The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JULIE ELLEN WARTLUFT, et al., : Civil No. 1:16-CV-2145
:
Plaintiffs, :
: (Judge Jones)
v. :
: (Magistrate Judge Carlson)
THE MILTON HERSHEY SCHOOL :
AND SCHOOL TRUST, et al., :
:
Defendants. :
MEMORANDUM OPINION1
I. Introduction
On June 29, 2016, the plaintiffs, Julie Ellen Wartluft and Frederick Bartels,
acting individually and on behalf of the estate of their deceased daughter, filed this
lawsuit against the Milton Hershey School and the Hershey Trust (collectively
1 Pursuant to 28 U.S.C. § 636(b)(1)(A), this court, as a United States Magistrate
Judge, is authorized to rule upon motions by intervenors to unseal certain court
records. Parson v. Farley, 352 F. Supp. 3d 1141, 1145 (N.D. Okla. 2018), aff'd, No.
16-CV-423-JED-JFJ, 2018 WL 6333562 (N.D. Okla. Nov. 27, 2018). We note for
the parties that under 28 U.S.C. § 636(b)(1)(A) the parties may seek review of this
order by filing a motion to reconsider with the district court since: “A judge of the
[district] court may reconsider any . . . matter [decided under this subparagraph]
where it has been shown that the magistrate judge's order is clearly erroneous or
contrary to law.” 28 U.S.C. § 636(b)(1)(A).
“MHS”). (Doc. 1). This lawsuit arose out of a singular tragedy—the suicide of the
plaintiffs’ 14-year-old daughter in June of 2013, at about the time of her expulsion
from MHS following two episodes of hospitalization for severe depression. (Id.) The
plaintiffs alleged that this suicide was a result of unlawful discriminatory practices
by the defendants, and specifically alleged that MHS had a two-hospitalization
policy which led to the expulsion of emotionally fragile students once those students
underwent two hospitalizations for mental illness. These allegations formed one of
the legal and factual pillars for this lawsuit. (Id.)
As we have observed in the past, on occasion, however, other disputes have
threatened to overtake and displace the resolution of the merits of these claims.
Wartluft v. Milton Hershey Sch. & Sch. Tr., No. 1:16-CV-2145, 2018 WL 3995697,
at *1 (M.D. Pa. Aug. 21, 2018). These disputes have included litigation regarding
access to previously sealed court records. In particular, The Philadelphia Inquirer,
PBC (“The Inquirer”), filed a motion to intervene and unseal a number of docket
entries in this case on June 20, 2019 (Doc. 266), and the motion was referred to the
undersigned. On October 22, 2019, we granted The Inquirer’s motion to intervene
and provisionally unsealed several docket entries, as we found that the defendants
had not shown good cause for the continued sealing of these documents, but we
denied The Inquirer’s request to unseal Document 203-1. (Doc. 286). We then
provided the defendants with an opportunity to either make a showing of good cause
for continued sealing or to make appropriate redactions to the documents that were
to be provisionally unsealed, and we gave The Inquirer and opportunity to object to
the defendants’ proposed redactions. (Id.)
MHS has now filed a brief in support of its position that several of the
documents we provisionally unsealed should remain sealed, or in the alternative, we
should redact the unsealed documents according to the defendants’ proposed
redactions. (Doc. 291). However, MHS concedes that a number of the documents
need not be continuously sealed or redacted. (Id.) For its part, The Inquirer has
agreed that information concerning nonparties to this suit should be redacted but
reiterates its position that the documents should otherwise be unsealed and opposes
many of the defendants’ proposed redactions on the basis that the redactions are
overbroad. (Doc. 302).2
After reviewing the parties’ latest submissions, including the redactions that
MHS proposes, we find that MHS has still not shown that there is good cause for the
continued wholesale sealing of these documents. However, we recognize that there
is a host of information contained in these documents that pertains to medical and
2 We note that The Inquirer’s reply brief does not contest the continued sealing of
Document 203-1. Rather, counsel for The Inquirer requested a telephone
conference with the undersigned to inform the court of a recent decision out of the
Commonwealth Court that relates to the litigation against MHS and purportedly to
Document 203-1. However, as we will explain, nothing in the Commonwealth
Court’s decision negates our prior finding of good cause for the continued sealing
of this document. Accordingly, Document 203-1 will remain sealed.
personal information of third parties, information in which these nonparties have
important privacy interests. Accordingly, as will be explained in further detail below,
we will order the unsealing of these documents but will sustain some of MHS’s
proposed redactions which protect the privacy interests of these nonparties.
