Jane Doe v. Brentwood Acad. Inc.

578 S.W.3d 50

John DOE BY His Next Friend Jane DOE et al.

v.BRENTWOOD ACADEMY INC. et al.

No. M2018-02059-COA-R9-CV

Court of Appeals of Tennessee, AT NASHVILLE.

December 11, 2018

FILED December 14, 2018

Justin S. Gilbert, Chattanooga, Tennessee, for the appellants, John Doe and Jane Doe.

Thomas A. Swafford, Nashville, Tennessee, Elizabeth G. Hart and Tara L. Swafford, Franklin, Tennessee, and Lucian T. Pera, Memphis, Tennessee, for the appellees, Buddy Alexander, Nancy Brasher, Brentwood Academy, Inc., Lyle Husband, Curt Masters, and Mike Vazquez.

Frank G. Clement Jr., P.J., M.S., delivered the opinion of the Court, in which Andy D. Bennett and Richard H. Dinkins, JJ., joined.

Frank G. Clement Jr., P.J.

This Tenn. R. App. P. 9 application for permission to appeal concerns whether portions of a trial court order and a transcript, both of which reference Plaintiff Jane Doe's medical history, should be placed under seal. Pursuant to an October 2, 2018 order of remand from this court in Appeal No. M2018-01611-COA-R10-CV¹ , the trial court determined that portions of the documents should be redacted, but that certain portions of the transcript and order which include references to Jane Doe's medical history should not be placed under seal. The trial court subsequently granted Jane Doe and John Doe permission to appeal under Tenn. R. App. P. 9. We concur with the trial court that this is an appropriate case for an interlocutory appeal. Furthermore, because the application and answer fully set forth the parties' positions and the material facts, we dispense with further briefing and oral argument and proceed to the merits of the appeal in order to save the parties additional time and expense.

This case arises out of an alleged sexual assault of a minor, John Doe, in a middle school locker room. John Doe by his next friend Jane Doe filed a complaint against the school and several individual defendants. Although the plaintiffs voluntarily dismissed their complaint without prejudice under Tenn. R. Civ. P. 41.01 in June of 2018, ancillary matters remained pending before the trial court. On September 4, 2018, the plaintiffs filed an application for an extraordinary appeal under Tenn. R. App. P. 10. No. M2018-01611-COA-R10-CV. In connection with the application, the parties filed several exhibits that had been placed under seal in the trial court pursuant to the trial court's blanket order entered on November 15, 2017. The November 15, 2017 order reads in pertinent part, "the Court hereby requires that all documents filed in this case initially be placed under seal. The Court will then do an in camera inspection of each document and decide whether or not to unseal the document." No such in camera inspection of the relevant documents had occurred at the time the Tenn. R. App. P. 10 application was filed.

Documents previously filed under seal in the trial court pursuant to a specific order of the trial court remain under seal in this court. Tenn. Ct. App. R. 15(b)(i). However, "[f]or a document to be filed under seal in the appellate court pursuant to subdivision (b), the trial court must have made an individualized determination that the particular document should be filed under seal." Tenn. Ct. App. R. 15(b)(ii). Because the November 15, 2017 order did not include the individualized determination required by Tenn. Ct. App. R. 15, we remanded the matter to the trial court with instructions to make specific findings and conclusions needed to justify sealing any specifically identified documents or portions of documents.

On November 1, 2018, the trial court entered an order placing several documents, or portions thereof, under seal and removing the seal from several other documents. At issue in this appeal is the trial court's determination that certain portions of a February 5, 2018 order and a November 9, 2017 transcript, both of which reference Jane Doe's medical history, should not be placed under seal. The trial court found that the plaintiffs had failed to show a "compelling reason" to justify sealing these portions of the record because they contained a discussion about Jane Doe's medical information, not Jane Doe's actual medical records. The trial court subsequently granted the plaintiffs permission to appeal under Tenn. R. App. P. 9. The plaintiffs timely filed a Tenn. R. App. P. 9 application in this court, and the defendants filed an answer in opposition to the application. In addition, the plaintiffs have filed a motion to file portions of their application and supporting documents under seal pursuant to Tenn. Ct. App. R. 15. We emphasize at this point that the only issue before us in this Tenn. R. App. P. 9 appeal is public access to the two documents in question. Neither the defendants' access to the documents nor the documents' admissibility is at issue.

We review the trial court's orders to seal its records under an abuse of discretion standard. In re NHC-Nashville Fire Litigation, 293 S.W.3d 547, 560 (Tenn. Ct. App. 2008). However, " ‘[i]n light of the important rights involved, the [trial] court's decision is not accorded’ the deference that standard normally brings." Shane Group, Inc. v. Blue Cross Blue Shield of Michigan , 825 F.3d 299, 306 (6th Cir. 2016). (quoting In re Knoxville News-Sentinel Co. , 723 F.2d 470, 476 (6th Cir. 1983) ). Having reviewed the relevant documents, we conclude the trial court interpreted the protection for the plaintiff's medical history too narrowly.

