The certiorari petition in Tardy v. Corrections Corporation of America, No. 23-129, requests the Supreme Court to resolve an inter-circuit conflict concerning Article III standing for individuals who seek access to sealed court records. The appeal arises from a Sixth Circuit decision holding that “to have standing, a plaintiff claiming an informational injury must have suffered adverse effects from the denial of access to information.” Other circuits hold that in view of the nation’s long tradition of judicial transparency, denial of access to court records confers standing upon proposed intervenors or other third-parties who seek to unseal protected court records.
Standing to seek access, however, i.e., standing to request a court to unseal documents, is different than entitlement to access. In other words, whether particular documents should be unsealed is a separate question.
The Petitioner in Tardy seeks access to certain sealed documents from a settled case in which he was not a party. He believes that the documents may help to establish the culpability of the Respondent private prison contractor for the death of his son.
On behalf of the Atlantic Legal Foundation I have filed an amicus brief urging the Court to hear the appeal and hold that the public interest in judicial transparency confers standing upon a individual who seeks access to sealed documents.
ALF Amicus Brief
ALF’s amicus brief argues that having standing to seek access to court records is fundamental to judicial transparency. The brief explains that judicial transparency is particularly important to the rule of law and civil justice because unlike Congress and the Executive Branch, the federal judiciary is only indirectly accountable to the public since it is composed of judges with lifetime appointments.
ALF agrees with the dissenting opinion filed in Tardy by Circuit Judge Gibbons. Her opinion explains that denial of access “is all that Article III requires where a litigant seeks to vindicate a statutory right of public access to information. . . . There is no reason to apply a more demanding standard to litigants seeking to vindicate the public’s common-law right of access to judicial records.”
Like Judge Gibbons, ALF’s amicus brief argues that the panel majority erred by relying on the following sentence from TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214 (2012): “An asserted informational injury that causes no adverse effects cannot satisfy Article III.” TransUnion involved erroneous credit reporting. Its “adverse effects” test does not apply to standing to seek access to judicial records. ALF contends in its amicus brief that the Supreme Court should grant review and hold, or at least clarify, that a showing of adverse effects from denial of access to sealed judicial records is not required for a proposed intervenor to have standing to seek unsealing.
The brief explains that “[r]equiring an individual to demonstrate that they have ‘suffered adverse effects from the denial of access’ to establish standing to seek access to court records also defies common sense. Without first seeing the documents for which access is sought, a proposed intervenor cannot demonstrate that they have suffered (or will suffer) adverse effects from denial of access.” In other words, “the Court should not require individuals to possess clairvoyance to have standing to seek the unsealing of court records.”