Openness and Privacy in Court Cases Dealing with Litigants' Medical Information

"[A] uniform practice of social security opinions bearing only claimants' initials" might be a good idea in principle, says the Seventh Circuit, but "[g]iven everything that has transpired over the years, we cannot revisit the application of [the] standard practices regarding the publication of judicial decisions and orders in social security matters."

|The Volokh Conspiracy |

An interesting opinion by the Seventh Circuit in Mitze v. Saul (Judges Ripple, Hamilton & Scudder):

[A.] Years after Brenda Mitze unsuccessfully appealed the denial of her application for social security benefits, she moved to seal court decisions and other records, claiming that their publication violated her right to keep her medical information private. The district court denied the motion and we affirm….

[B.] We omit the details that led Mitze to apply for disability benefits in 2009, as they are unnecessary to the disposition of this appeal. The Commissioner found she was not disabled and denied her application. Suffice it to say she was unable to establish that a medically determinable impairment precluded her from engaging in past relevant work or other gainful employment. On review the district court upheld the Commissioner's decision. We did too.

Several years later, Mitze filed a motion to seal her "medical information … and all other information pertaining to [her] case." She complained of "harassing phone calls from solicitors" who knew her personal medical information because the courts had "publicized" it by issuing opinions announcing the affirmance of the ALJ's decision.

The district court denied Mitze's motion. It first noted that remote electronic access to filings containing Mitze's medical records already was limited to the parties and their attorneys. (Full access, however, is available to the public at the courthouse.) To the extent that Mitze wished to seal the district and appellate court opinions—both of which recounted her medical facts in detail—the district court determined she offered no reason to overturn the "long-standing tradition" of granting public access to the courts' decisions. Finally, the district court concluded that it had no authority to require news outlets to remove articles about those decisions from the internet.

On appeal, Mitze … adds not only that she and her children have experienced social stigma, but also that thieves broke into her home to steal pain medication, which publicly available documents revealed that she had been prescribed….

[C.] [A] strong presumption exists in favor of publishing dispositional orders. Even in cases involving substantial countervailing privacy interests such as state secrets, trade secrets, and attorney-client privilege, courts have opted for redacting instead of sealing the order or opinion….

Balancing the public's right to transparent court proceedings and a litigant's personal privacy interests is difficult, particularly when it comes to those seeking benefits based on health concerns. We sympathize with a claimant who feels as though her medical information should not be publicized simply because she chooses to avail herself of her right to judicial review. It might be that the existing remedies of proceeding anonymously, requesting redactions, or sealing records fall short of what is needed in the social security context.

To be sure, the public has "a right to know who is using [its] courts." Under the current standard, a plaintiff wishing to proceed anonymously must rebut the presumption that parties' identities are public information by showing that her need for anonymity outweighs the harm of concealment. But we question whether a uniform practice of social security opinions bearing only claimants' initials would negatively impact the government or public interest in any meaningful way.

We leave that balancing for another day. All we need to say in the case before us is that it is too late for Mitze. Given everything that has transpired over the years, we cannot revisit the application of these standard practices regarding the publication of judicial decisions and orders in social security matters.

[D.] Mitze's circumstances fall outside the "very few categories" for which we have recognized that confidentiality is appropriate…. "[E]mbarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records." ….

When unsuccessful applicants for disability benefits seek judicial review, they can expect (at least under today's practices) that the medical basis of the claim will become public. In such cases, federal courts have a responsibility to review the decision of an administrative law judge to determine whether there is substantial evidence—primarily medical evidence—in the administrative record to support the decision. We do so in reasoned decisions issued to the parties and made available to the public.

The Federal Rules of Civil Procedure draw a line at protecting medical records themselves, and redaction of personal identifying information such as social security numbers is required. But mere discussion of the factual basis for a disability claim is not grounds for preventing the publication of judicial decisions….

[E.] Mitze's two remaining arguments also fail. News outlets have the right to publish information obtained from public court records, so we cannot order an outlet to remove from its website articles reporting on the decisions in her case. And to the extent Mitze argues that the courts or the press making the details of her case public violates the Health Insurance Portability and Accountability Act, she has not explained how. The Act regulates the disclosure of information by only healthcare providers and their affiliates.

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  1. If her house is being robbed because of details available to the public because of the court case, that would seem to be a harm that needs to be redressed in some manner (I’m not stating her claim is true here, just that if it is true it would need redress). The courts decision doesn’t seem to address the house being robbed argument she presented. Maybe someone else saw something I didn’t?

    1. I don’t disagree but what redress would even be possible at this late date? The horse is out of the barn. Even if the court now redacted or sealed its copy of the documents, unredacted copies are in the wild.

      She would have had a much stronger argument (and a warmer reception) if she’d argued for redactions when the case was started. Of course, that might have required predicting the migration of court documents online. I didn’t look at the actual dates but assume for the moment that we’re talking about a case filed in the bad old paper-only days where everyone assumed that court documents were “open” to anyone with the time and money to pay for photocopies from the local cleark of courts. The court’s unilateral decision to move historical documents online is a great value for many social purposes but it has undeniable costs for those who relied on the friction of paper to protect privacy. The court’s decision to move documents online is not something that pre-internet parties to court actions could have been expected to predict.

    2. I am doubtful that criminals are in the habit of looking online for medical information in court documents to find out which houses might be worth robbing. Much more likely it’s just random burglary. If criminals targeted her house from information they obtained, more likely they were digging through trash for receipts, or watching who left pharmacies carrying little bags, or overheard a conversation. I really doubt they are using court documents.

    3. Isn’t personally identifying information routinely redacted form filings? Thinks like Social Security numbers and addresses?

  2. Should have been sealed automatically by uniform rule, from the beginning of the case.

    1. Why? Judicial enforcement ultimately comes down to the public honoring verdicts, and routinely sealing verdicts would lead to all sorts of corrupt verdicts. If you want public trust, you can’t hide the facts which determine a verdict.

      1. If you’re expecting a response from me, forget it. After your last ad hominem I’m no longer reading your comments let alone responding to them.

        1. Why can’t sealing of these things be handled similarly to the way courts do published/unpublished opinions?

          Routine cases should remain sealed. If something is not routine and raises significant issues of public interest, they should go ahead and unseal the case.

  3. I suspect that the advertisers harassing her got her “private” information by other means. All she has to do is make a Google search for some term related to her condition.

    So I would ask her to supply at least some evidence that the court records were the source of her information leak. That may be a nearly impossible burden, but otherwise there is no way to conclude that her motion should be granted.

  4. On appeal, Mitze … adds not only that she and her children have experienced social stigma, but also that thieves broke into her home to steal pain medication, which publicly available documents revealed that she had been prescribed….

    Those would be some very enterprising thieves. But that doesn’t really seem efficient (though maybe those thieves are secretly funding the PACER refund litigation).

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