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Openness and Privacy in Court Cases Dealing with Litigants’ Medical Information

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An interesting opinion by the Seventh Circuit in Mitze v. Saul (Judges Ripple, Hamilton & Scudder):

[A.] Years after Brenda Mitze unsuccessfully appealed the denial of her application for social security benefits, she moved to seal court decisions and other records, claiming that their publication violated her right to keep her medical information private. The district court denied the motion and we affirm….

[B.] We omit the details that led Mitze to apply for disability benefits in 2009, as they are unnecessary to the disposition of this appeal. The Commissioner found she was not disabled and denied her application. Suffice it to say she was unable to establish that a medically determinable impairment precluded her from engaging in past relevant work or other gainful employment. On review the district court upheld the Commissioner’s decision. We did too.

Several years later, Mitze filed a motion to seal her “medical information … and all other information pertaining to [her] case.” She complained of “harassing phone calls from solicitors” who knew her personal medical information because the courts had “publicized” it by issuing opinions announcing the affirmance of the ALJ’s decision.

The district court denied Mitze’s motion. It first noted that remote electronic access to filings containing Mitze’s medical records already was limited to the parties and their attorneys. (Full access, however, is available to the public at the courthouse.) To the extent that Mitze wished to seal the district and appellate court opinionsboth of which recounted her medical facts in detailthe district court determined she offered no reason to overturn the “long-standing tradition” of granting public access to the courts’ decisions. Finally, the district court concluded that it had no authority to require news outlets to remove articles about those decisions from the internet.

On appeal, Mitze … adds not only that she and her children have experienced social stigma, but also that thieves broke into her home to steal pain medication, which publicly available documents revealed that she had been prescribed….

[C.] [A] strong presumption exists in favor of publishing dispositional orders. Even in cases involving substantial countervailing privacy interests such as state secrets, trade secrets, and attorney-client privilege, courts have opted for redacting instead of sealing the order or opinion….

Balancing the public’s right to transparent court proceedings and a litigant’s personal privacy interests is difficult, particularly when it comes to those seeking benefits based on health concerns. We sympathize with a claimant who feels as though her medical information should not be publicized simply because she chooses to avail herself of her right to judicial review. It might be that the existing remedies of proceeding anonymously, requesting redactions, or sealing records fall short of what is needed in the social security context.

To be sure, the public has “a right to know who is using [its] courts.”Under the current standard, a plaintiff wishing to proceed anonymously must rebut the presumption that parties’ identities are public information by showing that her need for anonymity outweighs the harm of concealment. But we question whether a uniform practice of social security opinions bearing only claimants’ initials would negatively impact the government or public interest in any meaningful way.

We leave that balancing for another day. All we need to say in the case before us is that it is too late for Mitze. Given everything that has transpired over the years, we cannot revisit the application of these standard practices regarding the publication of judicial decisions and orders in social security matters.

[D.] Mitze’s circumstances fall outside the “very few categories” for which we have recognized that confidentiality is appropriate…. “[E]mbarrassment, incrimination, or exposure to further litigation will not, without more, compel the court to seal its records.” ….

When unsuccessful applicants for disability benefits seek judicial review, they can expect (at least under today’s practices) that the medical basis of the claim will become public. In such cases, federal courts have a responsibility to review the decision of an administrative law judge to determine whether there is substantial evidenceprimarily medical evidencein the administrative record to support the decision. We do so in reasoned decisions issued to the parties and made available to the public.

The Federal Rules of Civil Procedure draw a line at protecting medical records themselves, and redaction of personal identifying information such as social security numbers is required. But mere discussion of the factual basis for a disability claim is not grounds for preventing the publication of judicial decisions….

[E.] Mitze’s two remaining arguments also fail. News outlets have the right to publish information obtained from public court records, so we cannot order an outlet to remove from its website articles reporting on the decisions in her case. And to the extent Mitze argues that the courts or the press making the details of her case public violates the Health Insurance Portability and Accountability Act, she has not explained how. The Act regulates the disclosure of information by only healthcare providers and their affiliates.

 

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Sanders and Schumer call on McConnell to hold hearings to fight election conspiracy theories – KTVZ

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Sanders and Schumer call on McConnell to hold hearings to fight election conspiracy theories - KTVZ

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Sen. Bernie Sanders of Vermont and Senate Democratic Leader Chuck Schumer of New York are calling on Majority Leader Mitch McConnell to create a new bipartisan committee focused on election integrity and schedule hearings to reassure Americans over a process President Donald Trump has repeatedly sought to undermine.

