Case 1:88-cv-00385-KG-CG Document 721 Filed 07/01/16 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

DEBRA HATTEN-GONZALES, et al.,

Plaintiffs,
vs.

No. CIV 88-0385 KG/CG

Consolidated with
No. CIV 88-0786 KG/CG

BRENT EARNEST, Secretary of the

New Mexico Human Services Department,
Defendant.
PLAINTIFFS MOTION TO UNSEAL REPORT OF INVESTIGATION
Plaintiffs, through undersigned counsel, respectfully move this Court to unseal the report
of investigation filed by Defendant on June 28, 216 (Doc. 720) concerning the addition of false
assets into food assistance case files. The report is an internal investigation conducted by the
Defendants Office of Inspector General for this Court. On June 20, 2016, this Court granted
Defendant leave to file his investigative report, due June 28, 2016 under seal. Having reviewed
the report and accompanying exhibits, Plaintiffs respectfully request that this Court unseal the
contents.
Argument
Federal Courts recognize a common law right of public access to judicial records. Crystal
Growers Corp. v. Dobbins, 616 F.2d 458, 461

(10th Cir. 1980) (citing Nixon v. Warner

Communications, Inc., 435 U.S. 589, 59799(1978); Crystal Grower's Corp. v. Dobbins, 616
F.2d 458, 461 (10th Cir.1980); Stapp v. Overnite Transp. Co., No. 962320GTV, 1998 WL
229538, at *1 (D. Kan. Apr.10, 1998)). To overcome the presumptively paramount public
interest in public access, the party seeking to seal records must articulate a real and substantial

Case 1:88-cv-00385-KG-CG Document 721 Filed 07/01/16 Page 2 of 4

interest that justifies depriving the public of access to the records that inform (the Courts)
decision-making process. Eugene S. v. Horizon Blue Cross Blue Shield of N.J., 663 F.3d 1124,
113536 (10th Cir.2011) (quoting Helm v. Kansas, 656 F.3d 1277, 1292 (10th Cir 2011). The
countervailing interests must heavily outweigh the public interests in access. Colony Ins. v.
Burke, 698 F.3d 1222 (10th Cir. 2012). The burden is on the party seeking to restrict access to
show some significant interest that outweighs the presumption. Id. Where the parties have not
submitted a specific argument or facts indicating why the confidentiality of the document
outweighs the presumption of public access, the parties have not come close to meeting that
heavy burden. See Colony Ins. Co. v. Burke, 698 F.3d 1222, 1242 (10th Cir. 2012). Sealing is
only appropriate if the district court makes specific, on the record findings demonstrating that
closure is essential to preserve higher values and is narrowly tailored to serve that
interest. United States v. McVeigh, 119 F. 3d 806, 814 (10th Cir. 1997), (quoting Press-Enter.
Co. v. Superior Court of California for Riverside Cty., 478 U.S. 1, 106 S. Ct. 2735, 92 L. Ed. 2d
1 (1986). ).
Defendant has not articulated to the Court any basis justifying a seal, let alone a basis that
would heavily outweigh the presumptively paramount public interest in access. The Court
record at issue is an internal state agency investigation into testimony and evidence that the
Income Support Division has a pattern and practice of adding false information about household
assets into case files so that families will not be identified as eligible for expedited food
assistance. The Courts actions in this case are of great public concern, as New Mexico has one
of the highest rates of hunger in the United States.1 Over 10,000 New Mexicans apply for food

Map the Meal Gap Report (2014) available at http://www.feedingamerica.org/hunger-in-america/ourresearch/map-the-meal-gap/2014/map-the-meal-gap-2014-exec-summ.pdf (showing NM has the second highest
rate of child food insecurity in United States).

Case 1:88-cv-00385-KG-CG Document 721 Filed 07/01/16 Page 3 of 4

assistance each month2 and almost half of those individuals are reported to be eligible for
expedited assistance.3 The public thus has an especially strong interest in having access to
documents the Court uses to inform its decision affecting the class of food assistance applicants.
The sealed report does not contain information sufficient for Defendant to invoke a
significant interest that outweighs the presumption of public access. The report only provides a
preliminary status of an investigation. It includes brief summaries of 17 interviews with lower
level

employees (including three who have already testified before the Court) and 38

attachments, which include more lengthy recitations of the interviews referenced in the report
and analysis of exhibits already on file with the Court. The report makes no conclusions and no
individual or entity is identified as potentially criminally liable. Any names and case number
information can be redacted to protect the identity of Defendants employees and food assistance
participants.
Conclusion
Wherefore, Plaintiffs respectfully request that the Court unseal Doc. 720, allowing only
for redaction of names and other personally identifiable case information.
Respectfully submitted,
/s/ Gail Evans
Gail J. Evans and Sovereign Hager
New Mexico Center on Law and Poverty
924 Park Ave., Suite C
Albuquerque, NM 87102
(505) 255-2840
FAX (505) 255-2778
Jane B. Yohalem
P.O. Box 2827
Santa Fe, NM 87504
2

Human Services Department, Monthly Statistical Report, April 2016, pg. 3, available at
http://www.hsd.state.nm.us/uploads/FileLinks/587930e6bdd0402c9d4990a78c041734/MSR_04_2016.pdf
3

Characteristics of Supplemental Nutrition Assistance Program Households: Fiscal Year 2014,USDA, pg. 51

Case 1:88-cv-00385-KG-CG Document 721 Filed 07/01/16 Page 4 of 4

(505) 988-2826

FAX (505) 982-6692

Daniel Yohalem
1121 Paseo de Peralta
Santa Fe, NM 87501
(505) 983-9433
FAX (505) 989-4844
Attorneys for Plaintiffs

CERTIFICATE OF SERVICE
I hereby certify that on July 1, 2016, I filed the foregoing pleading electronically with the United
States District Court, causing the same to be electronically served on opposing counsel,
Christopher Collins and Natalie Bruce at Christopher.Collins@state.nm.us and
Natalie.bruce@state.nm.us
/s/ Gail Evans
Gail Evans