II. Discussion
As we have explained, The Inquirer seeks to have multiple docket entries in
this case unsealed and argues that the public has a right to access these documents,
particularly given the nature of the allegations against the defendants. We agree with
The Inquirer that a number of these docket entries should be unsealed, subject to the
redaction of the names and/or identifying information of third-parties in order to
protect those individuals’ privacy interests. However, our review of the proposed
redactions submitted by MHS reveals that some of these redactions are overbroad,
particularly as they relate to the school or medical records of the plaintiffs’ daughter,
A.B., as the plaintiffs have expressly consented to the release of these records. In
addition, the redactions made that purportedly relate to third-party identifying
information are overbroad. Thus, in accordance with the standards set forth below,
we will order the docket entries unsealed, but sustain some of the redactions MHS
proposes.
A. Standards Governing an Intervenor’s Access to Sealed Court
Documents
The Court of Appeals has recently articulated the different standards
governing challenges to the confidentiality of documents. On this score, the Court
stated:
We apply three distinct standards when considering various challenges
to the confidentiality of documents. We apply the factors articulated in
Pansy v. Borough of Stroudsburg, 23 F.3d 772, 783–92 (3d Cir. 1994),
when we review orders preserving the confidentiality of discovery
materials pursuant to Federal Rule of Civil Procedure 26. But we apply
the more rigorous common law right of access when discovery
materials are filed as court documents. In addition to recognizing fewer
reasons to justify the sealing of court records, the public right of
access—unlike a Rule 26 inquiry—begins with a presumption in favor
of public access. Goldstein v. Forbes (In re Cendant Corp.), 260 F.3d
183, 192–93 (3d Cir. 2001). Finally, the First Amendment right of
public access attaches to, inter alia, civil trials. Publicker Indus., Inc. v.
Cohen, 733 F.2d 1059, 1061 (3d Cir. 1984).
In re Avandia Marketing, Sales Practices and Products Liability Litigation, 924 F.3d
662, 670 (3d Cir. 2019). Thus, the legal standards we apply, and the scrutiny various
records receive, depends on the type of documents that the third party is seeking.
(1) Discovery Materials and Motions
Discovery materials can be shielded by the entry of a protective order pursuant
to Rule 26 of the Federal Rules of Civil Procedure. In order to obtain a protective
order, a party must establish “good cause” for the order, which requires “a showing
that disclosure will work a clearly defined and serious injury to the party seeking [to
prevent] disclosure. The injury must be shown with specificity.” Publicker Indus.,
Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984). “Broad allegations of harm,
unsubstantiated by specific examples or articulated reasoning” will not establish
good cause. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986).
In determining whether a party has established good cause for a protective order,
courts must consider a number of factors. In Pansy v. Borough of Stroudsburg, 23
F.3d 772 (3d Cir. 1994), the Third Circuit set forth a nonexhaustive list of factors to
be considered:
1) whether disclosure will violate any privacy interests;
2) whether the information is being sought for a legitimate purpose or
for an improper purpose;
3) whether disclosure of the information will cause a party
embarrassment;
4) whether confidentiality is being sought over information important
to public health and safety;
5) whether the sharing of information among litigants will promote
fairness and efficiency;
6) whether a party benefitting from the order of confidentiality is a
public entity or official; and
7) whether the case involves issues important to the public.
Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995) (citing Pansy,
23 F.3d at 787-91. The Pansy Court noted that in considering these factors, the
district court’s analysis “should always reflect a balancing of private versus public
interests.” Pansy, 23 F.3d at 789.
This analysis also applies to a situation in which a nonparty intervenor seeks
to modify an existing confidentiality order and inspect documents filed under seal.
Leucadia, 998 F.2d at 166. The party seeking to keep the documents confidential
must make a showing in accordance with the criteria identified by the court in Pansy
that good cause exists for continued protection of the documents. Id.
