Motion for Review Denial – Refusal to Redact Name or Medical Condition


Lamare v. HHS, (Fed. Cl. Jul. 29, 2015) (Horn, J)

In an interim fees decision, the special master had included information regarding the Petitioner’s medical condition.  As Petitioner was an adult, the case style reflected her full name.  Petitioner filed a motion to redact the Petitioner’s name and replace it with her initials, or alternatively to redact her medical condition.  Respondent did not oppose the motion but deferred to the special master’s judgment.

The special master denied the motion to redact, holding that the Petitioner had not substantiated her concern that disclosure of her name or her illnesses would be harmful to her personally or professionally.

The Vaccine Act provides that “A decision of a special master . . . in a proceeding shall be disclosed,” subject to limited exceptions for certain types of information, such as “trade secret or commercial or financial information which is privileged and confidential,” 42 U.S.C. § 300aa-12(d)(4)(B)(i), and “medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of privacy.” 42 U.S.C. § 300aa-12(d)(4)(B)(ii).   Congress, however, did not specify when the disclosure of such information would constitute a “clearly unwarranted invasion of privacy.”

Apparently, Congress did not contemplate that Vaccine Petitioners’ names would be made public.  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. But the Committee does not believe that the name of the individual who suffered an adverse reaction need be available to the public and the bill contains a prohibition against releasing information which may identify the individual to the general public.”) (emphasis supplied).

According to the statute, the only time that a petitioner’s name generally is made public is when a petitioner’s name is included in the Federal Register upon the filing of a petition, in which instance no substantive medical information is included in the posting. See 42 U.S.C. § 300a-12(b)(2).  The Vaccine Act, as passed, also does not direct that a petitioner’s name or medical information must be included in all Decisions or Orders issued by a Special Master.

The E-Government Act of 2002, Pub. L. No. 107-347, 116 Stat. 2899 (2002), instructs the federal judiciary to make records available to the public electronically, but it also recognizes that some information should not be publicly disclosed.  Included in the list of information a party may exclude from its filings is the name of an individual known to be a minor, which should be replaced with initials.

The reviewing judge observed that “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).

Nevertheless, the Court denied the motion for review:

“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.”

Surprisingly, the reviewing judge then went on to “strongly urge” the Special Master to reconsider his ruling and reconsider redacting the medical information before the decisions are released to the public.

The reviewing judge did note that different considerations may or may not be relevant in cases on entitlement, as opposed to fees.

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