6.20 SAMPLE PLEADINGS FOR ORDER TO SEAL RECORDS

• 6.21 Sample Motion for Order to Seal Records
• 6.22 Sample Sealed Data Form (Sealed Record)
• 6.23 Sample (Proposed) Order to Seal Records

6.21 Sample Motion for Order to Seal Records

I. Relief Requested.

COMES NOW the Seattle-King County Department of Public Health, by and through its attorney(s) of record, and respectfully requests the Court to seal the following record in this proceeding: document entitled Sealed Data.

II. Statement of Facts.

The local health officer has filed a petition for involuntary isolation or quarantine pursuant to WAC 246-100-040 because he/she has reason to believe that Respondent(s) is, or is suspected to be, infected with, exposed to, or contaminated with a communicable disease or chemical, biological, or radiological agent that could spread to or contaminate others if remedial action is not taken. This action thus involves health care information regarding Respondent(s).

III. Statement of Issues.

Is sealing of the Sealed Data justified by compelling privacy concerns that outweigh the public interest in access to the court record?

IV. Evidence Relied Upon.

This Motion is based upon the records and documents contained in this file.

V. Authority.

After a hearing on the motion to seal, the court may order court files and records to be sealed if the court makes and enters written findings that the specific sealing or redaction is justified by compelling privacy or safety concerns that outweigh the public interest in access to the court record. GR 15(c). Here compelling circumstances exist that require sealing the Sealed Data; failure to do so would result in the disclosure of protected health care information. Nor would redaction of the Sealed Data suffice to protect the information from disclosure.

The Sealed Data identify Respondent(s) and the place(s) of detention. Disclosure of the identity of Respondent(s) would result in the disclosure of protected health care information. Similarly, disclosure of the place of detention creates a reasonable basis to believe that the information could be used to identify the individual(s). It is not possible to redact the Sealed Data in a way that would protect the identity of Respondent(s).

The Washington legislature has found that: “Health care information is personal and sensitive information that if improperly used or released may do significant harm to a patient’s interests in privacy, health care, or other interests.” RCW 70.02.005(1). Health care providers are generally prohibited from disclosing health care information without the patient’s written authorization. Further, the federal Privacy Rule implementing the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), Public Law 104-191, defines and limits the circumstances in which protected health information may be disclosed. 45 C.F.R. § 164.502(a). Health information generally may be disclosed if it is de-identified so “there is no reasonable basis to believe that the information can be used to identify an individual”. 45 C.F.R.§ 164.514(a).

Indeed, local health departments are required to establish procedures to ensure the confidentiality of health care information concerning a notifiable condition¹. WAC 246-101-515(1) provides:

Local health officers or local health departments shall establish and maintain confidentiality procedures related to employee handling of all reports of cases and suspected cases, prohibiting disclosure of report information identifying an individual case or suspected cases except:

(a) To employees of the local health department, or other official agencies needing to know for the purpose of administering public health laws and these regulations;


(b) To health care providers, specific designees of health care facilities, laboratory directors, and others for the purpose of collecting additional information about a case or suspected case as required for disease prevention and control....  

Sealing of the document entitled Sealed Data is consistent with state law. RCW 70.02.050(1) provides, in part, that a health care provider may disclose health care information if the disclosure is:

(d) To any person if the health care provider... reasonably believes that disclosure will avoid or minimize an imminent danger to the health or safety of the patient or any other individual, however, there is no obligation under this chapter on the part of the provider... to so disclose.

(Emphasis added.) Further, 45 C.F.R. § 164.512(j)(1) permits disclosure of protected

health care information if the provider in good faith believes that the use or disclosure:

(A) Is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public; and

(B)Is to a person or persons reasonably able to prevent or lessen the threat....

Here, it is necessary to disclose the protected health care information to the Court for the purpose of obtaining an order for the isolation or quarantine, thus minimizing an imminent danger to the health of the patient and other persons.

It is not, however, necessary that the public have access to the identity of the individuals whose health care is the subject of this action in order to avoid or minimize an imminent danger to the health or safety of the patient or other individual. The public already has access to the other records in this case, which discuss the nature of the illness and the justification for isolation or quarantine.