(2) Common Law Right of Access
Additionally, it is well-settled that there is a longstanding common law public
right of access to judicial proceedings, both criminal and civil, which includes the
right to “inspect and copy public records and documents, including judicial records
and documents.” Leucadia, 998 F.2d at 161 (internal citations and quotations
omitted). This right “antedates the Constitution,” Bank of America Nat’l Trust and
Savings Ass’n v. Hotel Rittenhouse Associates, 800 F.2d 339 (3d Cir. 1986), and
“promotes public confidence in the judicial system by enhancing testimonial
trustworthiness and the quality of justice dispensed by the court.” Littlejohn, 851
F.2d at 678. The right of the public to inspect court documents is dependent upon
whether such documents are “judicial records,” meaning that the record is “a
document that ‘has been filed with the court . . . or otherwise somehow incorporated
or integrated into a district court’s adjudicatory proceedings.” Avandia, 924 F.3d at
672 (quoting In re Cendant Corp., 260 F.3d at 192) (internal quotations omitted).
Once a document is determined to be a “judicial record,” a presumption of
public access applies. In re Cendant Corp., 260 F.3d at 192-93. On this score, the
Third Circuit has held that this presumptive right of access applies to “pretrial
motions of a nondiscovery nature, whether preliminary or dispositive, and the
material filed in connection therewith.” Id. However, it does not apply to discovery
motions and their supporting documents. Leucadia, 998 F.2d at 165. Moreover, the
presumption may be rebutted if the party seeking protection can show “that the
material is the kind of information that courts will protect and that disclosure will
work a clearly defined and serious injury to the party seeking closure.” Avandia, 924
F.3d at 672 (quoting Miller v. Ind. Hosp., 16 F.3d 549, 551 (3d Cir. 1994) (internal
quotations omitted)).
(3) First Amendment
Finally, there is a recognized constitutional right of access to civil proceedings
under the First Amendment, including documents involved in those proceedings.
Publicker Indus., 733 F.2d at 1071. In determining whether the right of access
applies, courts apply a two-prong test, asking: (1) “whether the place and process
have historically been open to the press” (the “experience” prong), and (2) “whether
public access plays a significant role in the functioning of the particular process in
question” (the “logic” prong). N. Jersey Media Group Inc. v. United States, 836 F.3d
421, 429 (3d Cir. 2016) (quoting PG Pub. Co. v. Aichele, 705 F.3d 91, 103 (3d Cir.
2013) (internal quotations omitted)). If both prongs are met, the First Amendment
right of access presumptively applies, and this presumption will only be rebutted by
a showing of “an overriding interest [in excluding the public] based on findings that
closure is essential to preserve higher values and is narrowly tailored to serve that
interest.” Avandia, 924 F.3d at 673 (quoting Publicker Indus., 733 F.2d at 1073)).
B. The Documents We Provisionally Unsealed Shall Be Unsealed Subject
to Minor Redactions Protecting Nonparties to this Litigation.
At the outset, we note that MHS has attached a list of documents that we had
provisionally unsealed with respect to which it does not contest the unsealing and
does not propose any redactions. Accordingly, these documents and attached
exhibits listed in Exhibit 1 to the defendants’ brief (Doc. 291-1) will be unsealed
without redactions.34
Additionally, MHS proposes redactions to Doc. 127, Doc. 161, Ex. 30, and
Doc. 196-2, to which The Inquirer does not object. Accordingly, we will unseal these
documents but sustain the redactions to these documents proposed in the defendants’
submission. (Doc. 291-3, at 2-26). We also note that the information redacted in
Doc. 161, Ex. 30 also appears in Doc. 173, and thus, we will sustain the defendants’
3 Docs. 135-1—135-8, 161-2—161-7, 161-16—161-18, 161-20—161-29, 161-
31—161-37, 161-46, 161-54—161-60, 176-1—176-3, 176-5, 176-38, 176-40—
176-41, 176-58, 176-62, 176-64—176-65, 176-67, 176-69—176-70, 196-1.
4 We note discrepancies between some of the defendants’ citations to the docket
and the court’s docket entry number. For example, where the defendants cite to
Doc. 161, Ex. 14, this entry is reflected in Doc. 161-21. Accordingly, in an effort
to ensure that the correct docket entries are unsealed, we will place the burden on
the defendants to confirm that the docket entries we are unsealing, with or without
redactions, are consistent with the entries MHS concedes should be unsealed.
minimal redaction of this information in Doc. 173. (Doc. 291-4, at 216-17). We now
turn to the documents and redactions that remain in dispute.
