              In the United States Court of Federal Claims
                                 OFFICE OF SPECIAL MASTERS
                                        Filed: June 6, 2017
                                  Amended for Posting: June 7, 2017

*********************                                      UNPUBLISHED
A.P.,                      *
                           *                               No. 14-894v
               Petitioner, *
v.                         *                               Special Master Gowen
                           *
SECRETARY OF HEALTH        *                               Motion to Redact Public Decision;
AND HUMAN SERVICES,        *                               Motion Filed Out of Time.
                           *
               Respondent. *
*********************

Nancy R. Meyers, Ward Black Law, Greensboro, NC, for petitioner.
Lisa A. Watts, United States Department of Justice, Washington, D.C., for respondent.

         ORDER ON PETITIONER’S MOTION TO REDACT PUBLIC DECISION1

         On June 1, 2017, A.P. (“petitioner”) filed a motion to redact the decision awarding interim
attorneys’ fees and costs. Petitioner’s Motion (ECF No. 71). Because the motion was filed out of
time, it is DENIED.

    I.   Procedural History

        On September 23, 2014, petitioner, using his full name, filed a petition pursuant to the
National Vaccine Injury Compensation Program.2 Petition (ECF No. 1). Petitioner alleged that
as a result of receiving an influenza (“flu”) vaccination on October 3, 2012, he suffered small fiber
sensory Guillain-Barré syndrome (“GBS”), depression, and chronic insomnia. Petition at ¶¶1-5.

1
  Because this order contains a reasoned explanation for the undersigned’s action in this case, the
undersigned intends to post this order on the website of the United States Court of Federal Claims, in
accordance with the E-Government Act of 2002, Pub. L. No. 107-347, § 205, 116 Stat. 2899, 2913
(codified as amended at 44 U.S.C. § 3501 note (2006)). As provided by Vaccine Rule 18(b), each party
has 14 days within which to request redaction “of any information furnished by that party: (1) that is a
trade secret or commercial or financial in substance and is privileged or confidential; or (2) that includes
medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of
privacy.” Vaccine Rule 18(b).
2
  The National Vaccine Injury Compensation Program is set forth in Part 2 of the National Childhood
Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755, codified as amended, 42 U.S.C. §§
300aa-1 to 34 (2012) (“Vaccine Act” or “the Act”). All citations in this decision to individual sections of
the Vaccine Act are to 42 U.S.C.A. § 300aa.


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        On December 16, 2016, petitioner filed a motion for interim attorneys’ fees and costs,
which the undersigned granted on December 28, 2016. Decision - Interim Attorneys’ Fees and
Costs (ECF No. 53). The decision summarized petitioner’s claim and explained why interim fees
and costs were appropriate at that time. Id. at 1-2. The decision evaluated the reasonableness of
the requested fees and costs, including the costs associated with compensating two of petitioner’s
treating physicians. Id. at 3-4. The decision provided that the undersigned “intends to post this
ruling on the website of the United States Court of Federal Claims,” and “as provided by Vaccine
Rule 18(b), each party has 14 days within which to request redaction.” Id. at 1, n.1. The docket
entry specified that redactions to the decision were due by January 11, 2017. On December 29,
2016, petitioner’s counsel filed the parties’ joint notice renouncing the right to seek review of the
decision. Joint Notice (ECF No. 54). Neither party filed a motion for redaction or otherwise
contacted the Court regarding redaction. The decision was made public on January 27, 2017, and
was published on the Court’s website. Public Decision (ECF No. 59).

         On June 1, 2017, petitioner filed a motion to redact his name from the decision granting
interim attorneys’ fees and costs, pursuant to Vaccine Rule 18(b). Petitioner’s Motion (ECF No.
71). Petitioner states that he was “unaware of the Decision, given that it pertained to attorneys’
fees and costs.” Id. at 1. He states: “the decision briefly references [his] medical conditions and
lists his treatment providers, information which [he] would prefer to remain confidential given the
impact it may have on his employability and on prospective views of his suitability to treat them
as patients.” Id. For these reasons, petitioner requests to redact his name from the published
decision. Id.

