Katie LAMARE, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
No. 12-312
United States Court of Federal Claims.
July 29, 2015
Reissued for Publication: October 27, 2015
124 Fed. Cl. 497
MARIAN BLANK HORN, Judge
DOJ_OPR00001219 to DOJ_OPR00001220
DOJ_OPR00001226 to DOJ_OPR00001227
DOJ_OPR00001228 to DOJ_OPR00001229
DOJ_OPR00001230 to DOJ_OPR00001231
DOJ_OPR00001237 to DOJ_OPR00001238
DOJ_OPR00001249 to DOJ_OPR00001249
DOJ_OPR00001250 to DOJ_OPR00001251
DOJ_OPR00001252 to DOJ_OPR00001253
DOJ_OPR00001263 to DOJ_OPR00001265
DOJ_OPR00001279 to DOJ_OPR00001280
DOJ_OPR00001281 to DOJ_OPR00001281
DOJ_OPR00001282 to DOJ_OPR00001283
DOJ_OPR00001284 to DOJ_OPR00001285
DOJ_OPR00001286 to DOJ_OPR00001287
DOJ_OPR00001288 to DOJ_OPR00001289
DOJ_OPR00001296 to DOJ_OPR00001298
DOJ_OPR00001332 to DOJ_OPR00001333
DOJ_OPR00001359 to DOJ_OPR00001359
Thus, with the exception of the documents just listed, all other claims of privilege are overruled and the defendant shall produce the remaining documents to the plaintiff on or before June 26, 2015.
IT IS SO ORDERED.
Voris E. Johnson, Assistant Director, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C., for the respondent. With him were Benjamin C. Mizer, Principal Deputy Assistant Attorney, Rupa Bhattacharyya, Director, Torts Branch, and Vincent J. Matanoski, Deputy Director, Torts Branch, Civil Division, United States Department of Justice, Washington, D.C.
Motion for Review; Redaction; Interim Fees Award.
ORDER
MARIAN BLANK HORN, Judge
FINDINGS OF FACT
The only issue before this court is whether or not to grant petitioner‘s request for redaction of the Special Master‘s Decision issued on December 8, 2014, denying an interim fees petition submitted by petitioner‘s attorney. On May 11, 2012, petitioner Katie Lamare filed a claim for compensation for injuries allegedly resulting from administration of the Human Papillomavirus Virus (HPV) Gardasil vaccinations, as well as attorneys’ fees and costs, under the National Vaccine Injury Compensation Program, which was established by the National Childhood Vaccine Injury Act of 1986,
On September 24, 2014, petitioner‘s counsel filed an Interim Petition for Attorney
On December 8, 2014, the Special Master issued a Decision denying the petition for interim fees and costs. The Special Master found that the decision to grant an interim fees award is within the broad discretion of the Special Master, and that an interim fees award was not appropriate at the current posture of petitioner‘s case. The Special Master indicated that petitioner has “had a hand in delaying the matter,” and that “nothing about Petitioner‘s experience with her expert suggests that an interim award is appropriate under the circumstances.” The Special Master noted that petitioner‘s expert report “is itself brief by Program standards, and appears minimally (if adequately) compliant” with the Order issued by the Special Master offering guidelines for the contents of the expert reports to be filed. The Special Master concluded that “[t]he case has not been notably litigious or difficult to prosecute,” and “[i]t is simply not evident to me that it would work an undue hardship on the Petitioner to deny her interim fee request at this time.” On January 8, 2015, a judgment was entered denying petitioner‘s request for interim attorneys’ fees and costs.
