BURTNER v. PENNSYLVANIA STATE POLICE
Filing
11
MEMORANDUM ORDER granting in part and denying in part 5 Motion to Seal Case; granting 7 Motion to Intervene for the reasons set forth more fully in the Memorandum Order itself. Signed by Magistrate Judge Maureen P. Kelly on 11/5/2013. (bb)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
JEFFREY L. BURTNER,
Plaintiff,
vs.
PENNSYLVANIA STATE POLICE,
Defendant.
)
) Civil Action No. 13-891
)
) Magistrate Judge Maureen P. Kelly
)
) Re: ECF Nos. 5, 7
)
MEMORANDUM ORDER
KELLY, Magistrate Judge
On June 25, 2013, Plaintiff Jeffrey L. Burtner (“Plaintiff”), commenced this action
bringing a claim against the Pennsylvania State Police (“PSP”) pursuant to 18 U.S.C. § 925A,
alleging that the PSP erroneously denied Plaintiff the purchase of a firearm. ECF No. 1. The
parties apparently resolved their differences and entered into a settlement agreement (“the
Settlement Agreement”) on October 9, 2013. See ECF No. 10, ¶ 4.
On October 4, 2013, just prior to the Settlement Agreement being reached, Plaintiff and
PSP filed a Joint Motion to Seal, ECF No. 5, in which they contend that the judicial record
contains personal and confidential information which should not be subject to public scrutiny
and seek to seal “all records pertaining to this matter.” Id. at p. 2. On October 9, 2013, the same
date that the Settlement Agreement was entered into, Trib Total Media, Inc. (“the Trib”) filed a
Motion to Intervene and Object to the Joint Motion to Seal, ECF No. 7, in which the Trib
requests leave to intervene in the case in order to oppose the Joint Motion to Seal. On October
16, 2013, Plaintiff filed a Brief in Opposition of Intervenor’s Objections to Sealing the Record,
ECF No. 9, and on October 10, 2013, the PSP filed a Response to the Trib’s Motion to Intervene
and Object to the Motion to Seal. ECF No. 10. Accordingly, both the Joint Motion to Seal
submitted on behalf of Plaintiff and the PSP, and the Trib’s Motion to Intervene and Object to
the Joint Motion to Seal are ripe for review.
The Trib’s Motion to Intervene need not detain the Court for long as, under
circumstances substantially similar to those presently before the Court, the United States Court
of Appeals for the Third Circuit has held that newspapers seeking to intervene in a case in order
to challenge to a confidentiality order met the requirements of Federal Rule of Civil Procedure
24(b)(2), pertaining to permissive intervention and that the Motion to Intervene should have been
granted by the district court. Pansy v. Borough of Stroudsburg, 23 F.3d 772, 778 (3d Cir. 1994).
Moreover, neither Plaintiff nor the PSP have objected to the Trib intervening in this matter. In
fact, Plaintiff has seemingly conceded that the Motion to Intervene is properly granted having
referred to the Trib as “intervenor” in his reply brief. See ECF No. 9 (“Plaintiff’s Brief in
Opposition to Intervenor’s Objections to Sealing the Record”) (emphasis added). Accordingly,
the Trib’s Motion to Intervene will be granted.
The question remains, however, whether the entire judicial record in this case should be
sealed as requested in the Joint Motion to Seal. The Court notes at the outset that, although the
parties purport to disagree on the issue, the specific information Plaintiff seeks to protect and the
information the Trib seeks to obtain are clearly different. Notwithstanding the joint request of
Plaintiff and the PSP that the entire record be sealed, it is evident from Plaintiff’s reply brief filed
in opposition to the Trib’s objections to sealing the record that Plaintiff is concerned with the
confidentiality of his medical and mental health records. See ECF No. 9. The Trib, however,
has clearly stated that it is not requesting public access to any of Plaintiff’s medical records but
rather is only seeking public access to the terms of the Settlement Agreement entered into
between the parties and information relative to misconduct by the PSP in denying Plaintiff’s
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application for a firearm. ECF No. 7, p. 4. Thus, to the extent that Plaintiff asks that information
contained in his medical and mental health records be sealed, the Joint Motion to Seal is, in fact,
unopposed.
Moreover, Plaintiff has represented, and the Trib does not dispute, that the privacy,
security, and confidentiality of health information is protected under the Health Insurance
Portability & Accountability Act of 1996 (“HIPAA”), Pub. L. 104–191, 110 Stat. 1936 (codified
at 42 U.S.C. § 1320d notes). See Cassidy v. Pocono Medical Center, 2013 WL 2403572, at *1
n.2 (M.D. Pa. May 31, 2013). Nor is it disputed that confidentiality of mental health records is
strictly protected under the Protection and Advocacy for Mentally Ill Individuals Act, 42 U.S.C.
§ 10806. As such, the Joint Motion to Seal with respect to information contained in Plaintiff’s
medical and mental health records will be granted.
With respect to the Settlement Agreement, it is well established that a settlement
agreement that has neither been filed with, nor interpreted or enforced by, the Court is not a
“judicial record” accessible under the right to know doctrine. Pansy v. Borough of Stroudsburg,
23 F.3d at 781-783. The Trib, however, seeks to prevent the Settlement Agreement from being
sealed so that it may access the Settlement Agreement pursuant to the Pennsylvania Right to
Know Act, 65 Pa. Stat. Ann. §§ 66.1-4, which is “a matter independent of the right to access
doctrine.” Pansy v. Stroudsburg, 23 F.3d at 783-84. See ECF No. 7, ¶ 10. Under such
circumstances, “[a] party wishing to obtain an order of protection must demonstrate that “good
cause” exists for the order of protection.” West Penn Allegheny Health System, Inc. v. UPMC,
2012 WL 512681, at *4 (W.D. Pa. Feb. 14, 2012), citing Pansy v. Borough of Stroudsburg, 23
F.3d at 786.