The documents that MHS contends should be continuously sealed, or
alternatively redacted, along with the documents that MHS has simply proposed
redactions to, fall under the category of “judicial records” subject to the common
law right of access. (Docs. 160, 161, 173, 174, and 176). These documents relate to
a motion for summary judgment and a motion to file these documents under seal. As
to these records the Third Circuit has held that the presumptive right of access
applies to “pretrial motions of a nondiscovery nature, whether preliminary or
dispositive, and the material filed in connection therewith.” In re Cendant Corp., 260
F.3d at 192-93; see also Avandia, 924 F.3d at 672; Leucadia, 998 F.2d at 164. Thus,
there is a presumption that these documents should be unsealed unless the defendants
show that public disclosure of these documents “will work a clearly defined and
serious injury to the party seeking closure.” Avandia, 924 F.3d at 672 (internal
citations omitted). “Specifically, th[e] party [seeking protection] must demonstrate
that the material contains the type of information that courts will protect and that
there is good cause for continued application of an existing order.” In re Gabapentin
Patent Litigation, 312 F.Supp.2d 653, 664 (D.N.J. 2004) (citing Publicker, 733 F.2d
at 1070-71).
(1) We Will Deny MHS’s Request to Keep Exhibits to
Documents 161 and 176 Sealed.
MHS argues that there are exhibits attached to Documents 161 and 176 that
must remain sealed. (Doc. 291-2). In particular, MHS contends that these exhibits
contain information that was given pursuant to a Qualified Protective Order entered
in this case, and that the release of this information would harm not only A.B., whose
school and medical records are contained in these documents, but the medical
providers that disclosed this information. Additionally, MHS seeks to protect the
identifying information of its personnel and other nonparties, whose deposition
transcripts are contained in these documents.
(a) Medical Records from Third Party Providers
With respect to the documents that contain A.B.’s medical records from third
party providers, MHS contends that the medical providers who disclosed this
information will be harmed if these records are unsealed because they have an
obligation under the Health Insurance Portability and Accountability Act
(“HIPAA”) to keep these records confidential. Indeed, HIPAA’s general privacy rule
“places strict limitations on the ability of health care providers to release a patient’s
medical records . . . without the consent of the patient.” Rodriguez v. City of New
Brunswick, 2017 WL 5598217, at *6 (D.N.J. Nov. 21, 2017). While it is undisputed
that these records constitute protected health information under HIPAA, the statute
further provides that:
A covered entity may disclose protected health information in the
course of any judicial or administrative proceeding:
(i) In response to an order of a court or administrative
tribunal, provided that the covered entity discloses only
the protected health information expressly authorized by
such order; or
(ii) In response to a subpoena, discovery request, or other
lawful process, that is not accompanied by an order of a
court or administrative tribunal, if:
(A) The covered entity receives satisfactory
assurance ... from the party seeking the
information that reasonable efforts have been
made by such party to ensure that the
individual who is the subject of the protected
health information that has been requested
has been given notice of the request; or
(B) The covered entity receives satisfactory
assurance ... from the party seeking the
information that reasonable efforts have been
made by such party to secure a qualified
protective order that meets the requirements
of paragraph (e)(1)(v) of this section.
45 C.F.R. § 164.512(e)(1). Entities covered by HIPPA include “(1) a health plan, (2)
a health care clearinghouse, and (3) a health care provider.” 45 C.F.R. § 160.102.
Here, the third-party providers that disclosed A.B.’s treatment records are
undisputedly medical providers within the meaning of the statute. Further, these
providers disclosed A.B.’s medical records in compliance with this court’s orders,
which issued Qualified Protective Orders to protect this information. (Docs. 84, 106,
108). Thus, the medical providers in this case complied with HIPAA when they
provided this information pursuant to the court’s orders, and there would be no cause
of action against these providers for a violation of the statute. This would be so even
if A.B.’s parents, the plaintiffs in this case, had not consented to the release of A.B.’s
medical records. (Doc. 308-1). Moreover, MHS provides no legal authority for the
proposition that these providers would somehow be liable under HIPAA should the
court order the unsealing of these documents. Accordingly, the argument that these
providers would be harmed by the unsealing of these documents is unavailing and
does not meet the showing required by law to justify continued sealing; namely,
“that disclosure will work a clearly defined and serious injury to the party seeking
closure.” Avandia, 924 F.3d at 672 (quoting Miller v. Ind. Hosp., 16 F.3d 549, 551
(3d Cir. 1994) (internal quotations omitted))(emphasis added).
