                                                                                                        12/14/2018
                  IN THE COURT OF APPEALS OF TENNESSEE
                              AT NASHVILLE
                                        December 11, 2018

 JOHN DOE BY HIS NEXT FRIEND JANE DOE, ET AL v. BRENTWOOD
                    ACADEMY INC., ET AL

                  Appeal from the Circuit Court for Williamson County
                   No. 2017-435, 2017-472 Deanna B. Johnson, Judge
                        ___________________________________

                               No. M2018-02059-COA-R9-CV
                           ___________________________________

       This Tenn. R. App. P. 9 application for permission to appeal concerns whether
portions of a trial court order and a transcript, both of which reference Plaintiff Jane
Doe’s medical history, should be placed under seal. Pursuant to an October 2, 2018 order
of remand from this court in Appeal No. M2018-01611-COA-R10-CV1, the trial court
determined that portions of the documents should be redacted but that certain portions of
the transcript and order which include references to Jane Doe’s medical history should
not be placed under seal. The trial court subsequently granted Jane Doe and John Doe
permission to appeal under Tenn. R. App. P. 9. We concur with the trial court that this is
an appropriate case for an interlocutory appeal. Furthermore, because the application and
answer fully set forth the parties’ positions and the material facts, we dispense with
further briefing and oral argument and proceed to the merits of the appeal in order to save
the parties additional time and expense.

 Tenn. R. App. P. 9 Interlocutory Appeal; Judgment of the Circuit Court Reversed

FRANK G. CLEMENT JR., P.J., M.S., delivered the opinion of the Court, in which ANDY D.
BENNETT and RICHARD H. DINKINS, JJ., joined.

Justin S. Gilbert, Chattanooga, Tennessee, for the appellants, John Doe and Jane Doe.

Thomas A. Swafford, Nashville, Tennessee, Elizabeth G. Hart and Tara L. Swafford,
Franklin, Tennessee, and Lucian T. Pera, Memphis, Tennessee, for the appellees, Buddy
Alexander, Nancy Brasher, Brentwood Academy, Inc., Lyle Husband, Curt Masters, and
Mike Vazquez.

        1
           This court denied the Tenn. R. App. P. 10 application for an extraordinary appeal in Appeal No.
M2018-01611-COA-R10-CV on October 4, 2018, and mandate issued on November 5, 2018. Despite the
denial of the application, the issues concerning which documents held by the clerk should be placed under
seal remains a live controversy over which this court has jurisdiction.
                                         OPINION

       This case arises out of an alleged sexual assault of a minor, John Doe, in a middle
school locker room. John Doe by his next friend Jane Doe filed a complaint against the
school and several individual defendants. Although the plaintiffs voluntarily dismissed
their complaint without prejudice under Tenn. R. Civ. P. 41.01 in June of 2018, ancillary
matters remained pending before the trial court. On September 4, 2018, the plaintiffs filed
an application for an extraordinary appeal under Tenn. R. App. P. 10. No. M2018-01611-
COA-R10-CV. In connection with the application, the parties filed several exhibits that
had been placed under seal in the trial court pursuant to the trial court’s blanket order
entered on November 15, 2017. The November 15, 2017 order reads in pertinent part,
“the Court hereby requires that all documents filed in this case initially be placed under
seal. The Court will then do an in camera inspection of each document and decide
whether or not to unseal the document.” No such in camera inspection of the relevant
documents had occurred at the time the Tenn. R. App. P. 10 application was filed.

       Documents previously filed under seal in the trial court pursuant to a specific
order of the trial court remain under seal in this court. Tenn. Ct. App. R. 15(b)(i).
However, “[f]or a document to be filed under seal in the appellate court pursuant to
subdivision (b), the trial court must have made an individualized determination that the
particular document should be filed under seal.” Tenn. Ct. App. R. 15(b)(ii). Because the
November 15, 2017 order did not include the individualized determination required by
Tenn. Ct. App. R. 15, we remanded the matter to the trial court with instructions to make
specific findings and conclusions needed to justify sealing any specifically identified
documents or portions of documents.