In a footnote on the first page of the Decision, the Special Master stated:
Because this decision contains a reasoned explanation for my action in this case, it will be posted on the United States Court of Federal Claims’ website, in accordance with the E-Government Act of 2002.... [H]owever, the parties may object to the decision‘s inclusion of certain kinds of confidential information. Specifically, under Vaccine Rule 18(b), each party has fourteen days within which to request redaction “of any information furnished by that party . . . that includes medical files or similar files, the disclosure of which would constitute a clearly unwarranted invasion of privacy.”3
On December 22, 2014, petitioner filed a timely Motion for Redaction of the Special Master‘s Interim Fees Decision pursuant to the Vaccine Rule 18(b). Petitioner requested that portions of the Interim Fees Decision, including her name, and/or information regarding her medical condition, be redacted. She argued that the publication of the medical information contained in the Decision denying interim fees and costs would constitute an “unwarranted invasion of petitioner‘s privacy” if disclosed. Petitioner claimed that the included information regarding her medical condition “could result in a negative impact on any future attempt at employment.” Petitioner further argued that “there is no public purpose to be gained by including the
On February 27, 2015, the Special Master denied petitioner‘s Motion for Redaction, finding that petitioner had “failed to make a proper showing that the requested information should be redacted.” According to the Special Master, petitioner had argued that disclosure “could” cause a negative impact on future employment, but did not “back up these assertions with any particularized showing that her personal circumstances or employment would cause the disclosure of such information to be more invasive or harmful to her than to other Vaccine Program petitioners.” The Special Master stated that because “Ms. Lamare has not substantiated her concern that disclosure of her name or her illnesses would be harmful to her personally or professionally,” the Motion for Redaction was denied.
On March 20, 2015, petitioner filed a Motion for Reconsideration of the Special Master‘s Order denying petitioner‘s Motion for Redaction. Petitioner argued that the Special Master did not “take notice of the particular circumstances of petitioner‘s illness, despite the fact that petitioner‘s motion explicitly explained that petitioner was concerned that disclosure of petitioner‘s identifying information ‘could result in a negative impact on any future attempt at employment.‘” Petitioner also argued that there is “no benefit to the public or public purpose in disclosing the names of injured petitioners, and the underlying opinions are not damaged by such name redactions.” In petitioner‘s Motion for Reconsideration, petitioner‘s attorney asked the Special Master to “protect this injured petitioner‘s privacy and help her secure all possible future benefits of life and liberty by granting redaction of her name and any other identifying information, and replacing her name with her initials only.”
Petitioner attached an affidavit to her Motion for Reconsideration, in which she stated:
I have experienced employment discrimination since developing [the condition] and fear that this discrimination can only get worse with public release of my medical records.... I personally have been discriminated against in my employment when I was fired from my job as a lifeguard after reporting to my supervisor that I may have been having [manifestations of the condition].
In her affidavit, petitioner broadened her redaction request to include:
any identifying information which could lead to my identification . . . my medical history . . ., my name, my mother‘s name, the names of any member of my family, my address, my date of birth, my Social Security number, the names or locations of my schools or treating physicians and any other identifying information.
The court notes that the majority of the additional redaction requests included in petitioner‘s affidavit, beyond petitioner‘s request to redact her name or medical history, are not referenced in the Special Master‘s Interim Fees Decision, which is the document currently under review by this court for a determination of whether redaction is appropriate. As noted above, in her original redaction request, petitioner only requested that “her name be replaced by her initials to protect her privacy, or in the alternative remove all medical information.”
On March 27, 2015, prior to the Special Master‘s ruling on petitioner‘s Motion for Reconsideration, petitioner also filed a Motion for Review of the Special Master‘s Order denying her Motion for Redaction in the United States Court of Federal Claims. Because her earlier-filed Motion for Reconsideration was still pending before the Special Master when the Motion for Review was filed with this court, this court remanded the case to the Special Master on April 14, 2015, and directed the Special Master to rule on the Motion for Reconsideration before this court
On May 22, 2015, the Special Master again denied petitioner‘s renewed request for redaction included in her Motion for Reconsideration. In the May 22, 2015 second denial of petitioner‘s request to redact, the Special Master indicated that Ms. Lamare‘s affidavit:
does not significantly strengthen her grounds for seeking redaction. At best, she identifies a particular occasion in which she was terminated from her job as a lifeguard after her own independent disclosure of some of the symptoms she alleges occurred after she received the HPV vaccine. That anecdote does not, however, establish that the nonredacted publication of the Interim Fees Decision would similarly cause her harm.
