The U.S. judicial system is admired around the world due to the openness and transparency of judicial proceedings. Courtrooms are open to the public, and the pleadings and evidence introduced in court cases are considered public records.[1]
That presumption is founded on the public’s right to monitor the courts in order to assure their integrity.[2]
The right to complete public access is the norm, and may only be limited where it is shown that disclosure would result in a clearly defined and serious injury.[3]
That right includes the public’s right to inspect and copy all court documents.
However, that right is not absolute, and there are recognized limited circumstances that permit documents such as sensitive medical records to be shielded from public disclosure.
With the advent of electronic filing and computer access to court records from anywhere in the world, access to court filings has become easier, with the attendant risk of identity theft.
Consequently, the Federal Rules of Civil Procedure were amended in 2007 to include a rule providing privacy protections with respect to certain court filings.
Federal Rule of Civil Procedure 5.2[4] requires that all court filings redact Social Security numbers, and only the year of birth, rather than an exact birthdate, may be provided.
The rule further requires that minors shall be identified only by their initials.[5]
Another section of Rule 5.2 states that remote access to electronic files shall not be available for Social Security benefit and immigration cases,[6] with access limited only to the courthouse where the matter is pending.
According to the advisory committee notes accompanying Rule 5.2, Social Security administrative records “are entitled to special protection due to the prevalence of sensitive information and the volume of filings.”
Finally, Rule 5.2 allows for filings to be made under seal without redaction in exceptional circumstances.[7]
Rule 5.2 is frequently invoked in Employee Retirement Income Security Act cases involving health or disability benefits, where the benefit claim file is filled with extensive medical records.
A ruling issued on March 4 by the U.S. District Court for the Southern District of Ohio in Price v. Hartford Life and Accident Insurance Co.[8] addressed the question of whether such records may be filed under seal.
Price involved a claim for long-term disability benefits brought under the ERISA statute.
The defendant in Price requested the court to seal the record, without objection from the plaintiff.
The grounds asserted for sealing the claim file were that the file contained
voluminous medical records of Plaintiff and several other documents containing personal identifiers, sensitive medical information, financial information, and other confidential and private information relating to Plaintiff.
The motion further maintained the sensitive material was “so intertwined and pervasive that selective redactions would leave little of value to the public’s interest.”
The court agreed, explaining the “strong policy and interest in protecting the non-disclosure of private health and medical information outweighs any public interest in disclosure.”[9] Thus, the court ordered the record sealed.
Price is by no means the only case on this issue.
The U.S. Court of Appeals for the Tenth Circuit applied the same rationale in 2011 when it upheld the sealing of medical records and personal information in Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey,[10] an ERISA case involving a minor that challenged a denial of health insurance benefits.
While recognizing the presumption against sealing records, the court noted that virtually every record in the file “includes the name of, and/or personal and private medical information relating to, Mr. S.’s minor son,” and thus justified maintaining the records under seal.
Similar rulings applied the same rationale in granting applications to seal the claim record in disability benefit cases:
- The U.S. District Court for the Southern District of California’s 2010 ruling in Sullivan v. Deutsche Bank Americas Holding Corp.; and
- The U.S. District Court for the Eastern District of California’s 2012 ruling in Sullivan v. Prudential Insurance Co. of America.[11]
And although the U.S. District Court for the District of Oregon in 2018 denied a disability benefit claimant the right to sue anonymously in A.G. v. Unum Life Insurance Co. of America,[12] later that same year, in Gary v. Unum Life Insurance,[13] it subsequently held that a claimant’s right to maintain her privacy in her medical records, especially mental health records, outweighed the public’s right to know.
The court added that a prospective plaintiff “should not have to sacrifice” the privacy inherent in those records in order to bring a lawsuit.
Other courts have refused applications to seal ERISA claim records, though.
In Boettcher v. Metropolitan Life Insurance Co.,[14] the U.S. District Court for the Eastern District of Wisconsin in 2009 did not question why the plaintiff would want to keep his medical records private.
However, the court determined that “by placing his medical condition at issue in a civil lawsuit, Plaintiff has waived his right to keep his condition confidential.”
The court also expressed concern that sealing the record “would deprive the public of the ability to assess the reasonableness of the court’s decision.”
In a second case, Nash v. Life Insurance Co. of North America, brought in the Southern District of California,[15] the parties sought to seal a disability benefit claim file rather than redact personal information.
However, the court in 2010 rejected the parties’ contention that it would be impracticable to redact identifying information in a 4,500-page claim record.
While the court acknowledged it would be burdensome to redact the personal identifying information, the court found that such a burden was “not a ‘compelling reason’ to override the public’s right of access to court records.”