       On November 1, 2018, the trial court entered an order placing several documents,
or portions thereof, under seal and removing the seal from several other documents. At
issue in this appeal is the trial court’s determination that certain portions of a February 5,
2018 order and a November 9, 2017 transcript, both of which reference Jane Doe’s
medical history, should not be placed under seal. The trial court found that the plaintiffs
had failed to show a “compelling reason” to justify sealing these portions of the record
because they contained a discussion about Jane Doe’s medical information, not of Jane
Doe’s actual medical records. The trial court subsequently granted the plaintiffs
permission to appeal under Tenn. R. App. P. 9. The plaintiffs timely filed a Tenn. R. App.
P. 9 application in this court, and the defendants filed an answer in opposition to the
application. In addition, the plaintiffs have filed a motion to file portions of their
application and supporting documents under seal pursuant to Tenn. Ct. App. R. 15. We
emphasize at this point that the only issue before us in this Tenn. R. App. P. 9 appeal is
public access to the two documents in question. Neither the defendants’ access to the
documents nor the documents’ admissibility is at issue.

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        We review the trial court’s orders to seal its records under an abuse of discretion
standard. However, “‘[i]n light of the important rights involved, the district court’s
decision is not accorded’ the deference that standard normally brings.” Shane Group, Inc.
v. Blue Cross Blue Shield of Michigan, 825 F.3d 299, 306 (6th Cir. 2016). (quoting In re
Knoxville News–Sentinel Co., 723 F.2d 470, 476 (6th Cir. 1983)). Having reviewed the
relevant documents, we conclude the trial court interpreted the protection for the
plaintiff’s medical history too narrowly.

                                        ANALYSIS

       “The courts of this country recognize a general right to inspect and copy public
records and documents, including judicial records and documents.” Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978). This public
access doctrine is codified in the Tennessee Public Records Act. Tenn. Code Ann. §§ 10-
7-101 to -702. The definition of “public records” that are subject to public access include
the following court records: “the pleadings, documents, and other papers filed with the
Clerk[s] of…all courts.” In re NHC - Nashville Fire Litigation, 293 S.W.3d 547, 564
(Tenn. Ct. App. 2008) (citing Ballard v. Herzke, 924 S.W.2d 652, 661 (Tenn. 1996)
(emphasis in Ballard ) (quoting Tenn. Code Ann. § 10-7-403)). Thus, all documents filed
with the trial court clerk are public records and are open to the public unless they are
protected from disclosure by a statute, rule, or court order. See Tenn. Sup. Ct. R. 34.

       There is a “strong presumption in favor of openness” regarding court records.
Shane Grp., Inc., 825 F.3d at 305 (citing Brown & Williamson Tobacco Corp. v. FTC,
710 F.2d 1165, 1179 (6th Cir. 1983)). Unlike discovery information merely exchanged
between the parties, “[t]he public has a strong interest in obtaining the information
contained in the court record.” Brown & Williamson Tobacco Corp., 710 F.2d at 1180.
As this court has reasoned, “[t]he public’s right to access provides public scrutiny over
the court system which serves to (1) promote community respect for the rule of law, (2)
provide a check on the activities of judges and litigants, and (3) foster more accurate fact
finding.” In re NHC, 293 S.W.3d at 561 (quoting Ballard, 924 S.W.2d at 661).