(emphasis in original, internal citation omitted). The Special Master asserted that “Ms. Lamare has not established that her career as a lifeguard is threatened by a glancing reference to one of her alleged symptoms in a decision otherwise having nothing to do with the merits of her claim,” and that “[s]he has similarly made no showing that her future employment is threatened.” The Special Master stated that the Interim Fees Decision “referenced Ms. Lamare‘s alleged injuries (and they are at this point only allegations—not determined-to-be-true facts) only in passing” and that “the Interim Fee Decision does not sufficiently address the facts pertinent to the merits of Ms. Lamare‘s claim to raise the kind of privacy concerns that have justified redaction in other cases.” The Special Master noted in his Order denying petitioner‘s Motion for Reconsideration that the timing of petitioner‘s request “remains premature.” According to the Special Master:
Given the above, Ms. Lamare‘s privacy interests are outweighed by the Vaccine Act‘s presumption that petitioner names should be associated with a case until it is more evident that a “clearly unwarranted” privacy invasion has been demonstrated, based upon the contents of the decision, as well as the personal circumstances of the relevant petitioner. Again—and as special masters in Langland [v. Sec‘y of Health & Human Servs., No. 07-36V, 2011 WL 802695 (Fed. Cl. Spec. Mstr. Feb 3, 2011) (unpublished), mot. for rev. denied, 109 Fed.Cl. 421 (2013)], Anderson [v. Sec‘y of Health & Human Servs., No. 08-0396V, 2014 WL 3294656 (Fed. Cl. Spec. Mstr. Jun. 4, 2014) (unpublished)], and other cases have exhaustively demonstrated through painstaking review of the Vaccine Act and its subsequent history—that presumption is woven into the Act‘s privacy provisions. Anderson, 2014 WL 3294656, at *9 (“Congress could have provided the anonymity petitioners seek. It did not“). Rare circumstances are conceivable in which a petitioner might be able to establish that even the most circumspect reference to her symptoms in an early ruling raised sufficient privacy concerns to justify redaction before a full entitlement decision—but the affidavit accompanying Ms. Lamare‘s Reconsideration Motion does not do so.
The Vaccine Rules themselves do not contemplate redaction merely because a claim alleges an injury the petitioner would prefer remain confidential—but Ms. Lamare in effect asks for the adoption of such a standard. The better approach is to maintain the practice (consistent with the Vaccine Act) of permitting redaction only after a substantive decision has been issued that discusses the petitioner‘s symptoms in sufficient detail to constitute a “clearly unwarranted” invasion of privacy.
(emphasis in original).
On May 26, 2015, after the Special Master‘s denial of petitioner‘s Motion for Reconsideration, petitioner filed a status report in this court, asking the court now to consider her earlier-filed Motion for Review. In her March 23, 2015 Motion for Review, petitioner argues that the Special Master‘s Order denying redaction is contrary to law, and that the information contained in the Special Master‘s Interim Fees Decision “constitutes medical information which if disclosed would be a clear unwarranted invasion of petitioner‘s privacy.” Petitioner argues that she has a “sound basis for having concerns that her future employment prospects may be compromised if her confidential medical condi
On June 18, 2015, the government responded to petitioner‘s Motion for Review in this court, arguing that, “petitioner has not shown that the special master‘s determinations were arbitrary, capricious, an abuse of discretion, or otherwise contrary to law.” Respondent argues that the Vaccine Act‘s “use of the term ‘clearly unwarranted invasion of privacy’ to define which information is suitable for redaction requires a petitioner to show some additional privacy interest to justify redaction of a decision,” and that petitioner has failed to do so. (quoting
DISCUSSION
Congress passed the Vaccine Act in 1986 and established a forum in which individuals who were injured by vaccines could bring claims. See generally
When a Special Master is assigned a petition for review, the Vaccine Act directs that the Special Master “shall issue a decision on such petition with respect to whether compensation is to be provided under the Program and the amount of such compensation.”