The protection of the identity of the individuals whose health care is the subject of this action is justified by compelling privacy concerns that outweigh the public’s interest in access to the record. Accordingly, the Seattle-King County Department of Public Health requests that the document entitled Sealed Data which identifies Respondent(s) and the Location of Detention be sealed, that the Order to Seal Records be effective the date the Order is signed by the Court, and that the document be treated as confidential and not available to persons other than the parties, their counsel of record, the King County Sheriff’s Office and other law enforcement personnel if necessary to carry out the terms of any order issued in this case, and other designated individuals as the Court deems appropriate, or as mutually agreed upon by the parties to this action.

DATED this _______ day of ________________, 200____.

Respectfully submitted,

6.22 Sample Sealed Data Form (Sealed Record)

[NOTE TO ATTORNEYS:

If you determine to move to seal the document(s) that identify respondent(s) and the place of detention, you should consult GR 15 regarding the tests for sealing of records. In addition, you may wish to consult with your Clerk of the Court as to the best procedure to follow in your jurisdiction to seal records.

In King County, it is recommended that the document which the party wishes to have sealed be included in the judge’s working copies provided pursuant to LR 7(b)(3)(B), but NOT filed with the Clerk, as such filing would result in the information becoming public, even if only temporarily until the judge rules on the motion to seal. The order to seal must, however, be public, and should be drafted accordingly. In King County, it is anticipated that the respondents will be identified in the caption, and in other pleadings only by their initials in order to avoid inadvertent disclosure of health care information.]

Person(s)

Name	Date of Birth	Address	Identity in Pleadings

Group

Identifying Description	Identity in Pleadings

Location of Detention: ______________________________________

      ______________________________________

DATED this ______ day of ________________, 200___.

Respectfully submitted,

NOTICE TO INDIVIDUALS IN RECEIPT OF THIS CONFIDENTIAL DATA:

THIS INFORMATION HAS BEEN DISCLOSED TO YOU FROM RECORDS WHOSE CONFIDENTIALITY IS PROTECTED BY STATE LAW. STATE LAW PROHIBITS YOU FROM MAKING ANY FURTHER DISCLOSURE OF IT EXCEPT AS AUTHORIZED BY STATE LAW.

6.23 Sample (Proposed) Order to Seal Records

THIS MATTER, having come on for hearing before the undersigned Judge/Court Commissioner, the Court having considered the pleadings and arguments of the parties,

NOW, THEREFORE THE COURT FINDS that:

1. The document entitled Sealed Data identifies Respondent(s) and the place(s) of detention.

2. Disclosure of the identity of Respondent(s) would result in the disclosure of protected health care information, which is protected from disclosure by statute.

3. Disclosure of the place of detention creates a reasonable basis to believe that the information could be used to identify the individual(s), and thus is protected from disclosure by statute.

4. Sealing of the information is thereby permitted by statute.

5. Sealing of the information is justified by compelling privacy concerns that outweigh the public interest in access to information in the Sealed Data.

6. Redaction of the Sealed Data would not suffice to protect the information from disclosure.

ACCORDINGLY, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

1. The Clerk of the Court shall seal the document entitled Sealed Data.

2. The Clerk of the Court is directed to file this Order to Seal Records effective this date, being the date the Order to Seal Records is signed by the Court.

3. Access to the sealed document is limited to the respective parties to this proceeding; their counsel of record; the King County Sheriff’s Office, and other law enforcement personnel if necessary to carry out the terms of any order issued in this matter; and such other individuals as the parties to this proceeding may mutually agree, or the Court may designate to be allowed access to the same.

4. Access to the sealed record is available only in the Clerk’s Office.

5. In the event of an application for the opening of the sealed document, a hearing shall be noted and notice shall be given or attempted to the following persons in addition to the parties, or their counsel if represented:

   __________________________________________________________________________________

DONE IN OPEN COURT this _______ day of _________________, 200____.

__________________________________________
JUDGE/COURT COMMISSIONER

Presented by: