Fifth District Court of Appeal Won’t Lift Secrecy

Wednesday, December 5, 2001

Page 7

Perspectives (Column)

Fifth District Court of Appeal Won’t Lift Secrecy

By ROGER M. GRACE

The Fifth District Court of Appeal is sticking by its refusal to identify by name the appellant in a case it decided Nov. 1.

In an order filed Monday and made public yesterday afternoon, the court denied a request by this newspaper to unseal records in the case and to designate the appellant, Dr. P. James Nugent, by his actual name. The case, reported at 93 Cal.App.4th 607, retains the caption of Unnamed Physician v. Board of Trustees of Saint Agnes Medical Center.

Nugent, who was found by medical investigators to have provided shoddy care to patients, sued in Fresno Superior Court to block the hospital from putting restrictions on his privileges. He sued in his own name, which was used throughout proceedings in the trial court, in the Court of Appeal when he filed two writ petitions, in the California Supreme Court where he sought review of the denial of one of the petitions, and in the Court of Appeal in connection with his appeal—that is, up until the time the Nov. 1 opinion was filed. The Fifth District, in issuing its opinion, extended anonymity to Nugent, a litigant in the public courts.

In its Dec. 3 order, the Fifth District did not expressly address the request that it name the appellant. After ordering that the opinion be modified to correct a date that’s recited, the order, signed by Presiding Justice James Ardaiz and concurred in by Justice Rebecca Wiseman, said this:

The request to modify the opinion to include findings pursuant to California Rules of Court, rule 243.1 is denied.

A. The record, when filed with this court, was sealed by order of the trial court and thus this court was not required to make findings pursuant to rule 243.1. (Cal. Rules of Court, rule 12.5(c)(1).) The conditional nature of the trial court’s order, sealing the record only to provide an opportunity for appellate court review of its decision not to seal the record, does not change the sealed nature of the record upon filing in this court. No other grounds for unsealing the record pursuant to rule 12.5(d)(1) have been raised.

B. Even if the July 19, 2001, order that the entire record remain sealed required express findings pursuant to rule 243.1, after considering the entire record, we would order the entire record sealed based on the following findings: There exist overriding interests that overcomes the right of the public access to the records. Without an order sealing the record, the physician in this case would be forced to make prematurely public allegations that he provided substandard medical care in an effort to force the hospital to comply with statutorily mandated procedural requirements during the private peer review. The legislative delegation to the private sector of professional peer review recognized the delicate balance between a physician’s right to a fairly conducted peer review and the hospital’s and public’s interest in assuring high quality medical standards. (Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 10; Shacket v. Osteopathic Medical Board (1996) 51 Cal.App.4th 223, 231.) Requiring premature publication of allegations of substandard practice in order to enforce the requirements of Business and Professions Code section 809 et seq. would prejudice the balance created and intended by the Legislature. The order sealing the entire record is narrowly tailored as it is not practical to seal only portions of the record. Essentially every document references the allegations made against the physician and we can conceive of no less restrictive means to achieve protections of the overriding interests identified.

C. Finally, even if the interests identified in paragraph B is found insufficient to justify sealing the record, we would order unsealed only that portion of the record which does not contain information identifying patients and documents received from the National Practitioner Data Bank. These documents are covered by express legislative prohibitions from disclosure (see Civ. Code, § 56 [patient identifying information], 42 U.S.C. § 11137 and 45 C.F.R. § 60.13 [documents filed with the National Practitioner Data Bank]) and thus there exist overriding interests that overcome the right of the public access to the records. The overriding interests support sealing of those records which include the names and other identifying information of patients, and those documents in the record received from the National Practitioner Data Bank, in order to avoid the substantial probability of prejudice to these interests.

Ardaiz starts out by saying that the appeals court did not have to make findings before sealing the record because it was the trial judge who had done the sealing. This is at odds with what he said in the opinion; there, he wrote: “On July 19, this court reconsidered the trial court’s decision not to seal the record, and ordered that the record be filed under seal.”

Anyway, Ardaiz plays games with words and engages in a disingenuous circumvention of the requirement of the rules of court.

The rules require that a trial court make certain findings—specified by the California Supreme Court in NBC Subsidiary (KNBC-TV), Inc. v. Superior Court (1999) 20 Cal.4th 1178—before sealing any documents. Rule 243.1(d) says that a court may order sealing “only if it expressly finds that: [¶] (1) There exists an overriding interest that overcomes the right of public access to the record; [¶] (2) The overriding interest supports sealing the record; [¶] (3) A substantial probability exists that the overriding interest will be prejudiced if the record is not sealed; [¶] (4) The proposed sealing is narrowly tailored; and [¶] (5) No less restrictive means exist to achieve the overriding interest.”

Rule 12.5(e) mandates that the appeals court make the findings specified in Rule 243.1 before sealing records that were not sealed in the trial court. In other words, records in the appellate court may be sealed only if the findings were made at one level or the other.

In Nugent’s case, the trial judge did not find circumstances warranting a sealing. He ordered that the record not be sealed. Nugent brought two writ petitions in the Court of Appeal challenging that order; when he appealed one of the denials, the Supreme Court, in denying review, also denied Nugent’s motion to seal the record in that court.

The record did come up to the Court of Appeal under seal—not because the trial court had determined that the prerequisites for sealing had been met, but merely to maintain the status quo. Given that the trial court had the power to order a sealing “only” if it found that the prerequisites were met, it exceeded its jurisdiction in ordering the sealing on the basis that it did.

Ardaiz says that his panel need not make the findings under Rule 243.1 because the record came to it sealed. Inherent in the rules is the assumption that the record will only come to the appellate court sealed if the trial judge first made the required findings. Rule 12.5(e) says:

(1) A record that was filed or lodged publicly in the trial court and was not ordered sealed by that court must not be filed under seal in the reviewing court.

(2) A record that was not previously filed in the trial court must not be filed under seal without a reviewing court order.

(A) The court must not permit a record to be filed under seal based solely upon the agreement or stipulation of the parties.

(B) A party requesting that a record be filed under seal must file a motion for a reviewing court order to file the record under seal.

The Fifth District had no business keeping records under seal when no judge at any level had made the findings mandated by the court rule. The rationalization of Ardaiz, interlocutor of the “Fresno Follies,” was sheer nonsense.

Ardaiz advises that his panel would, in any event, find that every single word in the record has to be kept secret. This contravenes the Supreme Court’s ruling in NBC Subsidiary and the requirement of Rule 243.1(d) of narrow tailoring of secrecy orders so that only that portion of the record be sealed as must be sealed to serve the “overriding interest.” Ardaiz’s assertion that every single sentence must be excised to protect overriding interests—including the entirety of documents that were publicly filed in the Superior Court—is founded on absurdity.

Ardaiz says that Nugent should not have to suffer “premature” public disclosure of “allegations of substandard practice” on his part as a prerequisite to challenging the legal sufficiency of the hospital’s peer review procedures. How can public disclosure of this fact be “premature” when Nugent, himself, disclosed it in the complaint he filed in the Fresno Superior Court? How can it be “premature” when Nugent publicly revealed it in two writ petitions filed in the Court of Appeal and a petition for review filed in the Supreme Court? How can it be premature when it was bared in oral arguments before the Court of Appeal?

Nugent’s identity and the record in the case are the public’s business. Ardaiz and Wiseman ill serve the public when they thwart its right to know and propagate such claptrap as that contained in Monday’s order.