[T]he United States Court of Federal Claims shall have jurisdiction to undertake a review of the record of the proceedings and may thereafter—
(A) uphold the findings of fact and conclusions of law of the special master and sustain the special master‘s decision,
(B) set aside any findings of fact or conclusion of law of the special master found to be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law and issue its own findings of fact and conclusions of law, or
(C) remand the petition to the special master for further action in accordance with the court‘s direction.
A judge of the United States Court of Federal Claims previously interpreted jurisdiction over a decision of a Special Master not to be confined to review of the Special Master‘s decision granting or denying compensation for a vaccine injury. See Bernhardt v. Sec‘y of Health & Human Servs., 82 Fed. Cl. 287, 292 (2005). The judge determined that jurisdiction extends to all determinations of a Special Master for which relief may be sought under RCFC 60 governing relief from a judgment or order. Id. The court in Bernhardt reasoned that the Vaccine Program was established in the Court of Federal Claims by the Vaccine Act, that the Office of Special Masters is merely an “instrumentality of the court,” and that “there is nothing in the language of the [Vaccine] Act to suggest that this division of adjudicatory responsibility between court and special master was intended to suspend or displace the court‘s underlying jurisdiction under the Vaccine Act.” Id. (citing
Although this court endorses the broader view articulated in Bernhardt, such conclusion is not necessary to exercise jurisdiction over the Motion for Review currently before the court, given the United States Court of Appeals for the Federal Circuit‘s decision in Shaw v. Secretary of Health and Human Services., 609 F.3d 1372 (Fed. Cir. 2010). In Shaw, the Federal Circuit interpreted
Underlying how to approach requests for redaction is the general congressional intent that, in order to advance public health and public awareness about vaccines, and to collect and disseminate information about vaccines, including adverse reactions and injuries, Congress specifically required in the Vaccine Act that Special Masters’ decisions be made available to the public.
Pursuant to the Vaccine Act, the United States Court of Federal Claims promulgated the Vaccine Rules which govern practice before the Office of Special Masters, including a rule regarding requests for redaction of decisions issued by Special Masters. Vaccine Rule 18(b) mirrors the language of
A decision of the special master or judge will be held for 14 days to afford each party an opportunity to object to the public disclosure 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.
An objecting party must provide the court with a proposed redacted version of the decision. In the absence of an objection, the entire decision will be made public. Vaccine Rule 18(b). This Rule, like the statute, provides no specific guidance concerning the type of disclosure that constitutes a “clearly unwarranted invasion of privacy.” The decision of whether or not to redact information included in a Special Master‘s order or decision is left to the discretion of the Special Master, with an opportunity reserved to the parties “to object to public disclosure of any information furnished by that party.” Vaccine Rule 18(b).
By their very nature, cases brought under the Vaccine Act involve individual, personal, and medical information. Congress, however, did not direct that all records, orders, or decisions in Vaccine Act cases automatically should be sealed. To the contrary, Congress indicated its intention that certain types of information developed as a result of Vaccine Act litigation should be in the public domain, while also expressing a cautionary note regarding the publication of an individual‘s name. See S.Rep. No. 99-483, at 17-18 (1986) (The Senate Committee “believes that information regarding the adverse reactions to childhood vaccines including locality and State of immunization, date of the vaccination, information concerning reported symptoms, manifestation of resulting illness, disability, or injury and name of the health care provider should be a matter of public record.
