Order — United States v. Bernard Rogers (Middle District of Florida, Document 51, filed October 4, 2023)

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An Order of the United States District Court for the Middle District of Florida, Orlando Division, in United States v. Bernard Rogers, dated October 4, 2023. It rules on Defendant's Sealed, Unopposed Motion for Leave to File Under Seal, which sought to seal a psychological evaluation attached to the motion. The Court states that Defendant is mistaken that the HIPAA Privacy Rule protects the report, because the Court and Federal Defender organizations are not HIPAA covered entities. After in camera review, it finds that Defendant's interest in the report outweighs the public's qualified right of access. It grants the motion in part, sealing the report at docket number 49-1 until further order and directing the Clerk to unseal the motion.

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Case 6:23-cr-00007-RBD-RMN Document 51 Filed 10/04/23 Page 1 of 5 PageID 282




                  UNITED STATES DISTRICT COURT
                   MIDDLE DISTRICT OF FLORIDA
                       ORLANDO DIVISION


 UNITED STATES OF AMERICA

      v.                                      Case No. 6:23-cr-7-RBD-RMN

 BERNARD ROGERS


                                  ORDER

      This cause comes before the Court for consideration without oral

argument on Defendant’s Sealed, Unopposed Motion for Leave to File Under

Seal (Dkt. 49), filed October 3, 2023. Defendant seeks to seal a psychological

evaluation filed as an attachment to his motion.

      Defendant contends that the report should be sealed because the privacy

rule of Health Insurance Portability and Accountability Act of 1996 (“HIPAA”),

P.L. 104-191, and the regulations implementing that law, 45 C.F.R. Parts 160,

164, protect the report from disclosure. Defendant is mistaken.

      The Privacy Rule, promulgated under HIPAA, Title II, establishes

federal protections to ensure the privacy and security of protected health

information and establishes certain rights regarding an individual’s health

information. 1 The HIPAA Privacy Rule applies to covered entities, which



1 The United Stated Department of Health and Human Services, the federal

agency charged with implementing HIPAA, has promulgated a series of
Case 6:23-cr-00007-RBD-RMN Document 51 Filed 10/04/23 Page 2 of 5 PageID 283




include health plans, health care clearinghouses, and health care providers

that conduct certain standard transactions (such as billing insurance)

electronically. 45 C.F.R. §§ 160.102(a), 160.103 (defining “covered entity”).

HIPAA covered entities may only use and disclose PHI with the individual’s

written permission, or as otherwise permitted or required by the HIPAA

Privacy Rule. Id. § 162.100 (“Covered entities (as defined in § 160.103 of this

subchapter) must comply with the applicable requirements of this part.”). The

Court and Federal Defender organizations are not HIPAA covered entities, and

so the HIPAA Privacy Rule is not a basis to seal Defendant’s motion or the

attached psychological report.

      The Supreme Court and Eleventh Circuit have said that requests to seal

judicial records implicate the public’s qualified First Amendment right of

access to criminal proceedings. 2 United States v. Ochoa- Vasquez, 428 F.3d

1015, 1028 (11th Cir. 2005) (citing Globe Newspaper Co. v. Superior Ct., for the

Cnty. of Norfolk, 457 U.S. 596, 603 (1982), and Chicago Trib. Co. v.




regulations found variously at 45 C.F.R. Part 160 and Subparts A and E of Part
164 that the agency refers to collectively as the HIPAA Privacy Rule. See Dep’t
of   Health     &    Human        Servs.,     The    HIPAA    Privacy     Rule,
https://www.hhs.gov/hipaa/for-professionals/privacy/index.html.

2 There  is also a less-burdensome qualified common law right of access to
judicial records, which “may be curtailed if . . . non-disclosure is warranted.”
United States v. DeJournett, 817 F.3d 479, 485 (citing Nixon v. Warner
Commc’ns, Inc., 435 U.S. 589, 599 (1978)).

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Case 6:23-cr-00007-RBD-RMN Document 51 Filed 10/04/23 Page 3 of 5 PageID 284




Bridgestone/Firestone, Inc., 263 F.3d 1304, 1310 (11th Cir. 2001)). Criminal

proceedings are presumed to be open. Id. at 1029. A party may overcome that

presumption if it can show “an overriding interest based on findings that

closure is essential to preserve higher values and is narrowly tailored to serve

that interest.” Id. at 1030 (quoting Press-Enter. Co. v. Superior Ct. of

California, Riverside Cnty., 464 U.S. 501, 510 (1984)). A court may seal

documents in a criminal case if it articulates the “overriding interest” together

with “findings specific enough that a reviewing court can determine whether

the closure order was properly entered.” Id.

      There is no question that Defendant’s motion and the report are part of

the record of a judicial proceeding. See United States v. Sattar, 471 F. Supp. 2d

380, 385 (S.D.N.Y. 2006) (letter from defendant’s counsel sending psychiatric

report about the defendant and report itself were “judicial documents,” to

which common-law presumption of public access attached, even if court did not

find such documents to be useful and did not rely on them, where they were

submitted to court to provide information for sentencing); United States v.

Tangorra, 542 F. Supp. 2d 233, 237 (E.D.N.Y. 2008) (documents submitted by

defendants as part of the sentencing process that pertained to the defendants’

business affairs were “judicial documents” subject to the common law right of

access, even though the court did not rely on the documents in reaching its




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Case 6:23-cr-00007-RBD-RMN Document 51 Filed 10/04/23 Page 4 of 5 PageID 285




sentencing decision). Thus, there is a presumptive right of public access to

those materials.

        Defendant asks to seal the psychological report because it contains

personal and private information. Dkt. 49 at 1–2. Courts may consider the

privacy interests of criminal defendants when weighing a request to seal

particular documents. See United States v. Kaczynski, 154 F.3d 930, 931 (9th

Cir. 1998) (holding, over the defendant’s objections, that certain media

companies could access redacted versions of a psychiatric competency report

that was sealed based on the defendant’s privacy interests); Times Mirror Co.

v. United States, 873 F.2d 1210, 1216 (9th Cir. 1989) (considering the privacy

interest of individuals identified in search warrants and noting that “[o]ther

courts have also taken account of the privacy rights of individuals when

considering access requests to judicial documents.”).

        Based on the representations in the motion and an in camera review of

the report, I find that Defendant’s interest in the confidential and sensitive

information in the report outweighs the public’s qualified right to access. The

motion, however, implicates no such interests, and so it must be unsealed.3




3 The motion was filed under seal. Defendant’s motion does not include a
request to seal the motion. But given the motion was filed under seal, I will
deem the motion to include such a request.

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      Accordingly, it is ORDERED:

      1.     The Motion (Dkt. 49) is GRANTED IN PART and DENIED IN

PART;

      2.     The psychological evaluation report filed at docket number 49-1 is

sealed until further order of the Court; and

      3.     The Clerk of Court is directed to unseal the motion filed at docket

number 49.

      DONE and ORDERED in Orlando, Florida, on October 4, 2023.




Copies furnished to:

Pretrial Services Office
United States Marshals Service
Assistant U.S. Attorney
Counsel for Defendant
Defendant




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