“Good cause is established on a showing that disclosure will work a clearly
defined and serious injury to the party seeking closure. The injury must be
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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,” do not support a good cause
showing. Cipollone v. Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir.
1986), cert. denied, 484 U.S. 976 ... (1987). The burden of justifying the
confidentiality of each and every document sought to be covered by a
protective order remains on the party seeking the order. Id. at 1122.
Pansy v. Borough of Stroudsburg, 23 F.3d at 786-87.1
Although the United States Court of Appeals for the Third Circuit has identified a
number of factors relevant to a district court’s inquiry into whether “good cause” exists, this
Court finds that those factors need not be addressed here given the unique circumstances of this
case.2 First, as already discussed, the information that Plaintiff seeks to protect from public
scrutiny is his medical and mental health records. To the extent that Plaintiff’s medical and
mental health records are referred to in the Settlement Agreement, the Court has already found
that the information contained in those records is properly sealed. Thus, whether Plaintiff has
otherwise shown good cause to keep those records private is of little import.
Second, because Plaintiff’s arguments in support of sealing the record revolve around his
medical and mental health records, he has not addressed nor shown good cause for why the
remainder of the record or the remaining terms of the Settlement Agreement, should not be made
public. Plaintiff, therefore, has failed to meet his burden.
1
It should be noted here that although the Settlement Agreement has not been filed with the Court, “[c]ourts have
inherent power to grant orders of confidentiality over materials not in the court file.” Pansy v. Borough of
Stroudsburg, 23 F.3d at 785, citing Seattle Times Co. v. Rhinehart, 467 U.S. 20, 33 n.19 (1984).
2
Those factors are: 1) whether disclosure would 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 would 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 would 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. Id. at *5, citing Glenmede Trust Co. v. Thompson, 56 F.3d 476, 483 (3d Cir. 1995).
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Third, it is not without significance that the PSP, which is the government agency whose
alleged misconduct the Trib seeks to make public, is not the party seeking to seal the record.3 In
fact, the PSP has represented that it “does not have any independent desire to seal the record in
this case,” and that it is the PSP’s position that “the Trib can request the settlement agreement
following the proper procedure for a Right to Know request under Pennsylvania Law.” ECF No.
10, ¶¶ 3, 7. See Pansy v. Borough of Stroudsburg, 23 F.3d at 788 (“[i]f a settlement agreement
involves issues or parties of a public nature, and involves matters of legitimate public concern,
that should be a factor weighing against entering or maintaining an order of confidentiality”).4
This Court, therefore, concludes that the record in this matter, including the Settlement
Agreement, will not be sealed except to the extent that it contains information relative to
Plaintiff’s medical or mental health records, treatment or procedures.5
Accordingly, the following Order is entered:
AND NOW this 5th day of November, 2013, upon consideration of Plaintiff’s Motion to
Seal and the Trib’s Motion to Intervene and Object to Motion to Seal, and for the reasons set
forth above, IT IS HEREBY ORDERED that the Motion to Intervene, ECF No. 7, is granted;
and that the Motion to Seal, ECF No. 5, is granted in part and denied in part. The Motion to Seal
is granted with respect to any information pertaining to Plaintiff’s medical or mental health
3
The Court notes that the PSP now contends that the caption of the Joint Motion to Seal is a misnomer because the
PSP merely agreed that it would not oppose the Motion. ECF No. 10, ¶ 3.
4
The Court also notes that to the extent Plaintiff argues that the public interest in encouraging settlement of private
litigations would be furthered by protecting his private information and sealing the record in this case, the Court in
Pansy has held that a generalized interest in encouraging settlements is insufficient and that courts should require “a
particularized showing of the need for confidentiality in reaching a settlement.” 23 F.3d at 788. Here, Plaintiff and
the PSP have already settled the case and did so without a ruling from the Court on the Motion to Seal. As such,
reaching the settlement could not have been contingent on maintaining confidentiality. See ECF No. 10, ¶ 4.
5
Under the provisions of the Pennsylvania Right to Know Act, any request by the Trib to gain access to the
Settlement Agreement pursuant to that statute would necessarily be restricted by this Order. 65 Pa. Stat. Ann. §
66.1(2). See Pansy v. Borough of Stroudsburg, 23 F.3d at 784, n.13.
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records, treatment or procedures, including any such information that may be contained in the
Settlement Agreement. The Motion to Seal is denied in all other respects.
In accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1), and Rule 72.C.2 of
the Local Rules of Court, the parties are allowed fourteen (14) days from the date of this Order to
file an appeal to the District Judge which includes the basis for objection to this Order. Any
appeal is to be submitted to the Clerk of Court, United States District Court, 700 Grant Street,
Room 3110, Pittsburgh, PA 15219. Failure to file a timely appeal will constitute a waiver of any
appellate rights.
BY THE COURT:
/s/ Maureen P. Kelly
MAUREEN P. KELLY
UNITED STATES MAGISTRATE JUDGE
cc:
All Counsel of Record Via CM-ECF
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