Next, MHS argues that A.B.’s interests would be harmed by the release of
her medical records. However, the plaintiffs in this case, A.B.’s parents, have
expressly consented to the release of her medical records from these providers. (Doc.
308-1). Indeed, both plaintiffs have signed a “HIPAA Privacy Authorization Form,”
which provides that the plaintiffs, as A.B.’s personal representatives, have
authorized the release of A.B.’s records, whether in the custody of the school or in
the custody of third-party providers, to the fullest extent allowable. (Id., at 2, 4).
Thus, MHS’s concern that A.B.’s interests would be harmed by the unsealing of
these records is unpersuasive given the explicit waiver of these privacy interests by
A.B.’s personal representatives.
Finally, MHS asserts that the unsealing of these documents would harm the
interests of third parties, particularly MHS personnel who were involved with A.B.’s
treatment or with decisions about her attendance at MHS. However, as we will
explain, in our view, redacting the names of these MHS personnel will provide
sufficient protection of their interests without resorting to the wholesale sealing of
these documents. Accordingly, because we find that MHS has not shown good cause
for the continued sealing of these documents in their entirety, we will order these
documents unsealed subject to specific redactions discussed in more detail below.
(b) A.B.’s School Records
MHS next argues that documents containing A.B.’s medical records that are
in the custody of MHS, as well as her school records, should be continuously sealed.
With respect to the medical records, MHS relies on the arguments it made
concerning the records disclosed by the third-party medical providers—that
disclosure of these records would violate HIPAA. For its part, The Inquirer argues
that MHS is not a “covered entity” under HIPAA, and thus would not be subject to
the statute’s requirements.
As we have explained, A.B.’s parents have expressly consented to the release
of these records. (Doc. 308-1). Thus, even if MHS was considered a “covered entity”
under HIPAA, releasing A.B.’s records upon the express consent of her parents, and
pursuant to a court order, would not violate the statute and subject MHS to liability.
Moreover, to the extent that MHS asserts that A.B.’s school records are protected
from disclosure under the Family Education and Privacy Rights Act (“FERPA”), as
The Inquirer points out, A.B.’s privacy interests under FERPA lie with her parents
until the age of 18. See 34 C.F.R. §§ 99.3-99.5. Accordingly, the plaintiffs’ express
consent to the release of these records would eliminate any concerns that MHS has
as it relates to disclosure of school records under FERPA, and thus, we will order
the unsealing of these documents as well.
(c) Expert Reports
Next, MHS asserts that the plaintiffs’ proposed expert reports, which are
attached to the plaintiffs’ opposition to summary judgment, should remain sealed, as
they are based entirely on information subject to HIPAA and disclosed pursuant to
the court’s Qualified Protective Orders. Moreover, MHS contends that these expert
reports are not docketed, the opportunity to challenge these reports has not ripened,
and these reports may never be admitted.
At the outset, MHS’s argument for continued sealing that relies on the
information provided by the third-party medical providers is unavailing, as we have
already decided that MHS has not shown good cause for the continued sealing of
this information based upon HIPAA-related concerns. Not only have these medical
providers complied with the protections of HIPAA, but A.B.’s parents have
expressly consented to the release of this information. Accordingly, the fact that
these reports are based on this medical information, standing alone, does not justify
their continued sealing.
Nor does the fact that the defendants have yet to challenge these expert reports
justify their continued sealing. MHS contends that the disclosure of these reports
which have not yet been rebutted by countervailing expert reports will be
“antithetical to the justification for the common law right of access.” (Doc. 291, at
24). However, the defendants cite to no legal authority for the proposition that expert
reports may only be unsealed after they have been rebutted, and our research has
yielded none that stands for the proposition that these proposed expert reports must
remain sealed. Instead, we are left with the guiding principle that a presumption of
public access applies to these reports which are part of the judicial record in this
case. In re Cendant Corp., 260 F.3d at 192-93. Given this presumption, in the
absence of any contrary authority, and having found that the information underlying
these reports should be disclosed, we conclude that the defendants have not shown
good cause for the continued sealing of these expert reports. Accordingly, we will
order these documents unsealed.