        On June 2, 2017, respondent filed a response to petitioner’s motion. Respondent’s
Response (ECF No. 72). Respondent notes that petitioner’s motion is untimely. Id. at 1. Further,
“the Interim Fee decision has been publicly available for many months, seemingly negating any
benefit of redaction at this point.” Id. Respondent recommends that “the Court’s analysis 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 interim fee decision”.
Id. at 1. Respondent then “defers to the Special Master’s judgment as to whether petitioner’s
motion should be granted.” Id. at 6.

         On June 4, 2017, petitioner filed a reply. Petitioner’s Reply (ECF No. 73). Petitioner
“concurs with respondent’s deferral to the sound discretion of the special master… with respect to
petitioner’s redaction request.” Id. at 1. He acknowledges that his motion is untimely, but states
again that “given the Decision related to the award of attorneys’ fees and costs, petitioner was not
aware of the Decision or the medical information contained therein until very recently.” Id. He
states that “continued” publication of this information constitutes “a clearly unwarranted invasion
of personal privacy,” and that the petitioner and the government’s interests can be better balanced
by redacting petitioner’s name. Id. at 1-2. This matter is now ripe for adjudication.

 II.   Discussion

       A motion for redaction is governed by section 12(d)(4)(B) of the Vaccine Act. See 42
U.S.C. §300aa-12(d)(4)(B). That section provides that information concerning “medical files
and similar files” may be redacted if its disclosure “would constitute a clearly unwarranted

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invasion of privacy.” Id. What constitutes a “clearly unwarranted invasion of privacy” requires
balancing petitioner’s “right of privacy against the public purpose of the Vaccine Act.” W.C. v.
Sec’y of Health & Human Servs., 100 Fed. Cl. 440, 460 (2011), aff’d on non-relevant grounds,
704 F.3d 1352 (Fed. Cir. 2013)); see also Langland v. Sec’y of Health & Human Servs., No. 07-
36V, 2011 WL 802695 (Fed. Cl. Spec. Mstr. Feb. 3, 2011), mot. for rev. denied on non-relevant
grounds, 109 Fed. Cl. 421 (2013). While a petitioner has an interest in keeping sensitive medical
or other embarrassing information private, the public has an interest in disclosure, so as to
increase awareness of vaccines and the medical conditions they may cause. Id. at 461. In other
words, sensitive information is often the subject of the litigation, and “in cases where sensitive
information is the subject of the dispute, that information is routinely disclosed in decisions, to
enable the reader to follow and understand the decision maker’s rationale.” Castagna v. Sec’y of
Health & Human Servs., 2011 WL 4348135, *13 (Fed. Cl. Spec. Mstr., Aug. 25, 2011).

        However, a decision is not made public instantly. Under Vaccine Rule 18(b), the Court
holds a decision for 14 days to “afford each party an opportunity to object to the publication of
any information… which would constitute a clearly unwarranted invasion of privacy.” An
objecting party is required to “provide the court with a proposed redacted version of the
decision.” Vaccine Rule 18(b) clearly provides: “In the absence of an objection, the entire
decision will be made public.”

        In this case, petitioner’s motion is untimely. The decision awarding interim attorneys’ fees
and costs and the docket text made clear that any redactions were due within 14 days, no later than
January 11, 2017. See Decision - Interim Attorneys’ Fees and Costs at 1, n. 1. However, petitioner
did not file a timely motion for redaction or request an extension of time to do so. The decision
was made public on January 27, 2017, after which it was posted on the Court’s website. Petitioner
did not file a motion for redaction until over 3 months later. Petitioner acknowledges that the
motion is untimely. However, he does not adequately explain the delay or why he should be
allowed to file a motion for redaction out of time.

        Furthermore, petitioner does not show a compelling privacy interest outweighing the public
interest in keeping the public decision, as it was originally filed, on the Court’s website.
Respondent correctly notes that the decision has been publicly available for many months,
“seemingly negating any benefit of redaction at this point.” Respondent’s Response at 1.

III.   Conclusion

        For the foregoing reasons, the undersigned finds that petitioner has not demonstrated a
compelling privacy interest, greater than that of many other petitioners, which would allow him to
(1) file a motion for redaction significantly out of time, and (2) redact the decision which has
already been published on the Court’s website. Therefore, petitioner’s motion is DENIED.

       IT IS SO ORDERED.

                                                             s/Thomas L. Gowen
                                                             Thomas L. Gowen
                                                             Special Master

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