ANALYSIS

"[T]he courts of this country recognize a general right to inspect and copy public records and documents, including judicial records and documents." Nixon v. Warner Commc'ns, Inc. , 435 U.S. 589, 597, 98 S.Ct. 1306, 1312, 55 L.Ed.2d 570 (1978). This public access doctrine is codified in the Tennessee Public Records Act. Tenn. Code Ann. §§ 10-7-101 to -702. The definition of "public records" that are subject to public access include the following court records: "the pleadings, documents, and other papers filed with the Clerk[s] of ... all courts." In re NHC , 293 S.W.3d at 564 (citing Ballard v. Herzke , 924 S.W.2d 652, 661 (Tenn. 1996) (emphasis in Ballard ) (quoting Tenn. Code Ann. § 10-7-403 )). Thus, all documents filed with the trial court clerk are public records and are open to the public unless they are protected from disclosure by a statute, rule, or court order. See Tenn. Sup. Ct. R. 34.

There is a "strong presumption in favor of openness" regarding court records. Shane Grp., Inc. , 825 F.3d at 305 (quoting Brown & Williamson Tobacco Corp. v. FTC , 710 F.2d 1165, 1179 (6th Cir. 1983) ). Unlike discovery information merely exchanged between the parties, "[t]he public has a strong interest in obtaining the information contained in the court record."

Brown & Williamson Tobacco Corp. , 710 F.2d at 1180. As this court has reasoned, "[t]he public's right to access provides public scrutiny over the court system which serves to (1) promote community respect for the rule of law, (2) provide a check on the activities of judges and litigants, and (3) foster more accurate fact finding." In re NHC , 293 S.W.3d at 561 (quoting Ballard , 924 S.W.2d at 661 ).

There are, however, numerous exceptions to the Public Records Act and the openness of court records that are provided by statute, the Tennessee Constitution, the common law, rules of court, and administrative rules and regulations. Tennessean v. Metro. Gov't of Nashville , 485 S.W.3d 857, 865 (Tenn. 2016) ("When the [Public Records] Act was adopted in 1957, only two categories of records were excepted from disclosure—medical records of patients in state hospitals and military records involving the security of the nation and state. However, over the years, the General Assembly has added over forty categories of records specifically excepted from the Act."). In fact, medical records enjoy broad protection from public disclosure, and the courts of this state have long recognized the importance of keeping a patient's medical records confidential. Hall v. Crenshaw , 449 S.W.3d 463, 469 (Tenn. Ct. App. 2014) ; Stevens ex rel. Stevens v. Hickman Cmty. Health Care Servs., Inc. , 418 S.W.3d 547, 558 (Tenn. 2013) ; McNiel v. Cooper , 241 S.W.3d 886, 896 (Tenn. Ct. App. 2007) ; Alsip v. Johnson City Med. Ctr. , 197 S.W.3d 722, 725 (Tenn. 2006) ; Givens v. Mullikin ex rel. Estate of McElwaney , 75 S.W.3d 383, 407 (Tenn. 2002).

As explained in McNiel , "[m]aintaining the confidentiality of patient records is for the protection of the patient[.]" 241 S.W.3d at 896 (citation omitted). Moreover, as discussed in Hall and emphasized in Alsip :

[M]edical confidentiality arose from both the patient's understanding of the covenant between physician and patient and the policy concerns about keeping private and potentially embarrassing information private, adding, "The relationship of patient to physician is a particularly intimate one [because] [t]o the physician we bare our bodies ... in confidence that what is seen and heard will remain unknown to others."

Hall , 449 S.W.3d at 469 (quoting Alsip , 197 S.W.3d at 726 ).

The privacy of such records is also protected by both federal and state statutes. Medical records are deemed confidential pursuant to the Health Insurance Portability and Accountability Act of 1996 ("HIPAA"). Tennessee statutes also protect the confidentiality of medical records. As we noted in Givens , "the General Assembly has enacted several statutes that expressly require a physician and others to keep a patient's medical records and identifying information confidential." 75 S.W.3d at 407. One such statute, Tenn. Code Ann. § 63-2-101(b)(1) states that medical records provided to state agencies by medical providers "shall not constitute public records, and nothing contained in this part shall be deemed to impair any privilege of confidentiality conferred by law on patients, their personal representatives or heirs." Another, Tenn. Code Ann. § 10-7-504(a)(1)(A), provides:

The medical

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