Hawaii Law Mandating Sealing of All "Medical and Health Records" Unconstitutional

From last week's decision in Civil Beat Law Center for the Public Interest, Inc. v. Maile, decided by Judge Richard Paez, joined by Judges Milan Smith and Lucy Koh:

Under the First Amendment, "the press and the public have a presumed right of access to court proceedings and documents." "By offering such protection, the First Amendment serves to ensure that the individual citizen can effectively participate in and contribute to our republican system of self-government." This right of access does not attach to every judicial proceeding or court record. But where the First Amendment right of access attaches, and "the State attempts to deny [that] right of access," "it must be shown that the denial is necessitated by a compelling governmental interest, and is narrowly tailored to serve that interest."

The Hawai'i Court Records Rules, which apply to all criminal and civil proceedings in Hawai'i state courts, require that all "medical and health records" be filed under seal without further order of a judge. We are asked to determine whether a state may mandate the categorical sealing of all "medical and health records" filed in any state court proceeding in order to protect the individual privacy rights of the subjects of those records, without any case-by-case consideration of the privacy interest implicated by the records or whether less restrictive alternatives exist to sufficiently protect that interest. We conclude that it may not….

Defendants argue that, even if the First Amendment grants a presumptive right of access to any "medical and health records," requiring that all such records be filed under seal is necessary to protect the individual right to privacy guaranteed by Hawaii's constitution and laws, such that the challenged provision does not run afoul of the First Amendment.

We agree that protecting an individual's constitutional and statutory right to privacy is a compelling interest that may justify sealing a particular medical or health record. As we have recognized, "[t]he need to protect individual privacy rights may, in some circumstances, rise to the level of a substantial governmental interest and defeat First Amendment right of access claims." But where, as here, the individual privacy interest implicated by a particular record may vary, the State of Hawai's general interest in protecting the privacy of its citizens cannot justify the categorical, mandatory sealing of every such record.

The individual right to privacy may justify closure where such a right is asserted by the affected individual and the court makes pre-closure findings as to the significance of the interest and necessity of closure. [Discussion of Supreme Court precedents omitted. -EV] … The individual privacy interest Defendants invoke will naturally vary across people, cases, and records. Not everything that might qualify as a medical or health record necessarily contains information that is private, and not everyone may care to keep every medical or health record private. And, even assuming that every filed record implicates an identically strong privacy interest, we expect that selective redaction could sufficiently protect that interest in many instances. Because the privacy interest implicated by a particular medical or health record can be protected just as well by a case-by-case determination of whether closure is truly necessary to protect the asserted interest, mandatory sealing is not the least restrictive means to protect that interest.

Under the Rules, as written, a litigant faces sanctions for publicly filing their own medical or health records, even if such records contain no private information, and even if the litigant wishes to make their private information public. In such cases, closure serves to protect no interest at all….

Defendants also urge us to uphold the mandatory sealing provision because case-by-case sealing would be more burdensome for courts, litigants, and members of the public. Defendants suggest that requiring case-by-case judicial evaluation of motions to seal would flood state courts with unnecessary litigation: because the Hawai'i constitution grants an individual right of privacy, parties moving to seal medical and health records would easily establish a compelling privacy interest sufficient to override public access. And members of the public would still need to challenge individual sealing motions in court. Such a procedure, Defendants contend, is both unnecessary and inefficient.

This argument is unpersuasive. We cannot agree with Defendants' assumptions that parties will move to seal every record that might constitute a medical or health record filed in state court, that the individual privacy interest will be equally strong as to every record, or that sealing will be the least restrictive means available to protect the privacy interest in every case. We therefore disagree that state courts would be burdened with unnecessary motions to seal; those courts are in the best position to evaluate whether the records at issue must, in fact, be sealed to protect any asserted privacy interest. And, perhaps most crucially, Defendants' argument ignores the presumption of openness granted by the First Amendment….

We are mindful of the "risks posed by remote electronic access to court filings," including privacy concerns. As we have explained, "nothing in our precedent prevents" courts from sealing records to which the presumptive public right of access attaches, "as long as [ ] courts decide motions to seal or redact on a case-by-case basis." And, "[t]o be sure, a court has the right to temporarily seal access to court records pending a hearing" on the motion to seal. Where the presumptive First Amendment right of access attaches, such a procedure ensures the protection of the individual right to privacy without unnecessarily burdening the constitutional rights of the public….

Here's the fact pattern that led to this particular lawsuit:

In 2020, Plaintiff Civil Beat moved to unseal the court-ordered competency evaluations of Ramoncito Abion. Abion was charged with assault after hitting a gas station employee with a hammer, then telling the arresting officer he heard voices and saw visions. A panel of three court-appointed examiners deemed Abion mentally fit for trial, although one suggested that, at the time of the offense, Abion was experiencing psychosis triggered by long-term methamphetamine use. When Abion sought to introduce that examiner's testimony in support of an insanity defense, the trial court held that drug-induced mental illness was not a defense under state law, excluded the examiner's testimony as irrelevant, and barred Abion from calling the examiner as a witness. The jury convicted Abion of assault.

Civil Beat filed a motion to unseal the competency evaluations in the Hawai'i Supreme Court while Abion's criminal appeal was pending in that court. Abion objected, arguing that the competency evaluations should remain sealed to protect his privacy. The Hawai'i Supreme Court declined to "unseal medical reports determining that [Abion] was fit to stand trial," construing the "medical and health records" that must be sealed under the Rules to include criminal responsibility and competency evaluations. The court did not explain its reasons for denying the motion to unseal; it offered no analysis beyond a citation to [the Records Rules] ….

The Hawai'i Supreme Court vacated Abion's conviction in a subsequent ruling, concluding that the trial court's exclusion of the examiner's testimony regarding methamphetamine-induced psychosis precluded Abion from presenting a complete defense….

Robert B. Black represents the Civil Beat Law Center.