Powers v. Secretary of Health and Human Services ( 2019 )

In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 14-917V
Filed: September 20, 2019
* * * * * * * * * * * * * * *
CHRIS POWERS, * UNPUBLISHED
*
*
* Motion for Redaction of Entitlement
Petitioner, * Decision; 42 U.S.C. § 300aa-12(d)(4)(B);
* Privacy; Medical Information
v. *
*
SECRETARY OF HEALTH *
AND HUMAN SERVICES, *
*
Respondent. *
* * * * * * * * * * * * * * *
ORDER ON PETITIONER’S MOTION FOR REDACTION
Roth, Special Master:
On September 29, 2014, petitioner filed a petition for compensation under the National
Vaccine Injury Compensation Program, 42 U.S.C. § 300aa-10, et seq.1 (the “Vaccine Act” or
“Program”). The petition alleged that petitioner received an influenza (“flu”) vaccination which
resulted in polymyalgia rheumatica (“PMR”) and/or rheumatoid arthritis (“RA”). Petition at 1. An
entitlement hearing was held on December 11-12, 2017. After the filing of post-hearing briefs, an
entitlement decision was issued on August 21, 2019 in which I determined petitioner was not
entitled to compensation. Decision, ECF No. 94.
On September 4, 2019, petitioner timely filed a Motion to Redact. Motion to Redact, ECF
No. 97. In his motion, petitioner requested that his name be redacted to his initials throughout the
entitlement decision and in the caption of this matter because the decision “details petitioner’s pre-
vaccination and post-vaccination medical history, surgeries, post-surgical complications, medical
treatment, prescription medication history and ability to maintain his employment in light of his
medical conditions.” Motion at 3. Petitioner requested that his personal information not be
searchable on the Internet given the sensitive nature of his medical history. Id. In accordance with
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National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease
of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa
(2012).
Vaccine Rule 18(b), petitioner attached a proposed redacted version of my decision. See Motion
to Supplement Motion to Redact, ECF No. 98.2
Respondent filed a response on September 10, 2019. Response, ECF No. 99. Respondent
did not oppose petitioner’s motion, but instead deferred “to the sound discretion of the Special
Master to determine which remedy strikes the appropriate balance between the public and private
interests in this instance.” Response at 5.
For the reasons discussed below, petitioner’s motion is granted.
I. Legal Authority
Members of the public have the right to access court documents. See Nixon v. Warner
Comm. Inc, 435 U.S. 559, 597 (1978). Public disclosure of court records is essential to the
development of the common law. When the Vaccine Program was established, Congress decided
to have the claims adjudicated within the federal court system, indicating an intent that the
traditional policy of public disclosure of judicial decisions should apply to Program cases.
Castagna v. Sec’y of Health and Human Servs., No. 99-411V, 2011 WL 4348135, at *1 (Fed. Cl.
Spec. Mstr. Aug. 25, 2011); see also Rhone Poulenc Argo, S.A. v. DeKalb Genetics Corp., 284
F.3d 1323, 1329 n.3 (Fed. Cir. 2002); Anderson v. Sec’y of Health and Human Servs., 2014 WL
3294656 at *3. In some circumstances, courts seal or redact their decisions. However, it should be
noted that the preferences of the parties about public access to decisions are not binding. Reidell
v. United States, 47 Fed. Cl. 209 (2000) (declining to vacate the underlying decision as the parties
had requested in settling the case).
The E-Government Act of 2002 requires that all federal courts maintain a website to
provide public access to “docket information for each case” and “access to the substance of all
written opinions issued by the court.” E-Government Act § 205(a). To implement this law, the
Court of Federal Claims added RCFC 5.2, which allows for redactions of electronic filings that
contain social security numbers, taxpayer-identification numbers, birth dates, account numbers, or
the name of a minor. RCFC 5.2(a). See also Pearson v. Sec'y of Dep't of Health and Human Servs.,
No. 03-2751V, 2011 WL 4863717, at *3 (Fed. Cl. Spec. Mstr. Sept. 22, 2011).
Section 12(d)(4)(B) of the Vaccine Act governs redactions. It states:
A decision of a special master in a proceeding shall be disclosed, except that if the decision
is to include information –
(i) which is trade secret or commercial or financial information which is privileged
and confidential, or
(ii) which are medical files and similar files the disclosure of which would constitute a
clearly unwarranted invasion of privacy,
and if the person who submitted such information objects to the inclusion of such
information in the decision, the decision shall be disclosed without such information.
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This motion will be rendered moot as the redaction of petitioner’s entitlement decision will be dealt with
in its entirety in this Order.
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The Court of Appeals for the Federal Circuit has yet to interpret this provision, meaning that there
is no binding authority regarding how the provision should be applied. As this case does not
involve trade secrets or commercial or financial information, petitioner’s request relies upon §
12(d)(4)(B)(ii). The question thus becomes: what constitutes a “clearly unwarranted invasion of
privacy”?
