Dunn et al v. Thomas et al

Filing 1348

PHASE 2A OPINION AND ORDER ON MOTION TO REDACT: It is ORDERED that the defendants' motion to redact portions of Dr. David Tytell's transcript (doc. no. 1314 ) is denied. Signed by Honorable Judge Myron H. Thompson on 8/25/2017. (kh, )

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE
MIDDLE DISTRICT OF ALABAMA, NORTHERN DIVISION
EDWARD BRAGGS, et al.,
Plaintiffs,
v.
JEFFERSON S. DUNN, in his
official capacity as
Commissioner of
the Alabama Department of
Corrections, et al.,
Defendants.

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CIVIL ACTION NO.
2:14cv601-MHT
(WO)

PHASE 2A OPINION AND ORDER ON MOTION TO REDACT
The

issue

the

court

confronts

in

this

extended

litigation is whether to redact the trial testimony of
a witness.
Beginning in December 2016, the court conducted a
two-month bench trial concerning the constitutionality
of

mental-health

care

Corrections (ADOC).
3d

---,

2017

(Thompson,

WL

J.)

in

the

Alabama

Department

of

See Braggs v. Dunn, --- F. Supp.

2773833
(finding

(M.D.

Ala.

liability

testimony and other evidence).

June
based

27,

2017)

on

trial

The defendants have now

moved to redact the transcript of the trial testimony
of Dr. David Tytell, the chief psychologist of ADOC.
The plaintiffs oppose this motion.

The court finds

that

show

the

defendants

warranting

redaction

have
of

failed
this

to

particular

good

cause

information

from Dr. Tytell’s testimony.
A "strong common law presumption of public access"
applies to trial records.

Wilson v. Am. Motors Corp.,

759 F.2d 1568, 1571 (11th Cir. 1985).

This common-law

right of access, however, may be overcome by a showing
of good cause, which requires “balancing the asserted
right of access against the other party's interest in
keeping

the

information

confidential.”

Romero

v.

Drummond Co., 480 F.3d 1234, 1246 (11th Cir. 2007).
Whether good cause exists depends on “the nature and
character of information in question.”

Id.

Factors to

consider include: “whether allowing access would impair
court functions or harm legitimate privacy interests,
the degree of and likelihood of injury if made public,
the reliability of the information, whether there will
2

be

an

opportunity

to

respond

to

the

information,

whether the information concerns public officials or
public concerns, and the availability of a less onerous
alternative to sealing the documents.”

Id.

The portions that the defendants seek to redact are
general descriptions of prisoners who committed suicide
while in segregation, referred to by their initials,
including their history of suicide attempts, housing
arrangements,
receiving

any

suicide

method,

mental-health

and

care

whether
at

the

they
time.

were
The

defendants argue that good cause exists for redacting
this information because “it includes sensitive medical
and mental health information surrounding the deaths of
identifiable inmates.”
Based

on

its

Def. Br. (doc. no. 1314) at 2.

review

of

the

information

in

Dr.

Tytell’s testimony, the court finds that any privacy
interest in the information at issue is minimal, and
that any harm that would arise from public access is
unlikely.
three

of

First, much of the information relating to
the

six

suicides
3

included

in

Dr.

Tytell's

testimony

was

already

reported

by

various

media

outlets, minimizing any harm that may arise from this
particular

testimony

being

public.

Second,

the

prisoners whose suicides are at issue have no privacy
interests

because

they

are

deceased.

See

Nat'l

Archives & Records Admin. v. Favish, 541 U.S. 157, 168–
69,

(2004)

itself

(“[Privacy]

violated

by

right

may

improperly

in

some

interfering

cases
with

be
the

character or memory of a deceased relative, but it is
the right of the living, and not that of the dead,
which is recognized.”) (quoting Schuyler v. Curtis, 147
N.Y. 434, 447 (1895)).

And the defendants have not

shown that surviving family members have asserted their
privacy interests “in the character and memory of the
deceased”

with

regards

Tytell’s testimony.

to

the

information

in

Dr.

Id. (explaining the nature of the

privacy interests held by surviving family members in
the

FOIA

defendants
medical

context).
seek

and

to

Lastly,
redact

is

mental-health

the
not

information
comparable

information
4

that

to

has

the
the
been

subject

to

previous

protective

orders

in

this

case:

medical records of prisoners, and their testimony about
their mental-health symptoms, diagnoses, and treatment.
Dr.

Tytell's

testimony

regarding

prison

suicides

is

much less detailed and sensitive, due to the level of
generality

with

which

Dr.

Tytell

spoke,

and

the

otherwise publicly available information regarding the
same incidents.
On

the

other

hand,

the

portion

of

Dr.

Tytell’s

testimony at issue involves a public concern that is
“at the heart of the interest protected by the right of
access: the citizen’s desire to keep a watchful eye on
the workings of public agencies and the operation of
government.”

Romero,

480

F.3d

at

1246

(internal

quotation omitted) (citing Nixon v. Warner Commc’ns,
Inc.,

435

U.S.

589,

598

(1978)).

The

nature

and

consequences of the defendants’ segregation practices,
including

suicides

within

segregation

units,

are

a

major part of the court’s liability findings in this
case; the public has a strong interest in learning of
5

these practices and their consequences, as reflected in
these suicides, as well as an interest in reviewing the
factual basis for the court’s findings.

Braggs, ---

F.Supp.2d at ---. 2017 WL 2773833, at *45-52.

Given

the weight of the public concern at stake, the minimal
privacy interests articulated by the defendants do not
constitute good cause for restricting public access of
the trial record.
* * *
Accordingly,
motion

to

it

redact

is

ORDERED

portions

of

that
Dr.

the

defendants’

David

Tytell’s

transcript (doc. no. 1314) is denied.
DONE, this the 25th day of August, 2017.
/s/ Myron H. Thompson
UNITED STATES DISTRICT JUDGE