# 3Jn tbe fflntteb $)tates <!Court of

. ff

# eberal <!Claims OFFICE OF SPECIAL MASTERS No.19-628V Filed: October 31, 2019 

## ************* * * S.A. andH.A., Parents of A.A., on behalf of A.A.,
Petitioner, v.
SECRETARY OF HEALTH AND HUMAN SERVICES, 

### * 

### * * * * * * 

### * * Respondent. 

## ************* * * Prose, Evanston, IL for petitioners. UNPUBLISHED
Motion for Redaction; 42 U.S.C. § 300aa-12(d)(4)(B)

AltheaDavis, Esq., U.S. Dept. ofJustice, Washington, DC, for respondent.
ORDER ONPETITIONERS' MOTION TO REDACT Roth, Special Master:
Petitioners filed their petition on April 22, 2019. On May 1, 2019, an initial order was issueddirectingpetitionersto contactthe Courtwithinapproximately45 daysto discusstheircase. On May 3, 2019, petitioners filed a supplement to their petition, several medical records, and a Statement ofCompletion. Petitioners' Exhibits ("Pet. Ex.") 1-16.
On May 26, 2019, petitioners contacted my Chambers via email and advised that they are in the process ofobtaining representation in this matter. Accordingly, petitioners were ordered to file a letter with the Court advising, in writing, whether they had secured counsel by August 5, 2019. Petitioners did not file a status report by this deadline. On August 20, 2019, an order was issued extendingpetitioners' deadline to file a status report advising ontheirprogress in obtaining representation to September 19, 2019. Petitioners were cautioned that ifthey failed to meet this deadline, an orderto show cause would be issued.
On September 9, 2019, petitioners filed a Motion for Withdrawal and Censorship requesting that their case be dismissed and censorship oftheir child's name. This request was interpreted as a Motion for a Dismissal Decision. On October 1, 2019, a Dismissal Decision was issued. In this decision, petitioners were informed that after the decision was issued, they would have 14 days to file a Motion for Redaction explaining why redaction of A.A.'s initials was warranted, if necessary. Petitioners were also advised that the only information that will be publicly available is the Dismissal Decision. 

### REISSUED FOR PUBLICATION NOV 25, 2019 OSM U.S. COURT OF FEDERAL CLAIMSOnOctober 8, 2019,petitionerstimelyfiled aMotionto Redact. Intheirmotion,petitioners requested that their full names their personal home address, their child's initials, "A.A.," and all listed diagnoses be redacted. They submitted, "The initials A.A. are fully identifiableto thepetitionerwhen linkedto his parents' names and therefore do not adequately protecthis medical privacy/diagnosis of'immune dysfunction, reactive airway disease, asthma."' Petitioner's requested that if it was not possible to all of the requested information, that the Courtredacttheir full names and A.A's initials and diagnoses.
On October 21, 2019, respondent filed a response to petitioners' motion. Respondent submittedthat "the analysis here should focus on whether redaction ofthe requested information strikes an appropriate balance between petitioner's privacy interest in the information and the public's interest inthe Decision." Respondent ultimately deferred to my discretion as to whether petitioners' motion shouldbe granted.
Petitioner did not file a reply. Petitioners' motion is nowripe for ruling.
I. Petitioner's Motion for Redaction
A. Legal Authority
Members ofthe 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 ofthe 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 ofjudicial decisions should apply to Program cases. Castagna v. Sec'y of Health andHuman 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 andHuman Servs., 2014 WL 3294656 at *3. In some circumstances, courts seal orredacttheir decisions. However, it should be noted that the preferences ofthe parties about public access to decisions are not binding. Reidel!
v. UnitedStates, 47 Fed. Cl. 209 (2000) (decliningto vacate the underlying decision as theparties hadrequested 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 ofall written opinions issued by the court." E-Government Act § 205(a). To implement this law, the Court ofFederal Claims added RCFC 5.2, which allows for redactions ofelectronic filings that contain social securitynumbers, taxpayer-identificationnumbers, birthdates, accountnumbers, or thename ofaminor. RCFC 5.2(a). See also Pearson v. Sec

### '.Yof Dep'tof Health andHuman Servs., No. 03-2751V, 2011 WL 4863717, at *3 (Fed. Cl. Spec. Mstr. Sept. 22, 2011).
Section 12(d)(4)(B) ofthe Vaccine Act governs redactions. 

### It states:

2A decision ofa specialmasterin aproceeding shallbe disclosed, exceptthatifthe 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 ofwhich would constitute a clearlyunwarranted invasion ofprivacy, 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.
The CourtofAppeals for the Federal Circuithas yet to interpretthis provision, meaningthat 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 ofbinding precedent, special masters have generally not favored redactions, although there are some notable exceptions. Special masters are often more lenient in granting requests for redactionin cases involving minors. All otherredactions are basedupon apetitioner's unique circumstances. However, in recent years, special masters have generally only rarely found that an adult petitioner's circumstances warrant redaction.
1. 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 disclosedto thepublic. 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 ofProgram decisions is necessary so that future petitioners can see whattypes ofcases are meritorious.
InLangland, the petitionersrequestedthe redaction ofeither all medical information or all identifying information. The then-ChiefSpecial Master denied the petitioners' request, rulingthat special masters may only redact medical information "if the requesting party can show that disclosurewouldbe aninvasionofprivacy, andthatthat invasionwouldbe 'clearlyunwarranted."' Langlandv. Sec'y of Health andHuman Servs., No. 07-36V, 2011 WL 802695, at *6 (Fed. Cl. Spec. Mstr. Feb. 3, 2011). The then-ChiefSpecial Master found that "the context ofthe statutory structure" andthe "emphaticlanguage" employedby Congress in§ 12(d)(4)(B) meanthat "aparty requesting redaction ofmedical 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 andHuman Servs., No. 08-396V, 2014 WL 3294656 (Fed. Cl. Spec. Mstr. June 4, 2014).