In an absence of binding precedent, special masters have generally not favored redactions,
although there are some notable exceptions. Special masters are often more lenient in granting
requests for redaction in cases involving minors. All other redactions are based upon a petitioner’s
unique circumstances. However, in recent years, special masters have generally only rarely found
that an adult petitioner’s circumstances warrant redaction.
A. Rulings Denying Redaction
Several special masters have concluded that the plain language of the Vaccine Act,
specifically § 12(d)(4)(B), requires decisions to be disclosed to the public. Further, special masters
have concluded that public disclosure of a vaccinee’s medical condition is not a clearly
unwarranted invasion of privacy because the vaccinee placed his or her medical condition in
contention by filing a claim. Moreover, the publication of Program decisions is necessary so that
future petitioners can see what types of cases are meritorious.
In Langland, the petitioners requested the redaction of either all medical information or all
identifying information. The then-Chief Special Master denied the petitioners’ request, ruling that
special masters may only redact medical information “if the requesting party can show that
disclosure would be an invasion of privacy, and that that invasion would be ‘clearly unwarranted.’”
Langland v. Sec’y of Health and Human Servs., No. 07-36V, 2011 WL 802695, at *6 (Fed. Cl.
Spec. Mstr. Feb. 3, 2011). The then-Chief Special Master found that “the context of the statutory
structure” and the “emphatic language” employed by Congress in § 12(d)(4)(B) mean that “a party
requesting redaction of medical information must satisfy a substantial burden to demonstrate a
right to redaction.” Id.
The Court of Federal Claims affirmed the Chief Special Master’s determination and
analysis of the redaction issue in a footnote. 109 Fed. Cl. 421, 424 n.1 (2013). Generally,
petitioners must make a strong showing that redaction is warranted in order for their requests to
be granted. See also Castagna v. Sec’y of Health and Human Servs., No. 99-411V, 2011 WL
4348135 (Fed. Cl. Spec. Mstr. Aug. 25, 2011); Anderson v. Sec’y of Health and Human Servs.,
No. 08-396V, 2014 WL 3294656 (Fed. Cl. Spec. Mstr. June 4, 2014).
B. Rulings Granting Redaction
Although recently special masters have generally followed the Langland approach, on
occasion, special masters and judges have found redactions to be warranted. In W.C., the special
master initially denied petitioner’s motion to redact. On review, a judge of the Court of Federal
Claims reversed. The court determined that, given their similarities, the Vaccine Act’s privacy
provisions should be read in concert with the Freedom of Information Act’s privacy provisions.
The court then endorsed a balancing test. The court stated that the special masters’ decisions had
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to contain petitioners’ medical information in order to allow the law to develop. However, the
judge concluded that it was not necessary for a vaccinee’s name to be made public. W.C. v. Sec’y
of Health and Human Servs., 100 Fed. Cl. 440, 456-61 (2011).
The petitioner in W.C. presented unique circumstances. He argued that disclosure of his
medical information would be a clearly unwarranted invasion of privacy because it could
undermine his career. The petitioner in that case was a federal employee whose position required
him to testify on behalf of the government. He was concerned that public disclosure of his medical
condition could discredit his testimony. Id. at 447. The court found that redaction of petitioner’s
name was proper, but it retained the medical information in the decision.
II. Discussion
The standard set by Langland requires a compelling reason for redaction, which must be
“tailored to meet the individual interest it serves.” Anderson, 2014 WL 3294656, at *5 (citing
Langland, 2011 WL 802695, at *7-8). In the instant case, petitioner has requested his name be
redacted to his initials throughout the decision given the extensive medical, personal, and work-
related details contained in the decision. See Motion to Redact at 3. Petitioner’s request is narrowly
tailored to include only redaction of his name, the redaction of which would not affect the public’s
ability to understand the basis for the decision. A redacted decision would still provide an in-depth
recitation of the vaccinee’s medical history, thus comporting with the purpose of the public
disclosure requirement. Accordingly, the invasion of privacy to petitioner in disclosing his detailed
medical history is “clearly unwarranted” when issuing a redacted decision would satisfy the
Vaccine Act’s public disclosure requirement. Ranjbar v. Sec’y of Health & Human Servs., No. 15-
905V, 2016 WL 4191127 (Fed. Cl. Spec. Mstr. Jun. 21, 2016) (citing W.C. v. Sec’y of Health &
Human Servs., 100 Fed. Cl. 440 (Fed. Cl. 2011) (finding that any invasion of privacy threatened
by disclosure is “clearly unwarranted” when there is no relevant public purpose to be weighed
against a threatened invasion)).
III. Conclusion
Petitioner’s Motion to Redact is therefore granted. The original decision that I issued on
August 21, 2019, shall be redacted as set forth in petitioner’s proposed redacted version of the
decision and published thirty-five days after this Order is issued.
IT IS SO ORDERED.
s/Mindy Michaels Roth
Mindy Michaels Roth
Special Master
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