Conditionally granted in part, Denied in part, and Opinion Filed February 12, 2018




                                                                      In The
                                             Court of Appeals
                                      Fifth District of Texas at Dallas
                                                           No. 05-17-00998-CV

                                            IN RE GITA SRIVASTAVA, Relator

                          Original Proceeding from the 470th Judicial District Court
                                            Collin County, Texas
                                    Trial Court Cause No. 470-05429-2016

                                             MEMORANDUM OPINION
                                          Before Justices Lang, Myers, and Boatright
                                                  Opinion by Justice Myers
           The underlying proceeding relates to the redaction of certain information included in the

trial court records and trial transcript of bill of review proceedings relating to divorce and parental

termination proceedings. In this original proceeding, relator complains that the trial court refused

to redact certain information from the record of those proceedings that relator contends is sensitive

data requiring redaction either under Rule 21c of the rules of civil procedure or pursuant to

constitutionally-protected privacy interests. Relator seeks a writ of mandamus directing the trial

court to redact the information from the trial transcript1 and documents filed in the trial court. We

conditionally grant the writ in part and deny the writ in part.




     1
       Relator and the trial court use the term “trial transcript” to describe the court reporter’s record of testimony and argument at trial, and the
term “trial exhibits” to describe the exhibits admitted into evidence at trial. The parties have agreed to seal the trial exhibits, but disagree on what
should be redacted from the trial transcript. For consistency and to avoid confusion, we refer to the court reporter’s record of testimony and
argument at trial as the “trial transcript” rather than as the “reporter’s record.”
                                            Background

       Relator Gita Srivastava and real party in interest Andrew Greenhut were married in 2007

and, in January 2015, had a child. Srivastava filed for divorce later that year. The trial court

ultimately entered an “Agreed Order of Termination of Parent-Child Relationship” that terminated

Greenhut’s parental rights and entered an “Agreed Final Decree of Divorce.” In 2016, Greenhut

filed two separate bills of review; one challenged the parental termination order and the other

challenged the agreed final divorce decree. Srivastava moved to seal the court records in the bill

of review proceedings. And, on April 17, 2017, the trial court granted Srivastava’s motion to seal

court records. The sealing order states that “all documents bearing” either of the bill of review

cause numbers “are sealed” and “may only be released to either party, an attorney for either party,

or a staff member of an attorney for either party on that attorney’s behalf.” The trial court denied

the bills of review on June 13, 2017. The trial court then held a hearing on its own motion to

unseal the court records in the bill of review proceedings and stated that the court would unseal

the bill of review records on August 25, 2017.

       In her petition for writ of mandamus, Srivastava complained that the trial court had not

given the parties a meaningful opportunity to meet and to reach agreements on what sensitive data

should be redacted from the record. Srivastava sought a writ staying the trial court’s decision to

unseal the records until the parties are given a meaningful opportunity to review the trial transcript

and exhibits and request appropriate redactions. We stayed the trial court’s decision to unseal the

records and requested a response to the petition from Greenhut. The trial court then directed the

parties to schedule a conference with the court to review the trial exhibits and filed documents to

identify sensitive data requiring redaction. The trial court also directed the parties to schedule a

hearing for the court to rule on any contested issues relating to the requested redactions.




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        The trial court then signed an “Order on Redactions of Sensitive Data.” The redaction

order states that the parties agreed to seal the trial exhibits and agreed to file a list of trial transcript

page and line numbers that contain Rule 21c sensitive data for review by the court “and if any

exists, the sensitive data will be protected from release.” The trial court also agreed to permit

redaction of “full personal identification numbers and full financial account numbers” from the

trial transcript “due to privacy concerns,” but found that no such information appears in the

transcript. The redaction order also includes the trial court’s findings regarding Rule 21c and

unsealing the court records. Specifically, the trial court found that the family code requires the

child’s name and date of birth to be included in the court records, Rule 21c “entitles” parties to

redact sensitive data in documents filed with the court but does not require redaction of the

information from the trial transcript, Rule 76a was not followed with respect to sealing the court

records, the child was not a party to or represented by an attorney ad litem in the divorce,

termination, or bill of review proceedings, and the “orders herein are in the best interest of the

child.” The trial court ordered the court reporter to seal the trial exhibits from the bill of review

proceedings and to redact an address in the trial transcript that might be the child’s home address.

The court also ordered the district clerk to seal three specific pleadings and noted that the redacted,

substituted versions of pleadings and orders containing sensitive data had been provided to the

district clerk.