A different judge in that district came to the same conclusion more recently in March 2021, in Dioquino v. United of Omaha Life Insurance Co., [16] reiterating the rationale that the plaintiff put her medical condition at issue.
The decision to seal records in a court proceeding should not be taken lightly for the reasons articulated above. Potential reputational harm is not considered a sufficient reason to overcome the strong common law presumption in favor of public access.[17]
Thus, before public access to court records is limited, the court must articulate the interests contrary to the public’s right to know and provide an explanation for sealing records — demonstrating, according to the U.S. Supreme Court’s 1984 Press-Enterprise Co. v. Superior Court of California decision, “that closure is essential to preserve higher values and is narrowly tailored to serve that interest.”[18]
Courts that have sealed claim files in ERISA cases have done so thoughtfully and with good reason.
First, ERISA claim records consist mostly of medical records and are often thousands of pages in length, permeated with personal identifying information, such as dates of birth.
The most meticulous effort to scrub such information from claim records is beyond a herculean task and is close to impossible since the information does not necessarily appear in the same place on every page, and can even appear in multiple places on the same page.
Identity theft is rampant nowadays, and the ease with which court records can be downloaded heightens such risks.
More importantly, though, the records in disability and health insurance cases often include psychiatric and psychotherapy records, and even when they don’t, medical records often include highly private and personal information that may have nothing whatsoever to do with the issue in question.
The same rationale that limits access to Social Security records — i.e., the prevalence of sensitive information — should apply to ERISA claim files that are similar in nature.
The parties’ briefs and the courts’ rulings can incorporate necessary information ensuring the transparency of the proceedings, but the need to maintain such openness does not necessitate that the records themselves be generally available to anyone possessing a computer and internet access.
Thus, the approach taken by the court in Price, and in other cases that have ruled similarly, have appropriately balanced the public’s right to access against a private litigant’s right to maintain some semblance of privacy, even though filing a lawsuit and placing one’s medical condition in the public sphere surrenders other privacy rights.
Mark DeBofsky is a shareholder at DeBofsky Law.
This article was first published by Law 360 on March 28, 2022.
[1] See, Publicker Industries, Inc. v. Cohen 733 F.2d 1059, 1071 (3d Cir. 1984).
[2] See, Matter of Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984).
[3] Id.; Stamicarbon N.V. v. American Cyanamid Co., 506 F.2d 532, 539-42 (2d Cir. 1974) (good cause is shown where a party seeks to protect its interest in confidential commercial information like a trade secret).
[4] Federal Rule of Civil Procedure 5.2.
[5] Rule 5.2(a).
[6] Rule 5.2(c).
[7] Rule 5.2(d).
[8] Price v. Hartford Life and Accident Insurance Co., 2022 U.S. Dist. LEXIS 38282, 2022 WL 656613 (S.D. Ohio March 4, 2022).
[9] Columbia Gas Transmission, LLC v. 171.54 Acres of Land, 2021 WL 4260422, at *2, 2021 U.S. Dist. LEXIS 178206 (S.D. Ohio Sept. 20, 2021).
[10] Eugene S. v. Horizon Blue Cross Blue Shield of New Jersey, 663 F.3d 1124, 1135–36 (10th Cir. 2011).
[11] Sullivan v. Deutsche Bank Americas Holding Corp., 2010 U.S.Dist.LEXIS 94908 (S.D.Cal. September 13, 2010); Sullivan v. Prudential Ins.Co. of America, 2012 U.S.Dist.LEXIS 123269 (E.D.Cal. August 29, 2012).
[12] A.G. v. Unum Life Insur. Co., 2018 U.S.Dist. LEXIS 24752 (D. Ore. February 14, 2018).
[13] Gary v. Unum Life Ins. Co. of Am., 2018 U.S.Dist. LEXIS 64186 *8, 2018 WL 1811470 (D. Ore. April 17, 2018).
[14] Boettcher v. Metro. Life Insurance Co., 2009 U.S.Dist.LEXIS 19405 (E.D. Wisc. February 25, 2009).
[15] Nash v. Life Ins.Co. of North America, 2010 U.S.Dist.LEXIS 50089 (S.D.Cal. May 18, 2010).
[16] Dioquino v. United of Omaha Life Insurance Co., 2021 WL 873286 (S.D. Cal. March 9, 2021).
[17] See, Wilson v. American Motors Corp., 759 F.2d 1568, 1570-71 (11th Cir. 1985).
[18] Press-Enterprise Co. v. Superior Court of California, Riverside County, 464 U.S. 501, 510 (1984).