       There are, however, numerous exceptions to the Public Records Act and the
openness of court records that are provided by statute, the Tennessee Constitution, the
common law, rules of court, and administrative rules and regulations. Tennessean v.
Metro. Gov’t of Nashville, 485 S.W.3d 857, 865 (Tenn. 2016) (“When the [Public
Records] Act was adopted in 1957, only two categories of records were excepted from
disclosure—medical records of patients in state hospitals and military records involving
the security of the nation and state. However, over the years, the General Assembly has
added over forty categories of records specifically excepted from the Act.”). In fact,
medical records enjoy broad protection from public disclosure, and the courts of this state
have long recognized the importance of keeping a patient’s medical records confidential.
Hall v. Crenshaw, 449 S.W.3d 463, 469 (Tenn. Ct. App. 2014): Stevens ex rel. Stevens v.
                                          -3-
Hickman Cmty. Health Care Servs., Inc., 418 S.W.3d 547, 558 (Tenn. 2013); McNiel v.
Cooper, 241 S.W.3d 886, 896 (Tenn. Ct. App. 2007) Alsip v. Johnson City Med. Ctr., 197
S.W.3d 722, 725 (Tenn. 2006); Givens v. Mullikin ex rel. Estate of McElwaney, 75
S.W.3d 383, 407 (Tenn. 2002).

       As explained in McNiel, “[m]aintaining the confidentiality of patient records is for
the protection of the patient[.]” 241 S.W.3d at 896 (citation omitted). Moreover, as
discussed in Hall and emphasized in Alsip:

       medical confidentiality arose from both the patient’s understanding of the
       covenant between physician and patient and the policy concerns about
       keeping private and potentially embarrassing information private, adding,
       “The relationship of patient to physician is a particularly intimate one
       [because] [t]o the physician we bare our bodies ... in confidence that what is
       seen and heard will remain unknown to others.”

Hall, 449 S.W.3d at 469 (quoting Alsip, 197 S.W.3d at 726).

        The privacy of such records is also protected by both federal and state statutes.
Medical records are deemed confidential pursuant to the Health Insurance Portability and
Accountability Act of 1996 (“HIPAA”). Tennessee statutes also protect the
confidentiality of medical records. As we noted in Givens, “the General Assembly has
enacted several statutes that expressly require a physician and others to keep a patient’s
medical records and identifying information confidential.” 75 S.W.3d at 407. One such
statute, Tenn. Code Ann. § 63–2–101(b)(1) states that medical records provided to state
agencies by medical providers “shall not constitute public records, and nothing contained
in this part shall be deemed to impair any privilege of confidentiality conferred by law on
patients, their personal representatives or heirs.”). Another, Tenn. Code Ann. § 10-7-
504(a)(1)(A), provides:

       The medical records of patients in state, county, and municipal hospitals
       and medical facilities, and the medical records of persons receiving medical
       treatment, in whole or in part, at the expense of the state, county, or
       municipality, shall be treated as confidential and shall not be open for
       inspection by members of the public.

        Because medical records are universally recognized as confidential and they are
exempted from the definition of public records, medical records and the information
contained therein do not lose their confidentiality merely because a party files another’s
records in a civil action or reads from them during a legal proceeding. See Stevens, 418
S.W.3d at 558 (“In determining whether medical records are relevant for purposes of
litigation, defendants should continue to adhere to the “minimum necessary” standard
that traditionally applies to a provider’s use and disclosure of a patient’s private health
                                            -4-
records under 45 C.F.R. § 164.502(b)(1)”). Nevertheless, a party may waive the
confidentiality of medical information by putting the party’s physical or mental condition
at issue. See Bray v. Khuri, 523 S.W.3d 619, 622 (Tenn. 2017) (“Tennessee Code
Annotated section 29-26-121(a)(2)(E) states that the notice shall include “[a] HIPAA
compliant medical authorization permitting the provider receiving the notice to obtain
complete medical records from each other provider being sent a notice.”). However, such
medical information should be made public only when it forms the basis of the trial
court’s decision or is otherwise relevant to the issues in the case. See Stevens, 418 S.W.3d
at 558 (citing Givens, 75 S.W.3d at 408; Tenn. R. Civ. P. 26.02 (“providing that parties
can obtain a wide range of materials if they are ‘relevant to the subject matter involved in
the pending action’”)). Thus, even where access is specifically permitted, public access
should be limited to those medical records that are relevant to the particular claim at
issue, not a plaintiff’s entire medical history. Id. at 558.