        Srivastava then filed a “Status Report Filed Under Seal” with this Court, complaining that

the redaction order did not redact all sensitive data and should be vacated or modified. We treat

the status report as an amended petition. In that status report. Srivastava asks for a writ ordering

the district court to either redact the remaining sensitive data from the trial transcript and pleadings

or order the district court to partially vacate its redaction order to the extent that order unseals the

documents containing the sensitive data. Srivastava also asks the Court to order the district court

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to partially vacate the redaction order to the extent it unseals documents from the original divorce

and termination proceedings that were sealed in those cases by agreement and attached as exhibits

to pleadings in the two bills of review. The real party in interest filed a response to Srivastava’s

“status report filed under seal,” and Srivastava filed a reply brief.

                                        Standard of Review

       To be entitled to mandamus relief, a relator must show both that the trial court has clearly

abused its discretion and that relator has no adequate appellate remedy. In re Prudential Ins. Co.,

148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). “Documents once unsealed cannot

effectively be resealed after appeal.” Upjohn Co. v. Marshall, 843 S.W.2d 203, 205 (Tex. App.—

Dallas 1992, no writ). There is, thus, no adequate remedy by appeal of an erroneous order

requesting a party to produce privileged or protected documents. In re York Risk Servs. Group,

Inc., No. 12-17-00210-CV, 2017 WL 5622951, at *2 (Tex. App.—Tyler Nov. 22, 2017, orig.

proceeding); Pittsburgh Corning Corp. v. Caldwell, 861 S.W.2d 423, 424 (Tex. App.—Houston

[14th Dist.] 1993, orig. proceeding) (“Clearly, once privileged information is disclosed, there is no

way to retrieve it; therefore, mandamus is an appropriate remedy to prevent the publication of

confidential documents.”). Mandamus is, therefore, the appropriate remedy where protected

material is ordered discoverable. In re Higgins, 246 S.W.3d 744, 745 (Tex. App.—Eastland 2007,

orig. proceeding) (citing In re Anderson, 973 S.W.2d 410, 411 (Tex. App.—Eastland 1998, orig.

proceeding)).

                                             Discussion

       Srivastava asserts three general grounds for her complaint that the trial court abused its

discretion by denying her requested redactions. First, she argues that the information sought to be

redacted but denied is sensitive data that must be redacted pursuant to Rule 21c. Second, she

argues that the information should be redacted because the information falls within her and the


                                                 –4–
child’s zone of privacy and there is no legitimate public concern for unsealing such sensitive

information. Third, Srivastava maintains that the trial court abused its discretion by lifting the

sealing order. We address each argument in turn.

A.     Redaction under Rule 21c

       Sensitive data must be redacted from documents “filed with a court” unless the information

is required to be included by a statute, rule, or administrative regulation. TEX. R. CIV. P. 21c(b).

Rule 21c(a) defines “sensitive data” as the following:

       (1) a driver's license number, passport number, social security number, tax
       identification number, or similar government-issued personal identification
       number;

       (2) a bank account number, credit card number, or other financial account number;
       and

       (3) a birth date, home address, and the name of any person who was a minor when
       the underlying suit was filed.

TEX. R. CIV. P. 21c(a)(1), (2), (3). Srivastava complains that the following information must be

redacted from some or all of the trial record pursuant to Rule 21c:

              The child’s name in pleadings, depositions, orders, and the trial transcript;

              The child’s date of birth in pleadings, depositions, orders, and the trial
               transcript;

              The name of the child’s physician in pleadings and the trial transcript;

              Discussions in the trial transcript of the real party in interest’s lists of what
               Srivastava describes as disturbing sexual and violent fantasies about
               Srivastava and the child; and

              The real party in interest’s lists of the above-mentioned fantasies, which
               were exhibits to the pleadings in the bills of review.

       Neither the name of the child’s physician nor the lists or discussions of the real party in

interest’s fantasies are defined as sensitive data under Rule 21c. As such, we conclude that Rule

21c does not require the trial court to redact the name of the child’s physician or the lists or

discussion of the real party in interest’s fantasies. We deny the petition for writ of mandamus to
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the extent Srivastava seeks a writ ordering the trial court to redact that information pursuant to

Rule 21c.

       But the child’s name and date of birth are considered sensitive data under Rule 21c. The

trial court was, therefore, required to redact the child’s name and date of birth from documents

“filed with a court” unless the information is required to be included by a statute, rule, or

administrative regulation. TEX. R. CIV. P. 21c(b). In denying the request for redaction of the

child’s name and date of birth, the trial court found “that the inclusion of the child’s name and date

of birth is specifically required by the Texas Family Code.” Srivastava avers that this finding is

based on the trial court’s belief that section 102.008(b)(2) of the family code requires the disclosure

of the child’s name and birth date in all court filings.

       Section 102.008(b)(2) requires the child’s name and date of birth to be included in a petition

in a suit affecting the parent-child relationship (SAPCR). TEX. FAM. CODE § 102.008(b)(2). Here,

Srivastava maintains that the child’s name and birth date are included in documents filed in two

bills of review and in the trial transcript and those documents do not include a SAPCR petition.