There is growing anxiety among Democrats, and some Republicans, that Trump will not only continue to sow doubt over the legitimacy of the coming election but throw the subsequent count into chaos by declaring victory before all the votes can be tallied, including the millions that will arrive by mail.

In a letter to McConnell, Sanders and Schumer quote back the Kentucky senator’s own words, in which he attested to the reliability of mail-in voting by citing its successes in Oregon, Washington and Colorado, which have been using the system for years.

Trump has repeatedly questioned the validity of mail-in voting, promoted conspiracy theories questioning election security, called on supporters to act as unsanctioned “poll watchers,” and suggested that the absence of a clear result by the evening of November 3 would in some way cast doubt on the eventual outcome. Key allies in powerful positions, like Attorney General Bill Barr, have followed suit. Barr has persisted in puffing up a debunked claim that ballots received by mail would somehow strip the sender of their privacy — ignoring well-established safeguards.

By escalating the matter now, Sanders and Schumer are responding to growing concern, in partisan and nonpartisan spaces, that Americans are not adequately prepared for the potential of a longer-than-usual wait for results or Trump’s willingness to short-circuit the democratic process if he smells defeat.

“Democrats and Republicans in Congress must come together to ensure that we have a free and fair election where every vote is cast and counted without intimidation,” Sanders told CNN, “where no one has to put his or her health in danger to cast a ballot, and where we have full confidence in the results.”

The proposed hearings would invite a cross-section of election officials from across the country to testify to the security and reliability of mail-in, early- and in-person voting — subjects on which Sanders and Schumer, again, referenced McConnell’s own words.

“Despite the clear security of our vote-by-mail system, some have continued to undermine it with unsubstantiated claims of voter fraud,” they wrote. “As you have correctly said, people ‘can vote early, you can vote on Election Day, or you can drop it in the mail,’ and that voters should ‘not worry about your vote not counting.’”

The minority leader and Sanders, an independent who caucuses with the Democrats, also want more detailed discussion about the fraught hours, or days, after the polls close and a real-time watch of the election horse race potentially swings from one candidate to another.

“We know a number of states may well be counting ballots for a period of time after Election Day, and that those votes may be determinative in this election,” the senators wrote to McConnell. “To avoid disinformation, conspiracy theories, and suspicion about results, we must understand the likely timeline for this process.”

The letter goes on to reference the recent war games-style preparations conducted by a group called the Transition Integrity Project, a bipartisan gathering of operatives and academics that made headlines when some of the outcomes of their exercises — including “both street-level violence and political impasse” — were reported on in late July.

“A bipartisan group of experts and officials have studied multiple scenarios where the outcome of the election was not immediately known. Some of these scenarios resulted in unrest and even violence,” Sanders and Schumer wrote, suggesting the Senate should elevate similar discussions and familiarize the public with the uncertainties ahead. “We would like to hear from the most knowledgeable people in the country as to how we can do everything possible to make sure that the election and the period afterward is secure and peaceful.”

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HHS official sorry for conspiracy theory video

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HHS official sorry for conspiracy theory video

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HHS supported Caputo, with a statement that called him a critical, integral part of the presidents coronavirus response, leading on public messaging as Americans need public health information to defeat the COVID-19 pandemic.

There was no immediate statement from the White House.

Attempts to reach Caputo were unsuccessful.

On Capitol Hill, Sen. Patty Murray, D-Wash., called on Azar to fire Caputo, accusing the spokesman of trying to interfere with CDC reports to the medical and scientific community, as well as the public at large. And Senate Minority leader Chuck Schumer, D-N.Y., called on Azar himself to resign, citing interference with the CDC as one example of what he termed the administration’s failures.

Officials at CDC have privately complained of recent efforts by political appointees at main HHS to try to edit or press for changes in the agency’s weekly MMWR publications, a go-to resource for public health professionals.

MMWR articles are technical, but they reveal telling details. One published earlier this year noted that while Trump’s travel restrictions dramatically reduced travel from China in February, nothing was being done at that time to restrict travel from Italy and Europe, where the coronavirus was spreading widely and rapidly. Analysis of virus samples from hard-hit New York in March suggested it was introduced there from Europe and other parts of the U.S., the CDC article reported.

Caputo is an unswerving Trump loyalist. His recent book, The Ukraine Hoax, claims the presidents phony impeachment was rooted in a vast conspiracy.

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unwinona:This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS…

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unwinona:This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS...

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My RSS Feedunwinona:

This is exactly what conspiracy theorists and anti-vaxxers have done with their HIV/AIDS and Polio narrative (among others), only we’re seeing it escalated to weeks and months instead of years or decades.

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