be found that demonstrates discrimination in tenure decisions, it is likely to be tucked away in peer review files.”  (Citation omitted.)  Id., 193.

The reasoning and result in University of Pennsylvania v. Equal Employment Opportunity Commission, supra, are contrary to that in Gray v. Board of Higher Education, 692 F.2d 901 (2d Cir.1982), cited by the defendant where the court adopted a qualified privilege.   See id., 908.¹

The defendant also provided a law review article, James H. Brooks, Confidentiality of Tenure Review and Discovery of Peer Review Materials, 1988 BYU L.Rev. 705, 733-39.   This article predates University of Pennsylvania v. Equal Employment Opportunity Commission, supra, which is discussed above.   The author's suppositions, at pages 733-4 of the law review article, set forth more than twenty years ago, that disclosure would cause some faculty members to refuse to serve on tenure committees, and that those who choose to serve will compromise their opinions, are not evidence of a chilling effect at Wesleyan in the present.   As the Supreme Court commented, “we are not so ready as petitioner seems to be to assume the worst about those in the academic community.   Although it is possible that some evaluators may become less candid as the possibility of disclosure increases, others may simply ground their evaluations in specific examples and illustrations in order to deflect potential claims of bias or unfairness.   Not all academics will hesitate to stand up and be counted when they evaluate their peers.”   University of Pennsylvania v. Equal Employment Opportunity Commission, supra, 493 U.S. 200-01.

The court finds that there is no evidence of an interest to be preserved which overrides the public's interest in openness of court proceedings.   See Practice Book § 11-20A.

CONCLUSION

For the foregoing reasons, the defendant's motion to seal is denied.

1. Pursuant to Practice Book § 7-4B(d), since the court has denied the motion to seal, “the clerk shall either (1) return the lodged record to the submitting party and shall not place it in the court file or (2) upon written request of the submitting party retain the record as a lodged record ․” Any request for the court to retain the record shall be made in writing to the Court Officer for the X04 Docket by November 12, 2010.   If no request to retain the record is made by November 12, 2010, the defendant shall contact the Court Officer to make arrangements to retrieve the lodged record.

2. If the defendant wishes to file an unredacted memorandum in opposition to the motion for protective order, it shall be filed by November 12, 2010.   In that event, the court will consider the unredacted memorandum instead of that which has been filed in redacted form.

It is so ordered.

BY THE COURT

ROBERT B. SHAPIRO

JUDGE OF THE SUPERIOR COURT

FOOTNOTES

FN1. The defendant refers the court to the Second Circuit's quotation, 692 F.2d 903, from the District Court's decision, which stated that “ ‘maintenance of the confidentiality of the decision-making process is generally an integral element of a peer review system for granting or withholding tenure,’ and that ‘[t]he tenure system is an essential linchpin in the commitment to safeguard the academic freedom of individual teachers.’  “ This language occurs in the appellate court's recital of the facts, not in its discussion section, and must be considered dicta.   Also, the District Court's decision was reversed.   See id., 902..  FN1. The defendant refers the court to the Second Circuit's quotation, 692 F.2d 903, from the District Court's decision, which stated that “ ‘maintenance of the confidentiality of the decision-making process is generally an integral element of a peer review system for granting or withholding tenure,’ and that ‘[t]he tenure system is an essential linchpin in the commitment to safeguard the academic freedom of individual teachers.’  “ This language occurs in the appellate court's recital of the facts, not in its discussion section, and must be considered dicta.   Also, the District Court's decision was reversed.   See id., 902.

Shapiro, Robert B., J.