In his denial of petitioner‘s Motion for Redaction, the Special Master considered whether the information he had included in his Decision to deny the interim fees request should not be disclosed because such disclosure “would constitute a clearly unwarranted invasion of privacy.” See
In their briefs to this court on petitioner‘s Motion for Review, petitioner and respondent both reference two of the most frequently cited cases on this issue, W.C. v. Secretary of Health and Human Services, 100 Fed.Cl. 440 (2011) (a decision issued by a judge of the Court of Federal Claims), aff‘d, 704 F.3d 1352 (Fed. Cir. 2013), and Langland v. Secretary of Health and Human Services, No. 07-36V, 2011 WL 802695 (Fed.Cl.Spec.Mstr. Feb. 3, 2011) (unpublished), mot. for rev. denied, 109 Fed.Cl. 421 (2013) (a decision issued by a Special Master), which offer two distinct approaches to requests for redaction of a Special Master‘s decision on the merits of a petitioner‘s entitlement claim. In W.C. v. Secretary of Health and Human Services, the Special Master denied the Motion to Redact, arguing that there is a common law right to public access to judicial files. See W.C. v. Sec‘y of Health & Human Servs., 100 Fed.Cl. at 459-60. The reviewing United States Court of Federal Claims judge declined to defer to the discretion exercised by the Special Master in the decision on redaction, finding that the case involved an issue of statutory interpretation and, therefore, was subject to de novo review. See id. at 457. The judge indicated that:
Notwithstanding the fact that the special master‘s Redaction Decision turned virtually entirely upon issues of statutory interpretation, the government urges the court to regard the special master‘s decision to deny redaction as an exercise of discretion. The court cannot accept this contention by the government. It is axiomatic that the court “owe[s] no deference to the special master on questions of law.” Statutory construction is a matter of law, reviewed de novo. In the circumstances of this case, the court treats the issue of redaction as a question of law with a relatively minimal attendant question of applying law to the facts.
Id. (internal citations omitted). The W.C. judge compared the privacy provisions of the Vaccine Act to provisions in the Freedom of Information Act (FOIA). See
In Langland v. Secretary of Health and Human Services,5 the petitioners requested redaction of all medical information, or in the alternative, redaction of their names and their injured minor child‘s name, as well as other identifying information, from the Special Master‘s decision denying compensation under the Vaccine Act. Langland v. Sec‘y of Health & Human Servs., 2011 WL 802695, at *1. The Special Master in Langland denied the request to redact medical information and denied redaction of identifying information for the minor‘s parents. Id. at *11. In accordance with RCFC 5.2, however, the Special Master redacted the minor petitioner‘s name to initials and the child‘s birth date to the birth year. Id. at *10. The Special Master noted that section 12(b)(2) of the Vaccine Act requires the Secretary of Health and Human Services to publish all vaccine claims in the Federal Register. Id. at *6. The Special Master further indicated in Langland that Congress specifically ensured that all information submitted in the course of adjudication of a vaccine claim would be protected, see
In his Order denying petitioner‘s Motion for Redaction of his Interim Fees Decision, the Special Master in Ms. Lamare‘s case briefly discussed both W.C. and Langland. While he recognized that the two cases presented inconsistent results, the Special Master concluded, “I need not, however, harmonize these two competing authorities, or conclusively adopt one or the other in ruling on Ms. Lamare‘s motion—for I find that under either approach, Petitioner has failed to make a proper showing that the requested information should be redacted.” The Special Master also stated that decisions by the Court of Federal Claims, such as W.C., are not binding on the Special Masters, and argued that even when a Special Master follows the lenient standard for redaction set forth in W.C., requests for redaction have been denied because they failed to substantiate the basis for the request.
In his Order denying petitioner‘s Motion for Reconsideration, the Special Master repeated much of the language discussing the two competing authorities he had discussed in his previous Order denying the original Motion for Redaction. The Special Master stated that “even though W.C. and Langland remain in opposition, they are alike in a critical respect: both require a petitioner to make some kind of affirmative showing to establish the purported privacy interest threatened by publication of names or facts about a petitioner‘s medical history in an entitlement decision.” The Special Master distinguished W.C. from the current case by stating that in W.C., the petitioner requesting redaction of his name explained that he regularly testified as a government expert in other legal proceedings, and was thus reasonably concerned that disclosure of facts relating to his illness would, if linked to his name, potentially provide grounds for attacking his credibility as an expert—thus harming him professionally and economically.
