Google’s report on compliance with bank TRO is judicial record subject to public access

by Paul Alan Levy

After Rocky Mountain Bank obtained a TRO closing the gmail account of a Google customer to which Rocky Mountain had mistakenly sent bank records of many of its customers, a federal district judge in San Jose decided not to allow public access to the report that Google made to the court in compliance with the TRO. Judge James Ware decided that because he had instructed Google to send the report to his chambers where he considered the report to have been “lodged”, instead of ordering it to file its report with the Clerk’s Office, the report had never been filed and hence was not a judicial record to which the public right of access applies.

We were concerned that the suit was filed improperly, that without even considering the obvious flaws in the lawsuit the judge had jumped the gun in issuing a restraining order without giving either Google or the anonymous user a chance to respond, that Google had gone along with the TRO far too easily any notice, and that by denying of access to the compliance report Judge Ware was sweeping all these past mistakes under the rug. Consequently, representing MediaPost Communications, which broke this story in the first place, we appealed this ruling, while agreeing that to the extent that the compliance report disclosed the anonymous user’s identity, that information should be redacted.

The United States Court of Appeals for the Ninth Circuit has now held that the right of public access cannot be so easily evaded. Having been demanded by the judge so that he, and Rocky Mountain, could be sure that the TRO had been obeyed, “the report in question is a quintessential judicial document,” the court said. The public’s right cannot be evaded by labeling the submission process as “lodging” instead of “filing.” The court therefore reversed and remanded with instructions to release the document with redaction only for any truly private and confidential information.