While we are ordering the unsealing of these documents, we recognize that
there are third-party privacy interests at stake. Accordingly, we will unseal these
documents subject to the minor redactions that we will discuss below.
(2) The Documents To Be Unsealed Shall Be Redacted To
Protect the Interests of Nonparties.
In the alternative to continued sealing, the defendants propose a litany of
redactions to over 1,000 pages of these sealed documents, arguing that these
redactions are necessary to protect the interests of A.B., the school, the medical
providers, and nonparties. However, after conducting a document-by-document
review of these pages, we find that many of the redactions that MHS proposes seek
to redact information concerning A.B.’s school and medical records, which we have
explained should be disclosed given the plaintiffs’ express consent. Further, while
MHS proposes redactions that seek to protect the identifying information of third
parties, a review of these proposed redactions reveals that numerous redactions are
overbroad and not narrowly tailored to the nonparties’ identifying information.
Accordingly, we will sustain some of the redactions that MHS has proposed but will
unseal the remainder of the documents without redactions.
First, the defendants have proposed redactions to a number of documents that
contain information relating to A.B.’s medical and school records. They have also
redacted information given by the third-party medical providers pursuant to the
Qualified Protective Order. Given that A.B.’s parents have expressly consented to
the release of A.B.’s records, both from the school and from the third-party
providers, we will order these documents unsealed without the redactions the
defendants propose.5
Additionally, the defendants proposed that the information contained in these
documents that relate to the plaintiffs’ proposed expert reports should be redacted.
Again, because we have determined that the defendants have not shown good cause
for the continued sealing of these documents, and because the proposed redactions
purport to redact all of the information contained in the expert reports, we find that
these documents should be unsealed without redactions.6
Finally, MHS proposes redactions on the basis of protecting third-party
identifying information. However, a review of these redactions reveals that MHS
has redacted more information than just the names and personal identifying
information of certain individuals. Indeed, while MHS has redacted the names of the
nonparties, including MHS personnel and medical providers, the defendants have
redacted much more than just identifying information. We agree with MHS that all
names of nonparties should be redacted, and to the extent that these redactions cover
the names, addresses, and family information of nonparties, we will sustain these
5 The defendants have proposed these redactions in yellow, green, and blue. (Doc.
291).
6 The defendants have proposed redactions concerning the expert reports in purple.
(Doc. 291).
redactions. However, the remainder of the information that MHS has redacted,
including the employment history of MHS personnel, job titles, and the like, should
be unredacted.
We reach this conclusion while noting that this is a somewhat closer question
since it may be possible through further investigation to tentatively identify some of
these third parties by reference to employment histories and job titles. The scope of
the redactions proposed by the MHS defendants, however, is in our judgment so
sweeping, that we cannot justify these additional redactions in light of the
presumption of public access which applies here. In re Cendant Corp., 260 F.3d at
192-93. A more narrowly tailored set of redactions supported by a more robust
showing of need would be necessary here to justify the continued sealing of this
information.
Further, there are certain redactions that MHS has proposed that cover the
names, identifying information, and mental health treatment of third-parties. MHS
has redacted almost entirely the deposition transcripts of certain individuals in this
case. Third party mental health treatment information is cloaked in particularly
compelling privacy interests which in our view far overcome and public right of
access. Upon our review, we find that these redactions are entirely appropriate, as
these deposition transcripts detail the mental health treatment of nonparties in this
case.7
In sum, we recognize that there are legitimate significant third-party privacy
interests at stake within these documents. In most instances we believe that redacting
the names and personal identifying information of all nonparties to this case will
achieve the goal of protecting these privacy interests. Additionally, there is no
question that the mental health treatment of nonparties should remain redacted.
However, we do not think that MHS should be entitled to redact other information
related to these third parties, whether out of an abundance of caution or fear of
embarrassment. Rather, in our view, redacting the names of nonparties and personal
information, including addresses or family information, sufficiently protects the
interests of the MHS personnel, medical providers, and other nonparties to this case.
Accordingly, these documents should be unsealed and redacted in the limited
manner we have described above.