Section 102.008 is, thus, inapplicable here, and Rule 21c controls and requires the information be

redacted from any documents filed in the trial court in the bill of review proceedings. Because

Rule 21c(a)(3) defines the child’s name and date of birth as “sensitive data” and Rule 21c(b)

requires that all such sensitive data must be redacted from documents filed in the trial court, the

trial court abused its discretion by denying the request to redact the child’s name and date of birth

from documents filed in the trial court. Accordingly, we conditionally grant the petition for writ

of mandamus as to Srivastava’s request that the child’s name and date of birth be redacted from

documents that were filed in the trial court in the bill of review proceedings.

       The answer is less clear regarding whether the child’s name and date of birth must be

redacted from the trial transcript pursuant to Rule 21c(b) because it is unclear whether the trial

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transcript has been filed with the trial court. Rule 21c(b) speaks specifically to “the filing” of

documents containing sensitive data and applies to documents “filed with a court.” TEX. R. CIV. P.

21c(b). If the trial transcript has been filed with the trial court or is considered a document “filed

with a court” regardless of whether it has been physically filed, then it falls under Rule 21c(b) and

the trial court was required to grant the redaction request. But if the trial transcript has not been

filed with the trial court, then the transcript does not fall under the plain language of Rule 21c and

the trial court is not required to redact that information under Rule 21c.

       The parties do not address whether trial or hearing transcripts are subject to Rule 21c, and

we have found no authorities directly answering that question. However, a document is filed

“when it is tendered to the clerk, or otherwise put under the custody or control of the clerk”. Jamar

v. Patterson, 868 S.W.2d 318, 319 (Tex. 1993); Standard Fire Ins. Co. v. LaCoke, 585 S.W.2d

678, 680 (Tex. 1979) (“an instrument is deemed in law filed at the time it is left with the clerk,

regardless of whether or not a file mark is placed on the instrument and regardless of whether the

file mark gives some other date of filing”); see also TEX. R. CIV. P. 74 (“The filing of pleadings,

other papers and exhibits as required by these rules shall be made by filing them with the clerk of

the court”). Here, the record does not show that the trial transcript has been tendered to the clerk

or otherwise placed in the clerk’s custody or control. The trial transcript, thus, has not been “filed.”

And, although the trial transcript is the record of what happened in open court, we conclude that

the transcript, standing alone, is not currently a document filed with the court for purposes of Rule

21c. See In re M-I L.L.C., 505 S.W.3d 569, 579 (Tex. 2016) (the testimony given at a hearing is

not a court record as defined by Rule 76a and is not by itself a document “filed in connection with

any matter before any civil court”). Accordingly, we deny the petition for writ of mandamus to

the extent it seeks a writ ordering the trial court to redact the child’s name and date of birth from

the trial transcript pursuant to Rule 21c.

                                                 –7–
B.     Redaction to protect privacy concerns

       Srivastava also argues that the child’s name, date of birth, physician’s name, trial testimony

regarding Greenhut’s lists of allegedly sexual and violent fantasies, and the lists of those fantasies

should be redacted or remain sealed because the information falls within her and the child’s zone

of privacy and there is no legitimate public concern for unsealing such sensitive information.

Srivastava relies on the general law providing that the Texas Constitution protects personal privacy

from unreasonable intrusion. See, e.g., Tex. State Emps. Union v. Tex. Dept. of Mental Health &

Mental Retardation, 746 S.W.2d 203, 205 (Tex. 1987). “This right to privacy should yield only

when the government can demonstrate that an intrusion is reasonably warranted for the

achievement of a compelling governmental objective that can be achieved by no less intrusive,

more reasonable means.” Id.

       In deciding whether or not to seal court records, the trial court must “balance the public’s

interest in open court proceedings against an individual litigant’s personal or proprietary interest

in privacy.” Nguyen v. Dallas Morning News, L.P., No. 02-06-298-CV, 2008 WL 2511183, at *4

(Tex. App.—Fort Worth June 19, 2008, no pet.) (mem. op.) (quoting Gen. Tire, Inc. v. Kepple,

970 S.W.2d 520, 526 (Tex. 1998)). A trial court abuses its discretion by sealing court records if

the record does not show “a specific, serious and substantial interest which clearly outweighs this

presumption of openness. . . .” Boardman v. Elm Block Dev. Ltd. P’ship, 872 S.W.2d 297, 299

(Tex. App.—Eastland 1994, no writ). Certain personal matters fall within a “constitutionally

protected zone of privacy,” including matters related to “[m]arital relationships, procreation,

contraception, family relationships, child rearing and education, and medical records. . . .” Nguyen,

2008 WL 2511183 at *4. “Although there is a presumption under Texas law that the public has

no legitimate interest in private embarrassing facts about private citizens, whether a given matter




                                                 –8–
is of legitimate public concern depends on the factual context of each particular case, the nature of

the information, and the public’s legitimate interest in its disclosure.” Id.