       The foregoing reasoning also comports with a fundamental reason for open courts,
which is “the public is entitled to assess for itself the merits of judicial decisions.” Shane
Grp., Inc., 825 F.3d at 305. As our courts have explained, “[t]he public has an interest in
ascertaining what evidence and records the District Court and this Court have relied upon
in reaching our decisions.” Id. (quoting Brown & Williamson Tobacco Corp., 710 F.2d at
1181). Conversely, if the information is both confidential and was not relied on by the
court to make a judicial decision, then the public’s right to such information is greatly
diminished.

       While Jane Doe is a plaintiff, she is acting primarily as next friend for her son,
John Doe, and her only claim is for reimbursement of tuition, not for any personal
injuries to her. This is significant because in determining whether records or information
in a court file should be sealed, one of the important factors is whether the court relied on
such information in reaching its decisions. See Shane Grp., Inc., 825 F.3d at 305. The
documents before us fail to establish that the medical records of Jane Doe pertain to any
claim she filed. They also fail to establish that the trial court relied on the medical records
of Jane Doe in making any decision. Moreover, this action was voluntarily dismissed
months ago and the only matters remaining before the trial court pertain to the alleged
contemptuous conduct of an attorney, which issue has no relevance to the medical
records of Jane Doe.

       While the information at issue here is not a medical record, it is information that
was obtained from Jane Doe’s medical records. Protecting the medical records
themselves but allowing public disclosure of their contents would provide no protection
for confidential information. Therefore, medical information obtained from a confidential
medical record retains its confidentiality unless and until the patient puts his or her
medical history at issue in a civil action or waives the confidentiality.


                                             -5-
        Because Jane Doe’s medical records and her medical history derived therefrom
constitutes confidential information and because that confidential information is not
relevant to Jane Doe’s claims and was not relied on by the trial court to make a decision
in this case, Jane Doe has established a compelling reason for sealing her medical records
and the confidential information derived therefrom. Further, the redaction of only those
few lines which reveal the confidential information is narrowly tailored to serve that
compelling reason.

        The foregoing notwithstanding, defendants assert that the application of the
plaintiffs to seal Jane Doe’s medical records and information derived therefrom should be
denied because the plaintiffs publicly disclosed in their application the very medical
history they seek to have sealed. In the original public version of their Tenn. R. App. P. 9
application, filed in accordance with Tenn. Ct. App. R. 15(d), the plaintiffs failed to
redact two key lines which reveal information about Jane Doe’s medical history.
Thereafter, the plaintiffs filed an amended public version correcting the error. Although
not initially placed under seal, we decline to disregard the confidentiality of the
information based on what amounts to a typographical error or oversight of an intended
redaction. Therefore, the clerk is directed to file the amended public version as the public
version and place the original public version under seal.

                                         CONCLUSION

        The application for permission to appeal is hereby granted.2 The portions of the
trial court’s November 1, 2018 order denying the plaintiffs’ request to seal the portions of
the February 5, 2018 order and November 9, 2017 transcript which reference Jane Doe’s
medical history are reversed and those portions of the February 5, 2018 order and
November 9, 2017 transcript shall be placed under seal. All other provisions of the
November 1, 2018 order remain in full effect.

       The plaintiffs’ motion to file portions of their application and exhibits under seal is
also granted. The unredacted documents that were filed under conditional seal in
accordance with Tenn. Ct. App. R. 15 shall remain under seal. Likewise, the original
public version of the application shall be placed under seal due to the inadvertent failure
to redact all the necessary information. The clerk shall file the amended public version of
the application as the public version under Tenn. Ct. App. R. 15(d).




       2
        Contemporaneously with this opinion, this court is also filing orders in Appeal Nos. M2018-
01611-COA-R10-CV and M2018-01975-COA-R10-CV which arise out of the same case.
                                               -6-
       The costs of this appeal are taxed to the defendants/appellees, jointly and
severally.


                                             _________________________________
                                             FRANK G. CLEMENT JR., P.J., M.S.




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