# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 08-504V (Not to be Published)

* * * * * * * * * * * * * * * * * * * * * * * * * R.V. and E.V. parents and natural * guardians of L.V., a minor , * * Filed: May 10, 2016 Petitioners, * * Special Master Corcoran v. * * SECRETARY OF HEALTH AND * Ruling; Motion for Redaction; HUMAN SERVICES, * Entitlement Decision; Influenza * (“Flu”) Vaccine; Autism Spectrum Respondent. * Disorder (“ASD”). * * * * * * * * * * * * * * * * * * * * * * * * * *

Robert Krakow , Law Office of Robert J. Krakow, New York, NY, for Petitioners.

Heather Pearlman , U.S. Dep’t of Justice, Washington, DC, for Respondent.



### Ruling on Motion to Redact 1

On July 11, 2008, Petitioners filed this action on behalf of their minor child, L.V., seeking compensation under the National Vaccine Inju ry Compensation Program (the “Vaccine Program”). 2 Petitioners alleged that L.V. suffered an autoimmune encephalopathy as a result of his receipt of the influenza (“fl u”) vaccine that, in conjunction with his underlying mitochondrial disease, caused him to develop an Autism Spectrum Disorder (“ASD”).

1 Because this ruling contains a reasoned explanation for my action in this case, it w ill be posted on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002, 44 U.S.C. § 3501 (2012). As provided by 42 U.S.C. § 300aa-12(d)(4)(B), however, the parties may object to the published ruling’s inclusion of certain kinds of confidential informati on. Specifically, under Vaccine Rule 18(b ), each party has fourteen (14) days within which to request redaction “of any information furnished by that party: (1) that is a trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted i nvasion of privacy.” Vaccine Rule 18(b). Otherwise, the whole ruling will be available to the public. Id.

2 The Vaccine Program comprises Part 2 of the National Chil dhood Vaccine Injury Act of 1986, Pub. L. No. 99-660,100 Stat. 3758 (codified as amended, 42 U.S.C. §§ 300aa-10 to 34 (2012)) (“Vaccine Act” or “the Act”). EGovernment Act of 2002, 44 U.S.C. § 3501 (2012). For purpose s of brevity, all subsequent references to sections of the Act herein shall omit the 42 U.S.C. §§ 300aa prefix.2 An entitlement hearing was held in this case on April 13-14, 2015. I recently issued a decision denying L.V. compensation under the Vaccine Program. Decision, filed Feb. 19, 2016 (ECF No. 160) (the “Entitlement Decision”). Pe titioners have now request ed, pursuant to Vaccine Rule 18(b), that I redact portions of the Entitlem ent Decision, including their names, case number, and other personal information that links the identity of Petitioners to private medical information. Mot. for Redaction (“Mot.”) (ECF No. 161). For the reasons stated below, I hereby grant in part
Petitioners’ motion.

Procedural Background
Petitioners filed the present motion on Ma rch 3, 2016, requesting that their names be redacted from the Entitlement Decision, along with the case number and other personal identifying
information contained therein. Mo t. at 2. Petitioners argued that absent redaction, disclosure of certain information contained in the published d ecision “would constitute a clearly unwarranted invasion of privacy.” Id . But the motion largely invoked as it rationale Petiti oners’ concern for protecting L.V.’s privacy. Id . at 9. Otherwise, the motion was not supported with factual examples
of how disclosure would invade Petitioners’ privacy, asse rting instead the self -evident nature of the harm from publication, and argui ng that it would be unfair to requi re them to substantiate the basis for their request. Id . at 3-4.

