From Berthold v. Secretary of Health & Human Services, decided by Court of Federal Claims Special Master Brian H. Corcoran on Feb. 11 but just posted on Westlaw:
Petitioner alleges that she suffered a shoulder injury related to vaccine administration resulting from an influenza vaccine received on September 20, 2021 [and therefore filed for compensation under the National Vaccine Injury Compensation Program]….
On November 20, 2024, I issued a Ruling on Entitlement in Petitioner's favor. As the text of the Ruling sets forth, Petitioner had a right to seek redaction of this document, but needed to do so within the timeframe set by 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" ….
Petitioner did not so act. Accordingly, the Ruling was publicly posted on December 20, 2024, and it may now be found in legal research databases. On January 13, 2025, I issued a decision awarding damages based on the proffer agreed to by the parties.
The next day, Petitioner filed a timely motion to redact the damages decision. The attachment proposed redacting Petitioner's name to her initials in the Decision, but was silent on the Proffer that had been attached to the Decision, which also had her full name. Petitioner also did not request redaction of the November Ruling….
Petitioner argues that the January 13th Damages Decision has the potential to impact her employment in pediatric public affairs for a large academic medical center. In her position, she promotes research and clinical care in pediatrics to the public, specifically related to childhood vaccinations. She represents her medical center which follows the American Academy of Pediatrics guidance on childhood vaccination, and often fields media queries concerning childhood vaccinations. She "does not want her experience with [a] poorly administered vaccine to become a story in itself that would interfere with her ability to advocate for vaccinations at large."
Respondent proposes that I focus on whether the requested redactions "strike an appropriate balance between petitioner's privacy interest in the information and the public's interest in the Decision." Respondent adds that there is a "significant Program interest in not having every case caption reduced to initials" which "would make the administration of the Program unmanageable, because the parties and the Court rely on citing precedent that is readily accessible and suitably differentiated from other cases in briefing and arguments." Ultimately, however, Respondent does not believe it is appropriate to advocate in favor of disclosure of a petitioner's information in any particular case, and defers to my discretion….
Generally, information provided in vaccine proceedings may not be disclosed without the written consent of the party providing the information. However, the Act requires disclosure of the decisions of the special masters or the Court, and thus later allows (once a claim has been decided) the disclosure of information previously not permitted to be shared with the public. Otherwise, the Act provides for redaction of certain categories of information—"medical files and similar files"—only if the disclosure of such information "would constitute a clearly unwarranted invasion of privacy."
Some levels of redaction are explicitly recognized as reasonable in the context of Program cases. In particular, the Vaccine Rules allow the initials of a minor to be used in the petition's caption when filed. Vaccine Rule 16(b). By contrast, adult petitioners' names are not afforded automatic protection; instead, adult claimants must affirmatively establish a basis for redaction. Thus, the Act assumes (consistent with the approach in most federal litigation) that an adult claimant's name will be disclosed in the context of publication of a Vaccine Program decision.
Program case law has not established a consistent "rule" for how redaction requests should be analyzed and treated. Langland [one Court of Claims decision] adopts a more stringent approach, while W.C. [another decision] emphasizes a balancing test that weighs a petitioner's privacy interests against "the public purpose of the Vaccine Act."
Indeed, the Langland approach acknowledges that the plain language of the Vaccine Act, specifically § 12(d)(4)(B), requires decisions to be disclosed to the public. Further, "special masters have concluded that public disclosure of a vaccinee's medical condition is not a clearly unwarranted invasion of privacy because the vaccinee places his or her medical condition in contention by filing a claim."
With using either the Langland or W.C. approach, however, a petitioner needs to make some showing to justify the relief of redaction; redaction is not available simply at a petitioner's beck and call. I have permitted redaction in cases where such a specialized showing was made without reconciling these two competing standards or choosing one over the other. See, e.g., K.L. v. Sec'y of Health & Human Servs. (Fed. Cl. Spec. Mstr. 2015) (granting petitioner's second request to redact only her name to initials which was accompanied by additional information regarding the potential harm she may suffer regarding her employment).
A petitioner's general concern for privacy—something undoubtedly shared by many vaccine case petitioners—is not by itself a sufficient reason for redaction, especially when there is a strong public interest in the information's disclosure.
In many cases, redaction is deemed appropriate because the petitioner shows some nexus with the medical profession, and a related concern that disclosure of the claim could result in bias against the individual. M.A. v. Sec'y of Health & Human Servs. (Fed. Cl. Spec. Mstr. 2020) (granting redaction when the petitioner established he was concerned about his employment (and thus financial) security if his employer (a large medical provider with knowledge of the Vaccine Program) were to learn of the existence or extent of his vaccine-related injury). But this cannot be the sole circumstances in which redaction is allowed. Indeed, privacy concerns of incarcerated individuals have also been considered. T.R. v. Sec'y of Health & Human Servs. (Fed. Cl. Spec. Mstr. 2024) (granting redaction to an incarcerated petitioner who was concerned of safety risks if his shoulder injury were revealed to his fellow inmates).
At bottom, and as the Court of Federal Claims recently confirmed, "[e]ach request for redaction must be made by applying the specifics in the case in which the redaction request is made, and … provide the necessary analysis regarding the current petitioner to explain the specific circumstances which would make redaction inappropriate [or appropriate]." K.N. v. Sec'y of Health & Human Servs. (Fed. Cl. 2023) (finding petitioner's potential employment harm was not found to be remote, as she established she was planning to pursue a career in microbiology, immunology, and vaccines, and thus the existence and disclosure of her mental health conditions, medications, or her vaccine-related claim would harm those employment prospects and create an unwarranted invasion of privacy).
Absent a similar "hook," the mere claim that it is possible a person would face difficulties if the fact of a case was disclosed amounts to speculation. And the standard for redaction should not simply be to allow it whenever "the petitioner asks for it" (since to do so would be to deny relief to claimants solely because they fail to make such a request).
In this case, Petitioner's redaction request is clearly made in good faith, and even has some substantive basis, due to the nature of her work—involving communications concerning childhood vaccinations for a large academic medical center. Nevertheless, I must deny it, for several reasons.
First, I observe that the Damages Decision reveals little about Petitioner beyond her name, injury, and the damages award. It does not include any details about her medical history. In these circumstances, redaction is generally not warranted—for the bare fact of having brought a Vaccine Act claim, and received damages for it, does not involve disclosure of personal information.
Second, the request itself may not be untimely with respect to the Damages Decision, but it follows in the wake of the failure to seek redaction of the underlying entitlement ruling. And that context is important. For the harm Petitioner alleges stems from public disclosure of the fact that she suffered a vaccine injury—a fact that has already been made public through the disclosure of the November 2024 Ruling. The only thing added by the Decision Petitioner seeks to redact is the amount of damages awarded (and she alleges no harm particular to the monetary aspect of the case).
Because of the foregoing, I deem redaction of the Damages Decision at this point to be futile, given the public disclosure of the underlying ruling. The Program cannot now "undo" that disclosure. As such, I do not deem redaction to be capable of providing Petitioner the relief she seeks.
Note that federal courts generally decline to grant pseudonymity based solely on fear of employer retaliation, see The Law of Pseudonymous Litigation (pp. 1420-23 & 1457-60). In this respect, the Court of Federal Claims Special Masters' practice as described in this decision seems to be more pseudonymity-friendly than most federal courts' practice. They also generally decline to retroactively pseudonymize decisions once they had been publicly filed, see this post. In this respect, this decision seems to track most federal courts' practice.
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