C. Document 203-1 Will Remain Sealed.
As we have explained in our prior memorandum, Document 203-1 contains
findings made by the Pennsylvania Human Relations Commission (“PHRC”) in a
separate action filed with the PHRC against MHS and includes medical information
7 These redactions are proposed in orange, and the transcripts are docketed at Doc.
176-4, pages 1-158.
of a non-party child. (Doc. 203-1). The plaintiffs filed this document as an additional
exhibit to their opposition to the defendants’ motion for summary judgment. After
letters to the court from both plaintiffs’ and defendants’ counsel concerning the
public filing of the document, Chief Judge Conner ordered that the document be filed
under seal. (Doc. 207).
Our prior memorandum recognized that this document, if considered to be
part of the plaintiffs’ opposition to the motion for summary judgment, would
constitute a “judicial record” subject to the presumptive right of access. However,
we found good cause to override that presumption and justify the continued sealing
of this document. Now, The Inquirer has provided us with a decision out of the
Commonwealth Court, which unsealed a number of documents but did not unseal
the reproduced record filed with the Commonwealth Court, which included records
that were sealed by the PHRC. (Doc. 339-1, at 20). In its notice to the court, The
Inquirer contends that it “is informed and believes . . . that Complainant intends to
file a valid waiver with the PHRC, at which time the PHRC will unseal the agency
record, in whole or in part,” and that The Inquirer will then be able to request that
the Commonwealth Court unseal these records. (Doc. 339, at 3).
Again, we note that The Inquirer’s opposition to the defendants’ proposed
redactions and argument for continued sealing does not challenge our prior ruling
that Document 203-1 shall remain sealed. Moreover, the Commonwealth Court’s
decision does not override our prior finding of good cause for continued sealing of
this document. We also understand that these state proceedings may eventually alter
the balance of these public and private interests, and provide a pathway for
disclosure of this document. However, at present, given the Commonwealth Court’s
decision continuing the sealing of this document as well as part of the agency record,
we do not find it persuasive that The Inquirer believes the Complainant in the case
may file a valid waiver at some time in the future. At this time, there is nothing that
nullifies our prior finding of good cause to continue the sealing of this record, and
thus, Document 203-1 will presently remain sealed.
An appropriate order follows.
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
JULIE ELLEN WARTLUFT, et al., : Civil No. 1:16-CV-2145
:
Plaintiffs, :
: (Judge Jones)
v. :
: (Magistrate Judge Carlson)
THE MILTON HERSHEY SCHOOL :
AND SCHOOL TRUST, et al., :
:
Defendants. :
ORDER
Accordingly, for the reasons set forth in the accompanying Memorandum
Opinion, IT IS ORDERED THAT:
1. All of the documents that The Inquirer requests to unseal will be unsealed;
2. Documents 135-1—135-8, 161-2—161-7, 161-16—161-18, 161-20—
161-29, 161-31—161-37, 161-46, 161-54—161-60, 176-1—176-3, 176-5,
176-38, 176-40—176-41, 176-58, 176-62, 176-64—176-65, 176-67, 176-
69—176-70, 196-1 will be unsealed with no redactions;
3. The exhibits attached to Documents 161 and 176 that MHS contends
should remain sealed—Documents 161-1, 161-8, 161-11—161-15, 161-
19, 161-47—161-50, 161-61—161-62, 176-4, 176-7—176-37, 176-42—
176-44, 176-49—176-55, 176-60—176-61, and 176-66—shall be
unsealed subject to the minimal redactions we have outlined in the
accompanying memorandum to protect the interests of third parties8;
4. Documents 127, 161, Ex. 30, and 196-2, as well as the minimal redactions
to Document 173 that relate to these documents, shall be unsealed and
redacted in accordance with the defendants’ proposed redactions of these
documents; and
5. Document 203-1 shall remain sealed.
6. We recognize the significance and gravity of these judgments for
all parties. Therefore, IT IS FURTHER ORDERED as follows:
Implementation of this order will be STAYED for 10 days in order
to allow the litigants the opportunity to review the court’s order
and seeks further judicial review of this order, if they deem it
appropriate. Furthermore, with respect to redacted records, if the
parties do not seek further review of this decision, they shall tender
copies of stipulated, redacted records to the clerk for release on the
public docket within 30 days of the date of this order.
8 Again, we note that some of these exhibits as identified by the defendants do not
align with the docket entries in this case. We direct the defendants to identify the
correct docket entries as they are docketed with the court so as to ensure that the
correct entries are unsealed and redacted.
So ordered this 6th day of March 2020.
/s/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge