United States District Court, E.D. North Carolina, Southern Division
B. Jones Jr., United States Magistrate Judge
matter comes before the court on Defendant's motion for
redaction of personal medical information in his sentencing
transcript citing the Health Insurance Portability and
Accountability Act ("HIPAA"). [DE-64,
-67]. The government did not respond to the
motion, and the time within which to do so has expired.
effectuate Defendant's request, the court would be
required to seal the sentencing transcript and order a
redacted version filed in the public record. This would
restrict the public's access to certain information
presented to the court at sentencing. "[T]he courts of
this country recognize a general right to inspect and copy
public records and documents, including judicial records and
documents." Nixon v. Warner Commc'ns, Inc.,
435 U.S. 589, 597 (1978) (internal footnote omitted). The
Fourth Circuit has directed that before denying access to
publicly filed documents the court must first determine if
the source of the public's right to access the documents
is derived from the common law or from the First Amendment.
Stone v. Univ. of Md., 855 F.2d 178, 180 (4th Cir.
1988). "[T]he common law presumption in favor of access
attaches to all 'judicial records and documents, '
[while] the First Amendment guarantee of access has been
extended only to particular judicial records and documents[,
]" such as those filed in connection with a motion for
summary judgment. Id. (quoting Nixon, 435
U.S. at 597 & citing Rushford v. New Yorker Magazine,
Inc., 846 F.2d 249, 253 (4th Cir. 1988); In re
Washington Post Co., 807 F.2d 383, 390 (4th Cir. 1986)).
The common law presumption of access maybe overcome "if
competing interests outweigh the interest in access, "
while access under the First Amendment "may be denied
only on the basis of a compelling governmental interest, and
only if the denial is narrowly tailored to serve that
interest." Id. "For a right of access to
exist under either standard, however, the document must first
qualify as a judicial record." 360 Mortg. Grp., LLC
v. Stonegate Mortg. Corp., No. 5:14-CV-00310-F, 2016 WL
4939308, at *1 (E.D. N.C. Sept. 14, 2016) (unpublished)
(citing In re U.S. for an Order Pursuant to 18 U.S.C
Section 2703(D), 707 F.3d 283, 290 (4th Cir. 2013)). A
"judicial record" is one that "play[s] a role
in the adjudicative process, or adjudicate[s] substantive
rights." Id. (quoting In re U.S., 101
F.3d at 290).
the sentencing transcript is a judicial record, because it is
the court's record of the sentencing proceeding at which
defendant's substantive rights were adjudicated. The
common law presumption of access attaches to the sentencing
transcript due to its nature as a judicial record. In re
U.S., 707 F.3d at 291 (finding that the common law
presumption attached to documents that the court concluded
were "judicial records, " but that further inquiry
was necessary to determine whether a First Amendment right to
access also existed). To determine whether a right to access
under the First Amendment attaches, the court considers
"(1) whether the place and process have historically
been open to the press and general public, and (2) whether
public access plays a significant positive role in the
functioning of the particular process in question."
Id. (citations and internal quotation marks
omitted). Sentencing proceedings have historically been open
to the public, and the public's access is vital to
promoting "public confidence in the criminal justice
system." United States v. Harris, No. CR 12-156
(CKK), 2016 WL 4543983, at *3 (D.D.C. Aug. 31, 2016)
(unpublished) (recognizing that the public's access to
sentencing memoranda permits public oversight at sentencing).
Therefore, the First Amendment right to access applies to the
sentencing transcript. See United States v.
Alcantara, 396 F.3d 189, 199 (2d Cir. 2005) (holding
that a "qualified First Amendment right of public access
attaches to sentencing proceedings.").
order to overcome the right to access, Defendant must present
a compelling interest. Defendant contends his medical and
mental health information is protected by HIPAA. Defendant
has cited no authority for the proposition that HIPAA applies
to Defendant's disclosure of his own medical information
in a criminal proceeding. Furthermore, because Defendant
"has chosen to introduce the medical information in an
attempt to mitigate his sentence, " and the court heard
and considered the information in a public sentencing
proceeding, the public's right to access is not
outweighed by Defendant's privacy interest in the medical
information. United States v. Dare, 568 F.Supp.2d
242, 244 (N.D.N.Y. 2008) (unsealing sentencing memoranda
containing Defendant's medical information). Accordingly,
the motion for redaction is denied.
 The original motion [DE-64] was not
signed by Defendant, however he corrected the deficiency and
the motion ...