The Special Master also distinguished both W.C. and Langland from petitioner‘s case in that W.C. and Langland both involved redaction of entitlement decisions “in which the petitioner‘s claim had been discussed in great detail in the process of determining the petitioner‘s ultimate right to compensation.” The Special Master noted that he was “unaware of any other published decisions or orders granting a request to redact under such circumstances” as those in the instant case, which involve an interim decision, as opposed to a final entitlement decision.
In the above captioned case, the Special Master exercised his discretion to deny petitioner‘s redaction request. The Special Master‘s decision not to redact petitioner‘s name or medical information included in his Decision denying interim fees and costs is not contrary to binding law or precedent of the United States Supreme Court, the United States Court of Appeals for the Federal Circuit, or the United States Court of Federal Claims. His decision also does not violate any provisions of the Vaccine Act, the Vaccine Rules, or the Rules of this court. The Special Master based his decision on what he deemed the petitioner‘s failure to provide sufficient cause to justify redaction. See, e.g., Anderson v. Sec‘y of Health & Human Servs., No. 08-0396V, 2014 WL 3294656, at *5 (Fed. Cl. Spec. Mstr. Jun. 4, 2014) (denying redaction because petitioner desired anonymity but did not provide a sufficient reason for redaction) (unpublished); Eisler v. Sec‘y of Health & Human Servs., No. 10-786V, 2013 WL 221522, at *4 (Fed. Cl. Spec. Mstr. Jan. 11, 2013) (denying redaction when petitioner argued that she did not want her estranged father to learn about her compensation award, finding that petitioner‘s concerns were only speculative and not sufficient for redaction) (unpublished); House v. Sec‘y of Health & Human Servs., No. 99-406V, 2012 WL 402040, at *6 (Fed. Cl. Spec. Mstr. Jan 11, 2012) (denying redaction because petitioner failed to identify a specific reason for redaction) (unpublished); Pearson v. Sec‘y of Health & Human Servs., No. 032751V, 2011 WL 4863717, at *5 (Fed. Cl. Spec. Mstr. Sept. 22, 2011) (denying redaction when petitioner claimed he did not want his name and award information disclosed, finding that the request for anonymity without justification was not sufficient for redaction) (unpublished); Castagna v. Sec‘y of Health & Human Servs., No. 99-411V, 2011 WL 4348135, at *14 (Fed. Cl. Spec. Mstr. Aug. 25, 2011) (denying redaction because petitioner failed to identify a specific reason for redaction beyond a preference for privacy) (unpublished).
Although judges of the Court of Federal Claims and the Vaccine Special Masters have allowed redaction of individual identifying information in cases such as Ms. Lamare‘s involving an individual‘s concern regarding current and future employment, the Special Master based his Decision on what he perceived to be an unsubstantiated request for redaction by Ms. Lamare. See, e.g., W.C. v. Sec‘y of Health & Human Servs., 100 Fed.Cl. at 461; see also C.S. v. Sec‘y of Health & Human Servs., No. 07-293V, 2013 WL 4780019, at *5 (Fed. Cl. Spec. Mstr. Aug. 19, 2013) (finding that an individual‘s concern that disclosure of his condition could jeopardize his effectiveness at his job outweighed public interest in disclosure and was sufficient to justify redaction of his name to his initials) (unpublished); A.K. v. Sec‘y of Health & Human Servs., No. 09-605V, 2013 WL 322918, at *2 (Fed. Cl. Spec. Mstr. Jan. 17, 2013) (finding that petitioner‘s concern that disclosure of her inflammatory arthritis could affect her candidacy with future employers was a sufficient reason to redact her name to her initials) (unpublished). The issuance of some decisions allowing redaction because of concerns about future employment impact, however, does not mandate a Special Master to consider employment concerns as requiring redaction. Each Special Master must review every case and exercise his or her discretion, given the specific facts presented in that particular case.
