Demitor v. Secretary of Health and Human Services ( 2021 )

REISSUED FOR PUBLICATION
JAN 12 2021
OSM
U.S.COURT OF FEDERAL CLAIMS
In the United States Court of Federal Claims
OFFICE OF SPECIAL MASTERS
No. 17-564V
Filed: December 4, 2020
UNPUBLISHED
SUZANNE DEMITOR,
Special Master Horner
Petitioner,
v. Motion to Redact; Vaccine
Rule18(b); Vaccine Act Section
SECRETARY OF HEALTH AND 12(d)(4)
HUMAN SERVICES,
Respondent.
Suzanne Demitor, Walla Walla, WA, pro se.
Kimberly Shubert Davey, U.S. Department of Justice, Washington, DC, for respondent.
Order on Motion to Redact1
On April 25, 2017, petitioner filed a petition under the National Childhood Vaccine
Injury Act, 42 U.S.C. § 300aa-10-34 (2012). A decision dismissing petitioner’s claim
was issued October 9, 2020, and judgment later entered on November 19, 2020,
following the denial of a motion for review. On October 27, 2020, petitioner filed a
motion to redact the October 9, 2020 decision dismissing her claim. (ECF No. 72.) No
response was filed. In her motion, petitioner stated in full:
The Petitioner requests that the recent decision of the Special Master be
redacted from public record, and not published for privacy reasons. In the
alternative, if the decision is to be published, that the Petitioner’s name and
personal information be redacted and not appear in the public record.
Vaccine Rule 18(b) provides a 14-day period for redaction. Vaccine Rule 18(b)
effectuates the opportunity for objection contemplated by Section 12(d)(4) of the
1 Because this decision contains a reasoned explanation for the special master’s 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. See 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic
Government Services). This means the decision will be available to anyone with access to the
Internet. In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact
medical or other information the disclosure of which would constitute an unwarranted invasion of privacy.
If the special master, upon review, agrees that the identified material fits within this definition, it will be
redacted from public access.
Vaccine Act, which provides in relevant part that “[a] decision of a special master or the
court in a proceeding shall be disclosed, except that if the decision is to include
information . . . (ii) which are medical files and similar files the disclosure of which would
constitute a clearly unwarranted invasion of privacy, and if the person who submitted
such information objects to such information in the decision, the decision shall be
disclosed without such information. 42 U.S.C. § 300aa-12(d)(4)(B).
The U.S. Court of Appeals for the Federal Circuit has not had occasion to
interpret this section of the Vaccine Act. However, two competing methods of
interpretation have been endorsed by different decisions in the lower courts, one
focusing on common law traditions regarding public access (Langland) and one based
on comparison to the Freedom of Information Act (W.C.). See Langland v. Sec’y of
Health & Human Servs., No. 07-36V, 2011 WL 802695 (Fed. Cl. Spec. Mstr. Feb. 3,
2011); W.C. v. Sec’y of Health & Human Servs., 100 Fed. Cl. 440 (2011). The question
of redaction is left to the discretion of the special master and special masters do not
abuse their discretion by denying unsubstantiated motions for redaction. K.L. v. Sec’y
of Health & Human Servs.,123 Fed. Cl. 497, 507-09 (2015).
In this case, petitioner’s motion is untimely under Vaccine Rule 18(b).
Nonetheless, petitioner did file her motion in advance of any publication of the decision
at issue. However, a prior fact ruling containing substantially the same medical
information has already been published in unredacted form.2 Accordingly, even if timely
and even if granted, petitioner’s motion would be unlikely to meaningfully preserve her
privacy. In any event, I stress that petitioner’s motion is patently insufficient to warrant
any substantive redaction. Only clearly unwarranted invasions of privacy support an
objection to disclosure. Notwithstanding her general desire for privacy, petitioner put
her medical history at issue by filing her claim and Langland explains at length why
common law traditions, and the Vaccine Act itself, favor public disclosure of the
resulting decision in the ordinary course.
In light of the above, petitioner’s motion to redact the October 9, 2020 decision
dismissing this case is DENIED. Absent a timely motion for review of this order, I
intend to publicly post the decision without further opportunity to request
redaction.
IT IS SO ORDERED.
s/Daniel T. Horner
Daniel T. Horner
Special Master
2 The finding of fact was re-issued for public release on November 4, 2019, some 26 days following its
initial issuance. (ECF Nos. 38-39.) No motion for redaction was ever filed; however, in July of 2020,
petitioner contacted my chambers via e-mail, indicating that she had located the decision online and
requesting that it be removed. (ECF No. 62.) At that time, I advised petitioner that the fact finding
explained the redaction process, including the 14-day period for such requests, and that it was publicly
posted because no motion to redact was ever filed.
2