On March 18, 2016, Respondent filed a brief re acting to Petitioners’ Motion. ECF No. 162 (“Resp.”). Respondent essentially took no position as to whether redaction wa s appropriate or not, deferring resolution of the matter to my discretio n. Resp. at 5. Respondent otherwise discussed the standards to be applied in we ighing redaction requests based on two decisions addressing the matter at length. See generally W.C. v. Sec’y of Health & Human Servs. , 100 Fed. Cl. 440, 456-57 (Fed. Cl. 2011) aff’d , 704 F.3d 1352 (Fed. Cir. 2013); Langland v. Sec’y of Health & Human
Servs. , No. 07-36V, 2011 WL 802695 (Fed. Cl. Spec. Mstr. Feb. 3, 2011), mot. for rev. denied on non-relevant grounds , 109 Fed. Cl. 421 (2013); Resp. at 2. On March 28, 2016, Petitioners filed a reply, pointing out that Responde nt had not actually opposed the re lief sought in their motion. ECF No. 167 (“Reply”) at 1. Petit ioners otherwise reiterated their prio r arguments that disclosure itself would be sufficiently harmful to Petitioners to justify redaction. Id . at 2-3.

I subsequently held a status c onference with the parties, and thereafter asked Petitioners to file a declaration elaborating as to why redact ion was appropriate under th e circumstances. They filed this declaration on April 29, 2016, along with a copy of the Entitlement Decision setting forth the portions to be redacted. See Supplemental Submission, dated April 29, 2016 (ECF No. 169), and Declaration of E.V., dated Ap ril 29, 2016 (Ex. 199 (ECF. No. 169-2)). E.V.’s declaration provides detailed grounds for the redaction reques t; for example, she sets forth the Petitioners’ concern that publication of their names in association with the En titlement Decision could affect
their interactions with L.V.’s school and its accommodation of his m edical and developmental
needs. See, e.g., Ex. 199 at ¶¶ 16-18 and 22. The matte r is now ripe for resolution.3 Analysis
I have previously discussed in other decisions the Vaccine Ac t’s treatment of requests to redact Program decisions and rulings. See generally Lamare v. Sec’ y of Health & Human Servs., No. 12-312V, slip op., at 2-4 (Fed. Cl. Spec. Mstr. Feb. 27, 2015), mot. for review den’d

, 123 Fed. Cl. 497 (2015); § 12(d)(4)(B); Vaccine Rule 18(b). The Act provides for redaction from published decisions of certain categories of information – “medical files and similar files” – but only if the
disclosure of such information would constitute a “c learly unwarra nted invasion of privacy.” Section 12(d)(4)(B). Although the Vaccine Rules make mandatory the re daction of a minor’s name, adult petitioners’ names (which are not si milarly protected automatically) may also be
redacted if the movant establ ishes proper grounds for so doing. See generally W.C

., 100 Fed. Cl. at 460-61 (analogizing Vaccine Ac t’s privacy concerns to treatme nt of similar issues under the Freedom of Information Act, claimant’s name wa s properly subject to re daction from decision); A.K. v. Sec’y of Health & Human Servs.

, No. 09-605V, 2013 WL 322918, at *2 (Fed. Cl. Spec. Mstr. Jan. 17, 2013) (same); but see Langland

, 2011 WL 802695, at *7-8 (p etitioners not entitled to redaction of names from decision where they failed to establish compelling grounds for so doing).

As Respondent’s brief notes, and as I have previously observed, W.C. and Langland stand as two somewhat-opposed interpretations of how st rict the standard for ob taining redaction should
be. Langland adopts a more stringent approach, while W.C. emphasizes a balancing test that weighs a petitioner’s privacy interests agai nst “the public purpose of the Vaccine Act.” W.C

., 100 Fed. Cl. at 460-61; Lamare , slip op. (Fed. Cl. Spec. Mstr. Oct. 30, 2015). In either case, however, a petitioner needs to make some showing to justify the relief of re daction; redaction is not available simply at a petitione r’s beck and call. W.C., 100 Fed. Cl. at 460 (balan cing of interests favors redaction “where an objecti on [to disclosure] is made on reasonable grounds ”) (emphasis added). I have permitted redaction in cases where su ch a specialized showing was made without reconciling these two competing standards or choosing one over the other. See, e.g.

, Lamare , slip op. (Fed. Cl. Spec. Mstr. Oct. 30, 2015) (granting pe titioner’s motion for redaction because disclosure of her injuries would cause her harm in the em ployment context); S.B. v. Sec’y of Health
& Human Servs. , No. 14-918V, slip op. (Fed. Cl. Spec. Mstr. Feb. 9, 2016).

As supplemented by E.V.’s declaration, Petitio ners have made an adequate showing for their redaction request. Moreover, Respondent offers no substantive objection to the relief sought herein. Accordingly, I will grant that portion of Pe titioners’ motion that requests redaction of their names and personal information from the Decisi on, and will identify them only as “Petitioners.” 3

3 Exhibit 200 to the Supplemental Submission identifies th e places in the decision wher e redaction is requested, but includes L.V.’s initials as one of the categories requested. I do not deem it appropriate to further redact this information, however, since it is consistent with the cap tion (which has already been redacted down to initials in4 I do not, however, grant Petitione rs’ request to redact the case ’s index number. Pursuant to the Court of Federal Claims Rule 79(a)(2) and Vaccine Rule 16(a), all papers filed in the Court of
Federal Claims must have the case number and be entered on the docket. R.K. on behalf of A.K. v. Sec'y of the Dep't of Health & Human Servs ., 125 Fed. Cl. 276, 281 (2016) (denying redaction of case number despite allowing redaction of other information, and determining that party names would be changed to in itials rather than gi ven “Doe” designations); see also Anderson v. Sec’y of
Health & Human Servs. , No. 8-396V, 2014 WL 3294656, at *4 (Fed Cl. Spec. Mstr. June 4, 2014). It is impossible to file documents in a Vacci ne Program case without a case index number. Moreover, the request to redact the index num ber exceeds the Act’s redaction provisions, which are limited to nondisclosure (in ap propriate circumstances ) of “medical files or similar files.” Section 12(d)(4)(B).

The relief granted herein is provided reluctan tly. Redaction is not an automatic right for all Vaccine Program claimants, and yet the Petitione rs’ initial motion was premised upon that false assumption (and even the declaration itself presumes in part that the mere disclosure that the
Petitioners’ claim was un successful is harmful). Pearson v. Sec’y of Health & Human Servs.

, No. 03-2751V, 2011 WL 4863717, at *5 (Fed. Cl. Spec. Mstr. Sept. 22, 2011) (“[p]etitioner’s preference to keep his damages award private is not a sufficient reason to . . . justify redaction”). Moreover, this case is one of nu merous similar cases asserting th at a child experienced an ASD, or ASD-like developmental regression, after admi nistration of a vaccine. Despite the heartache such parents may have experienced in addressing their children’s developmental problems, and their good faith desire for privacy, redaction of autism decisions has been the exception in the Vaccine Program rather than the rule. 4 Counsel in such cases (as we ll as herein) should not expect that future requests for redaction will be simila rly granted – especially if the Act’s underlying
bases for such relief are not met.

connection with the Vaccine Rules. See R.K. on behalf of A.K. v. Sec'y of the Dep't of Health & Human Servs ., 125 Fed. Cl. 276, 281 (2016).

4 In the past two years, there have been approximately twenty published Vaccine Program decisions that alleged autism as the injury and contained substantive, detailed discussions of the relevant child’s medical history and references to the child’s parents or guardians (who are more often than not the nominal petitioners in such cases). Only one, however

– R.K. v. Sec’y of Health & Human Servs. , slip op., (Fed. Cl. Spec. Mstr. Dec. 1, 2015) – has been redacted. Although R.K. bears similarities to the present matt er, in another, equally-similar case, Anderson v. Sec’y of Health & Human Servs ., No. 8-396V, 2014 WL 3294656, at *4 (Fed Cl. Spec. Mstr. June 4, 2014), redaction of the same categories of information was denied. Anderson, 2014 WL 3294656, at *5-6. There is therefore no trend in favor on redaction.5 CONCLUSION

For the reasons set forth above, I hereby determine that Petitioners have established grounds for redaction of their names and personal information in the entitl ement decision in this case, and I therefore GRANT the motion to that extent, but DENY the request to redact the case’s
index number. The Clerk of this Court is hereby instructed to change the caption of this case to the caption above.

IT IS SO ORDERED.

/s/ Brian H. Corcoran
Brian H. Corcoran Special Master