United States District Court, D. Maine
ORDER ON MOTIONS TO SEAL
A. WOODCOCK, JR. UNITED STATES DISTRICT JUDGE
public sentencing is not a private matter.
October 11, 2016, a jury found Sidney P. Kilmartin guilty of
five violations of federal criminal law and acquitted him of
one charge. Jury Verdict (ECF No. 153). The Court
set the sentencing hearing for April 27, 2018. Notice of
Rescheduled Hr'g (ECF No. 231). During the
presentence process, the Defendant filed a number of
sentencing memoranda and moved for a downward departure and
variant sentence. Def.'s Sentencing Mem. Addressing
Objections to Revised Presentence Report (ECF No. 227)
(Def.'s Sentencing Mem.); Mot. for a
Downward Departure (ECF No. 235); Mot. for a Variant
Sentence (ECF No. 236) (Def.'s Variant
Mem.); Am. Mot. for a Downward Departure (ECF
No. 242) (Def.'s Departure Mem.); Def.'s
Reply to Gov't's Resp. in Opp'n to Mot. for
Downward Departure and Mot. for Variant Sentence (Filed Under
Seal) (ECF No. 249). The Government responded.
Gov't's Resp. to Def.'s Sentencing Mem.
(ECF No. 228); Gov't's Resp. Under Seal to
Def.'s Mots. for Downward Departure and Variant
Sentence (ECF No. 246).
The Motions to Seal
issue before the Court is whether to seal memoranda and
attachments filed on the docket by the parties in
anticipation of Mr. Kilmartin's sentencing hearing and
whether to seal the motions to seal. By their nature, the
memoranda and attachments are intended to influence Mr.
Kilmartin's sentence, and the motions to seal would
effectively block the public right of access to the
information in these documents.
March 7, 2018, Mr. Kilmartin filed a motion to seal his
motion for downward departure, representing that the
Government did not oppose the motion. Unopposed Mot. to
File Under Seal Def.'s Mots. for Downward Departure and
for Variant Sentence (ECF No. 234). On the same day, the
Court issued an order, granting in part and denying in part
the motion to seal, citing United States v. Kravetz,
706 F.3d 47 (1st Cir. 2013), and requiring the parties to
file memoranda within two weeks, explaining why the documents
should be sealed. Order (ECF No. 239). On March 7,
2018, Mr. Kilmartin filed an amended motion to seal.
Unopposed Am. Mot. to File Under Seal Def.'s Mots.
for Downward Departure, Mot. for Variant Sentence, and Mot,
to Exceed Page Limit (ECF No. 237).
March 8, 2018, the Court issued an amended order, clarifying
the order. Am. Order (ECF No. 241). On March 20,
2018, the Government filed its memorandum,
Gov't's Mem. on Sealing Sentencing Materials
(ECF No. 243) (Gov't's Sealing Mem.), and on
March 21, 2018, Mr. Kilmartin filed his memorandum.
Def.'s Resp. to Court's Am. Order of March 8,
2018 (ECF 241) (Def.'s Sealing Mem.). On
March 20, the Government moved to seal its response to Mr.
Kilmartin's motions for departure and for variant
sentence. Mot. to Seal Gov't's Resp. to
Def.'s Mots. to Depart and Vary (ECF No. 245). On
March 26, 2018, Mr. Kilmartin moved to seal the
Government's sentencing exhibits. Mot. to Seal
Gov't's Sentencing Exs. (ECF No. 247); On March
28, 2018, Mr. Kilmartin filed a motion to seal his reply to
the Government's response to his motions for downward
departure and variant sentence. Mot. to File Under Seal
Def.'s Reply to Gov't's Resp. in Opp'n to
Mots. for Downward Departure and Mot. for Variant
Sentence (ECF No. 248).
Kravetz, the First Circuit addressed the question of
public access to court proceedings and, among other things,
held that information in judicial records that bears directly
on sentencing is subject to a presumption of public access.
706 F.3d at 56-57; United States v. DiMasi, 215
F.Supp.3d 179, 183 n.3 (D. Mass. 2016). The Kravetz
Court explained that sentencing memoranda are judicial
Although we previously have not decided the precise question
of whether advocacy memoranda, commonly submitted by the
parties to the court in advance of sentencing, are
“judicial records” entitled to a common law
presumption of access, we have little doubt that they are.
For starters, sentencing memoranda, which bear directly on
criminal sentencing in that they seek to influence the
judge's determination of the appropriate sentence, fall
squarely into the category of materials that a court relies
on in determining central issues in criminal litigation.
Id. at 56. Under Kravetz, once the
sentencing memoranda are deemed judicial records, as they
must be in this case, the presumption of public access
applies to them, id. at 57, and “‘only
the most compelling reasons can justify non-disclosure of
judicial records' that come within the scope of the
common-law right of access.” Id. at 59
(quoting In re Providence Journal, 293 F.3d 1, 10
(1st Cir. 2002)).
Kravetz Court addressed claims by a defendant that
private medical information should be redacted, even though
the defendant was urging the sentencing court to consider the
medical information in assessing a proper sentence.
Id. at 63-64. The First Circuit wrote that
“[t]he privacy interest in medical information is
‘neither fundamental nor absolute, '” and
that it “can be waived or otherwise overcome by a
variety of means.” Id. at 63. The
Kravetz Court distinguished between medical or
psychological information that is “peripheral”
and would only serve to ...