        The protection of children from abuse “is of the utmost importance in Texas” and

information regarding such abuse has been found to be of legitimate public concern such that a

trial court does not abuse its discretion by refusing to seal or redact the information. Id. (trial court

did not abuse its discretion by refusing to seal personnel files that included allegations of sexual

assaults of children by a priest). Similarly, in Backes v. Misko, this Court found in an Anti-SLAPP

case that statements indicating a child may be suffering abuse related to health or safety and fell

within the statutory definition of matter of public concern. 486 S.W.3d 7, 18 (Tex. App.—Dallas

2015, pet. denied) (citing TEX. CIV. PRAC. & REM. CODE § 27.001(7)); see also Shipp v. Malouf,

439 S.W.3d 432, 438 (Tex. App.—Dallas 2014, pet. denied) (“A matter of public concern is

defined broadly; therefore, the legislature expressed its intent that the statute, enacted to protect

the right of free speech, be construed broadly”).

        Srivastava contends that the trial court abused its discretion by refusing to redact

information Srivastava believes falls within her and her child’s zone of privacy. To establish an

abuse of discretion, the relator must establish that the trial court could reasonably have reached

only one decision. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992) (orig. proceeding).

“Even if the reviewing court would have decided the issue differently, it cannot disturb the trial

court’s decision unless it is shown to be arbitrary and unreasonable.” Id. Here, the information

regarding the real party in interest’s alleged fantasies certainly sounds like information that one

would consider private and embarrassing. However, Srivastava has not provided a transcript from

the hearings regarding the redactions or a sealed copy of the information at issue. She has merely

presented her opinion that this information, as well as the physician’s name, is private and subject

to privacy protections. In light of the authorities permitting information regarding child abuse to

                                                  –9–
be unsealed and the lack of a complete record, Srivastava has not shown that the trial court could

have reached only one decision with respect to whether privacy interests clearly outweighed the

presumption of openness. See D.B. v. Rodriguez, No. 04-00-00335-CV, 2000 WL 33128680, at

*2 (Tex. App.—San Antonio Dec. 6, 2000, pet. denied) (not designated for publication) (trial court

did not abuse its discretion by denying motion to seal party’s medical records showing Hepatitis

C diagnosis). This Court may not make factual determinations regarding disputed facts or

substitute its opinion for the trial court’s opinion.      See Walker, 827 S.W.2d at 839–40.

Accordingly, we conclude that the trial court did not abuse its discretion in refusing to redact the

information pursuant to privacy concerns.

C.     Lifting of the order sealing the bill of review records

       Srivastava avers that the underlying divorce and termination proceedings were sealed by

agreement of the parties and that documents from those proceedings are part of the records in the

bill of review proceedings. She complains that the sealed records from the underlying proceedings

will be impermissibly unsealed and made public when the trial court lifts the sealing order

regarding the records from the bill of review proceedings. Srivastava has not provided a copy of

the sealing order(s) from the underlying divorce and termination proceedings or other proof that

the records from those proceedings were sealed. We deny Srivastava’s petition to the extent it

seeks a writ requiring the records from the bill of review proceedings to remain sealed or partially

sealed based on the alleged sealing of the underlying divorce and termination proceedings.

       We also deny Srivastava’s petition to the extent she argues that the trial court abused its

discretion by lifting the April 17, 2017 sealing order regarding the records of the bill of review

proceedings. Srivastava takes issue with the trial court’s findings in the redaction order that the

parties did not follow the procedures of Rule 76a to seal the bill of review proceedings and that

“the orders herein are in the best interest of the child, including the ability of the child or her


                                               –10–
representative to access these records in the future.” After denying the bills of review, the trial

court held a hearing on its own motion to unseal the court records in the bill of review proceedings.

The trial judge purportedly stated at the hearing that the court would unseal the records from the

bill of review proceedings on August 25, 2017. Srivastava has not provided this Court with a

transcript from that hearing. Without a complete record, this Court cannot determine whether the

trial court could reasonably reach only one conclusion regarding unsealing the records of the bill

of review proceedings. Accordingly, we deny the petition to the extent it seeks a writ directing

the trial court to vacate its order unsealing the records in the bill of review proceedings.

                                             Conclusion

       We conclude the petition should be granted in part and denied in part. We conditionally

grant the writ and direct the trial court to redact the child’s name and date of birth from all

documents that were filed in the trial court in the bill of review proceedings. We further direct the

trial court to issue a written order requiring those redactions be made within fifteen (15) days of

the date of this opinion. A writ will issue only if the trial court fails to comply with this opinion

and the order of this date. We deny the petition on all other grounds.




                                                    /Lana Myers/
                                                    LANA MYERS
                                                    JUSTICE




170998F.P05




                                                –11–
