Ninth Circuit rejects Hawaii rule to seal all medical records in court filings

A three-judge panel found that the public has a presumptive First Amendment right to see medical and health records attached to court filings, such as mental competency examinations.

by Hillel Aron, Court House News, August 28, 2024

A Ninth Circuit panel ruled Wednesday that Hawaii state courts can't require all medical and health records to be filed under seal.

"This mandatory, categorical sealing requirement applies regardless of whether a party is filing their own medical or health record, whether that record has already been made public, and whether the subject of the record believes sealing is necessary to protect any private information contained therein," U.S. Circuit Judge Richard Paez, a Bill Clinton appointee, wrote for the three-judge panel.

He added: "Because the First Amendment grants the public the presumptive right to access a substantial portion of the
records sealed under the challenged provision, and defendants have not articulated a compelling governmental interest sufficient to rebut the presumption of openness as to those records, we conclude that a substantial proportion of the challenged provision’s applications encroach on the public’s right to access these records, such that the provision is unconstitutionally overbroad."

The ruling stems from a lawsuit filed in 2022 by the Civil Beat Law Center for the Public Interest — since renamed the Public First Law Center — a Hawaii-based public interest law firm dedicated to open government and transparency. The firm had been trying to unseal court-ordered competency evaluations of a man who'd been charged with assault and who claimed to have been hearing voices in his head, but was deemed fit to stand trial. After the man's convictions vacated, Public First sued the Chief Court Administrators of the Hawaii state courts, challenging the mandatory sealing provision as overbroad and in violation of the First Amendment.

A federal judge found for the state on summary judgment, finding the public has no "presumptive First Amendment right" to medical records, and that requiring a separate motion to seal medical records, in the future, would overburden the courts.

The Ninth Circuit disagreed. Whereas the lower court had found there to be no historical examples “of an individual's medical records, such as a doctor’s treating notes, being open to the general public,” the three-judge appellate panel thought that focus was too narrow.

"Given the range of criminal and civil legal proceedings and records to which the First Amendment grants the public a presumptive right of access, a substantial proportion of the challenged provision’s sweep reaches records protected by that right," Paez wrote, adding that "selective redaction" would be enough to protect privacy rights in most cases.

The panel was similarly unpersuaded by the argument that individual motions to seal would overburden the courts, with Paez finding "those courts are in the best position to evaluate whether the records at issue must, in fact, be sealed to protect any asserted privacy interest."

The Hawaii Attorney General's Office did not respond to a request for comment by press time. But Brian Black, executive director of the Public First Law Center, praised the ruling.

"Issues of privacy and public access are complex and require more careful consideration than a blanket rule that seals an entire category of documents in every case," Black said in a statement. "This decision ensures that a judge will consider the presumption of public access on a case-by-case basis before court records may be sealed.”

U.S. Circuit Judges Milan Smith Jr. and Lucy Koh, George W. Bush and Joe Biden appointees, respectively, joined the opinion.

---30---

Volokh: Hawaii Law Mandating Sealing of All "Medical and Health Records" Unconstitutional