If the undersigned had been the original reviewer of petitioner‘s Interim Petition for Attorney Fees and Costs, the court would not have included the medical information the Special Master gratuitously inserted at the beginning of his Interim Fees Decision, which denied the petitioner‘s request for such fees and costs. The medical information included by the Special Master was not of any relevance to the reasoning offered in support of his rejection of the interim fees and costs award, and his Decision on the subject of interim fees and costs does not further the purposes of the Vaccine Act to disseminate medical information. See H.R. Rep. No. 99-908 (1986), reprinted in 1986 U.S.C.C.A.N. 6344, 6344 (stating that the purpose of the Vaccine Act is to advance public health and awareness through collection and dissemination of information about vaccines, including adverse reactions and injuries). Moreover, the undersigned would not have chosen the words the Special Master used, twice characterizing his reference to petitioner‘s medical information as a “glancing reference to one of her alleged symptoms” in his Order Denying Motion for Reconsideration. Nonetheless, the court does not find that the Special Master abused his discretion to deny petitioner‘s requests for redaction of the Special Master‘s Interim Fees Decision. Petitioner‘s independent disclosure of her condition to her employer suggests that she is responsible for managing her condition and weakens her claim that her primary concern is that employers might find out from public court documents that she has a medical condition. Moreover, the Special Master left the door open in his Order denying the Motion for Redaction and his Order denying the Motion for Reconsideration to a future request to redact medical information or other information from the record and future opinions, once the case has progressed further. The Special Master explained his standard, stating that redaction may be appropriate if petitioner offers a “particularized showing that her personal circumstances or employment would cause the disclosure of such information to be more invasive or harmful to her than to other Vaccine Program petitioners,” or “after a substantive
Given what appears to be an unnecessary reference to petitioner‘s medical information in the Interim Fees Decision, in which the medical information is not germane to the subject of the Decision, the court reluctantly denies petitioner‘s request for redaction. The court believes that the inclusion by the Special Master of the medical information in his Decision denying interim fees and costs is unfortunate, but his refusal to redact cannot be determined to be obviously arbitrary and capricious. As noted above, the medical descriptions the Special Master included in his interim fees and costs Decision offer no valuable, substantive, or relevant information to serve the purposes of the Vaccine Act to gather and disseminate information regarding adverse reactions to vaccines, nor is it in any way necessary or helpful to allow a reader to understand his Interim Fees Decision. Although not directing the Special Master to redact his Interim Fees Decision, the court strongly urges the Special Master to reconsider his refusal to do so, and to consider redacting the medical information before the Special Master‘s Interim Fees Decision and related documents submitted and decided as part of the Special Master‘s consideration of the Motion for Redaction and the Motion for Reconsideration are released to the public, which, after investigation, it appears has not yet occurred.
Different considerations may or may not be relevant when the Special Master issues a decision on the merits of petitioner‘s case. This court addresses only petitioner‘s request with respect to the Special Master‘s Interim Fees Decision and subsequent litigation regarding that Decision.
CONCLUSION
Petitioner‘s Motion for Review of the Special Master‘s Order denying petitioner‘s Motion for Redaction, dated March 27, 2015, is, reluctantly, DENIED.
IT IS SO ORDERED.
Jacqueline HUNT, legal guardian of a minor child, Elijah McLeod, Petitioner, v. SECRETARY OF HEALTH AND HUMAN SERVICES, Respondent.
No. 12-232V
United States Court of Federal Claims.
Filed Under Seal: August 13, 2015
Reissued for Publication: August 31, 2015 *
MARIAN BLANK HORN
UNITED STATES JUDGE
Notes
any identifying information which could lead to my identification . . . my medical history . . ., my name, my mother‘s name, the names of any member of my family, my address, my date of birth, my Social Security number, the names or locations of my schools or treating physicians and any other identifying information.
(a) Redacted Filings. Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual‘s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, or a financial-account number, a party or nonparty making the filing may include only: (1) the last four digits of the social-security number and taxpayer-identification number; (2) the year of the individual‘s birth; (3) the minor‘s initials; and (4) the last four digits of the financial-account number.RCFC 5.2(a). (emphasis in original). Ms. Lamare was not a minor at the time her case was filed, and, therefore, redaction of her name is not required under RCFC 5.2.