Court Rejects Sealing Request by United Network for Organ Sharing

Starting at United Network for Organ Sharing v. CallahanThe Eleventh Circuit ruled yesterday in favor of the petition (Judge Britt grant joined by Julie Carnes, Elizabeth Branch, and Judges Britt Grant):

Judicial records are open to the public, and for good reason—access to judicial proceedings is crucial to our tradition and history, as well as to continued public confidence in our system of justice. This Circuit has been resolute in our enforcement of that presumption of public access…. The documents here are plainly judicial records and the appellants have not shown good cause to keep them sealed….

Organ donation saves lives—but whose? Congress passed the National Organ Transplant Act to provide a framework for a national policy that addresses this question. For the past thirty-five years, the United Network for Organ Sharing has overseen that partnership through a contract with the United States Department of Health and Human Services….

UNOS approved an updated liver allocation policy three years ago. It changed geographic criteria that determine which organ recipients are given to whom. UNOS claims the policy will provide liver transplants for more patients who are most in need. The policy’s critics argue that it will reduce the number of transplants available, particularly in economically disadvantaged regions.

Each rule changes has both winners and losers, regardless of which side is winning the argument. And the new organ transplant policy meant a shift in who would receive donated organs—ultimately, a change in which patients would live and which patients would die. The new policy was not accepted by the hospitals and patients that were at the losing side of this equation. Soon after approval of the new liver policy, the hospitals sued UNOS (and HHS) alleging that they had violated the Administrative Procedure Act as well as the Due Process Clause under the Fifth Amendment. They also asked for preliminary injunctive relief. The district court granted them that, based on its review one of the APA claims, it denied. The Court confirmed this denial in interlocutory appel. This Court then remanded it to the District court, where they will consider all remaining claims.

UNOS was repeatedly failing to fulfill its production obligations after the district court ordered restricted discovery upon remand. It took UNOS two separate orders by the court to produce requested communications between top-level staff and policymakers. These documents contained, among others, unguarded emails that expressed personal opinions regarding the relative merits and disadvantages of living in various regions within the United States.

Following the production of the documents, the court permitted the hospitals to file an additional ten page brief in support their application for a preliminary order. They argued that new documents revealed “bad faith, improper behavior” during UNOS’s policymaking process. The court allowed the follow-up brief to be filed by the hospitals. It should be considered evidence that UNOS made the policy change arbitrary, capricious and without due process. The court sealed the attachments as well as the supplement briefing in a provisional seal. It restricted them to the Court’s users and only parties while it waited for its review.

Because the documents were not in the Administrative Record for HHS’ APA claim, the district court ruled that they could be excluded from it. Although the court denied the preliminary injunction it stated that they were still part of the administrative record. [the]The court’s records could help inform the judicial inquiry on the rest of the case. The court also noted that the documents included “colorable evidence of animosity and even some measure of regional bias”—what it characterized in a later order as “inadvisable ‘hot takes,'” “inflammatory remarks,” and “clear preferences for policy outcomes.”

After the decision of the district judge, hospitals requested that the documents be unsealed. After ruling that these documents were not judicial records, the district court allowed the motion. UNOS did not have good cause to seal them. UNOS now appeals….

Common-law access to judicial proceedings “is an essential part of our justice system” and is crucial in protecting the integrity of the processes. It is important to remember that the means of achieving justice need public support. This includes both the results and the process itself. The right to access information is essential, but it’s also very limited. The right attaches only to “items which may properly be considered public or judicial records”—not to any and all materials produced during discovery—and it can be outweighed by competing interests.

Although the concept of the difference between discovery material and judicial records may appear unclear, we have established that this distinction is clear. The Circuit ruled that discovery materials filed as discovery motions are not covered by the common law right of access. However, discovery material filed in connection to pretrial motions which require judicial determination of merits is protected. In other words, though discovery materials do not automatically qualify as judicial records subject to the common-law right of access, they take on that status once they are filed in connection with a substantive motion….

[And w]We have always rejected any tests that would make the status of a document as a judicial document dependent on “whether it played an identifiable role in the resolutions of the case”, or require us to establish “the actual function the document played.” … What matters is how the document was used by the parties—to support an argument before the court—and not whether the court itself used the document to resolve that argument….

UNOS claims that UNOS has succeeded [rebutted the presumptive right of access and] shown good cause to keep the documents sealed…. [But]UNOS did not offer any compelling reason to seal the documents in the first instance. These documents are policymaking related to a genuine public matter and don’t contain trade secrets or proprietary information that should be protected. The emails have not been deemed fraudulent. UNOS created them. UNOS’s keenness to protect the documents is understandable. However, we know that this group of litigants are not the first to regret being less careful with their emails. But UNOS’s reasoning boils down to a desire to keep indiscreet communications out of the public eye, which is not enough to satisfy our standard for good cause….

[The district court also]Insufficient argument to say that desealing documents may have adverse effects on policymaking has been rejected. UNOS’s “generalized belief” that undealing documents would chill debates “cannot be overcome by the presumptive general interest nature these documents.” Finally, the court looked into the possibility that UNOS had provided the documents to hospitals in an attempt to publish sensational communications. The court found no evidence that the hospitals were acting in bad faith. However, it noted that sealing materials which are subject to the common-law right of access does not generally constitute a sanction for misconduct. …

UNOS also warned that affirming a district court’s order for unseal would allow “the court be used to publicize confidential materials,” opening floodgates to plaintiffs looking to exploit filings “Trojan horses” for irrelevant material. Our precedents protect litigants from such schemes. “Insofar this potential for abuse exists in other cases. There are already sufficient remedies. In the event that confidential documents or sensitive information are incorrectly attached to files, an aggrieved side may request to be struck from any record. If there is clear abuse of judicial systems, professional sanctions could be used along with monetary sanctions under Federal Rule of Civil Procedure 11 or parties can bring “actions for wrongful civil proceedings.” …