United States District Court, M.D. Alabama
PHASE 2A OPINION AND ORDER ON MOTION TO
H. THOMPSON, UNITED STATES DISTRICT JUDGE.
issue the court confronts in this extended litigation is
whether to redact the trial testimony of a witness.
in December 2016, the court conducted a two-month bench trial
concerning the constitutionality of mental-health care in the
Alabama Department of Corrections (ADOC) . See Braggs v.
Dunn, ---F.Supp.3d ---, 2017 WL 2773833 (M.D. Ala. June
27, 2017) (Thompson, J.) (finding liability based on trial
testimony and other evidence). 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 the defendants have failed
to show good cause warranting redaction of this particular
information from Dr. Tytell's testimony.
"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 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."
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, suicide
method, and whether they were receiving any mental-health
care at the time. 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." Def. Br. (doc. no.
1314) at 2.
on its 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. First, much of the
information relating to three of the six suicides 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'1 Archives & Records
Admin, v. Favish, 541 U.S. 157, 168-69, (2004)
("[Privacy] right may in some cases be itself violated
by improperly interfering with 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 to the
information in Dr. Tytell's testimony. Ld. (explaining
the nature of the privacy interests held by surviving family
members in the FOIA context) . Lastly, the information the
defendants seek to redact is not comparable to the medical
and mental-health information that has 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.
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 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.
* * *
it is ORDERED that the defendants' motion to redact
portions of Dr. David Tytell's ...