32. Rulings Granting Redaction Although recently special masters have generally followed the Langland approach, on occasion, special masters andjudges have found redactions to be warranted. In WC., the special master initially denied petitioner's motion to redact. On review, ajudge ofthe Court ofFederal Claims reversed. The court determined that, given their similarities, the Vaccine Act's privacy provisions should be read in concert with the Freedom ofInformation Act's privacy provisions. The court then endorsed a balancing test. The court stated that the special masters' decisions had 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. WC v. Sec'y of Health andHuman Servs., 100 Fed. Cl. 440, 456-61 (2011).
The petitioner in WC. presented unique circumstances. He argued that disclosure ofhis 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 positionrequired himto testify onbehalfofthe government. He was concernedthatpublic disclosure ofhis medical condition could discredit his testimony. Id. at 447. The court found that redaction ofpetitioner's name was proper, but it retained the medical information in the decision.
B. Discussion
In the instant matter, petitioners have requested redaction of their names, their home address, A.A.'s initials, and all the diagnoses in this matter. Petitioner submitted, "The initials A.A. are fully identifiable to the petitionerwhen linkedto his parents' names andtherefore do not adequatelyprotecthis medicalprivacy/diagnosis of'immunedysfunction, reactive airway disease, asthma."' Petitioners further requested that if it was not possible to redact of the requested information, thatthe Courtredact their full names and A.A's initials and diagnoses.
While section 12(d)(4)(B) requires decisions ofspecialmasters to be disclosed, ithas been the Program's practice to also publish certain rulings and orders even ifthey will not result in an entry of judgment. See, e.g., Henley v. Sec'y of Health & Human Servs., No. 16-499V, 2017 WL 1129693 (Fed. Cl. Spec. Mstr. Mar. 9, 2017) (Ruling on facts regarding onset of petitioner's symptoms); Brass v. Sec'y of Health & Human Servs., No. 14-918V, 2015 WL 11822104 (Fed. Cl. Spec. Mstr. Feb. 27, 2015) (Order denying petitioner's motion to amend the case caption); Escalante v. Sec'y of Health & Human Servs., No. 08-264V, 2009 WL 995183 (Fed. Cl. Spec. Mstr. Mar. 25, 2009) (Order for petitioner to show cause why her case should not be dismissed). When interpreting section 12(d)(4)(B) in the context ofa motion for redaction, special masters have not differentiated between decisions resulting in judgment and other types of orders or rulings. See, e.g., TM v. Sec'yof Health &Human Servs.,No. 17-138V, 2018 WL 5269806 (Fed. Cl. Spec. Mstr. Aug. 13, 2018) (Granting petitioner's request for redaction of a fact ruling); Windhorst v. Sec'y of Health & Human Servs., No. 13-647V, 2017 WL 728045 (Fed. Cl. Spec. Mstr. Jan. 10, 2017) (Denying petitioner's request for redaction of a fact ruling). Because the Dismissal Decision will be disclosed to the public, I conclude that it is subject to the disclosure exceptions articulated in section 12(d)(4)(B).

4Iwould like to clarify for petitioners thatVaccineProgram cases are filed underseal; all records filed, including medical records, and all orders issued in this matter, including those with petitioners' address, cannot be accessed by anyone other than the parties and the Court. The only document that will be made publicly available is the Dismissal Decision, which merely states the subject vaccinations, vaccination dates, and claimed injuries.
The standard set by Langlandrequires 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). Petitioners' request for all initials and diagnoses to be redacted is notnarrowly tailored. Moreover, a mere desire to maintainprivacy does not "satisfy a substantial burden" in demonstrating a right to redaction. Langland, 2011 WL 802695, at *6. Therefore, all initials and diagnoses will not be redacted. However, the purpose ofdisclosure is not defeated by redacting a petitioner's name to their initials; accordingly, when the Dismissal Decision is published, petitioners' home address will be fully redacted and their names
- ill be redacted to their initials.

III. Conclusion
Petitioners' Motion to Redact is GRANTED IN PART. The original Dismissal Decision that I issued on October 1, 2019, shall be redacted to petitioners' initials and their home address will be fully redacted. The decision will be published1thirty-five days after this Order is issued.
The Clerk's Office is directed to sendthis decision to petitioners atthe following address via certified and regular mail.

IT IS SO ORDERED.
DATE: 

## t0/3J

# /1ep· I

1Whenthis Order on Petitioners' Motion to Redact is published, petitioners' names will be redactedto their initials and their full names and address contained in the order will be fully redacted. 

### 5