                                                                     REISSUED FOR PUBLICATION
                                                                               NOV 25, 2019
                                                                                  OSM
                                                                      U.S. COURT OF FEDERAL CLAIMS
        3Jn tbe fflntteb $)tates <!Court of .ff eberal <!Claims
                               OFFICE OF SPECIAL MASTERS
                                          No.19-628V
                                    Filed: October 31, 2019

 ************* * *
 S.A. and H.A., Parents ofA.A., on behalf       *      UNPUBLISHED
 ofA.A.,                                        *
                                                *      Motion for Redaction;
                Petitioner,                     *      42 U.S.C. § 300aa-12(d)(4)(B)
 v.                                             *
                                                *
 SECRETARY OF HEALTH                            *
 AND HUMAN SERVICES,                            *
                                                *
                Respondent.
 ************* * *
Prose, Evanston, IL for petitioners.
Althea Davis, Esq., U.S. Dept. of Justice, Washington, DC, for respondent.

                    ORDER ON PETITIONERS' MOTION TO REDACT

Roth, Special Master:

        Petitioners filed their petition on April 22, 2019. On May 1, 2019, an initial order was
issued directing petitioners to contact the Court within approximately 45 days to discuss their case.
On May 3, 2019, petitioners filed a supplement to their petition, several medical records, and a
Statement of Completion. Petitioners' Exhibits ("Pet. Ex.") 1-16.

         On May 26, 2019, petitioners contacted my Chambers via email and advised that they are
in the process of obtaining 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 extending petitioners' deadline to file a status report advising on their progress in obtaining
representation to September 19, 2019. Petitioners were cautioned that if they failed to meet this
deadline, an order to 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 of their 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.
         On October 8, 2019, petitioners timely filed a Motion to Redact. In their motion, 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 identifiable to the petitioner when linked to his parents' names and therefore
do not adequately protect his 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 Court redact their full names and A.A's initials and diagnoses.

        On October 21, 2019, respondent filed a response to petitioners' motion. Respondent
submitted that "the analysis here should focus on whether redaction of the requested information
strikes an appropriate balance between petitioner's privacy interest in the information and the
public's interest in the Decision." Respondent ultimately deferred to my discretion as to whether
petitioners' motion should be granted.

       Petitioner did not file a reply. Petitioners' motion is now ripe for ruling.

                               I. Petitioner's Motion for Redaction

A.     Legal Authority

        Members of the 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 of the 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 of judicial decisions should apply to Program cases.
Castagna v. Sec'y of Health and Human Servs., No. 99-411 V, 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 and Human Servs., 2014 WL
3294656 at *3. In some circumstances, courts seal or redact their decisions. However, it should be
noted that the preferences of the parties about public access to decisions are not binding. Reidel!
v. United States, 47 Fed. Cl. 209 (2000) (declining to vacate the underlying decision as the parties
had requested 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 of all
written opinions issued by the court." E-Government Act § 205(a). To implement this law, the
Court of Federal Claims added RCFC 5.2, which allows for redactions of electronic filings that
contain social security numbers, taxpayer-identification numbers, birth dates, account numbers, or
the name of a minor. RCFC 5 .2( a). See also Pearson v. Sec '.Y ofDep 't ofHealth and Human Servs.,
No. 03-2751 V, 2011 WL 4863717, at *3 (Fed. Cl. Spec. Mstr. Sept. 22, 2011).

       Section 12(d)(4)(B) of the Vaccine Act governs redactions. It states:




                                                  2
       A decision of a special master in a proceeding shall be disclosed, except that if the 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 of which would constitute a
                clearly unwarranted invasion of privacy,
       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 Court of Appeals for the Federal Circuit has yet to interpret this provision, meaning that 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 of binding precedent, special masters have generally not favored redactions,
although there are some notable exceptions. Special masters are often more lenient in granting
requests for redaction in cases involving minors. All other redactions are based upon a petitioner'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 disclosed to the public. 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 of Program decisions is necessary so that
future petitioners can see what types of cases are meritorious.

        In Langland, the petitioners requested the redaction of either all medical information or all
identifying information. The then-Chief Special Master denied the petitioners' request, ruling that
special masters may only redact medical information "if the requesting party can show that
disclosure would be an invasion of privacy, and that that invasion would be 'clearly unwarranted."'
Langland v. Sec'y of Health and Human Servs., No. 07-36V, 2011 WL 802695, at *6 (Fed. Cl.
Spec. Mstr. Feb. 3, 2011). The then-Chief Special Master found that "the context of the statutory
structure" and the "emphatic language" employed by Congress in§ 12(d)(4)(B) mean that "a party
requesting redaction of medical 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 and Human Servs.,
No. 08-396V, 2014 WL 3294656 (Fed. Cl. Spec. Mstr. June 4, 2014).


                                                  3
     2. Rulings Granting Redaction

       Although recently special masters have generally followed the Langland approach, on
occasion, special masters and judges have found redactions to be warranted. In WC., the special
master initially denied petitioner's motion to redact. On review, a judge of the Court of Federal
Claims reversed. The court determined that, given their similarities, the Vaccine Act's privacy
provisions should be read in concert with the Freedom of Information 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 and Human Servs., 100 Fed. Cl. 440, 456-61 (2011 ).

        The petitioner in WC. presented unique circumstances. He argued that disclosure of his
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 position required
him to testify on behalf of the government. He was concerned that public disclosure of his medical
condition could discredit his testimony. Id. at 44 7. The court found that redaction of petitioner'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 petitioner when linked to his parents' names and therefore do not
adequately protect his medical privacy/diagnosis of 'immune dysfunction, reactive airway disease,
asthma."' Petitioners further requested that if it was not possible to redact of the requested
information, that the Court redact their full names and A.A's initials and diagnoses.

        While section 12(d)( 4)(B) requires decisions of special masters to be disclosed, it has been
the Program's practice to also publish certain rulings and orders even if they 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 of a 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'y ofHealth & 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).



                                                  4
        I would like to clarify for petitioners that Vaccine Program cases are filed under seal;
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 Langland requires 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 not narrowly tailored. Moreover, a mere desire to maintain privacy 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 of disclosure 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 published 1 thirty-five days after this Order is issued.

        The Clerk's Office is directed to send this decision to petitioners at the following address
via certified and regular mail.




         IT IS SO ORDERED.

         DATE:      t 0/3J /1ep·
                             I




1 When this Order on Petitioners' Motion to Redact is published, petitioners' names will be redacted to their initials

and their full names and address contained in the order will be fully redacted.

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