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Thursday, May 27, 2010

Ind. Decisions - More on suit between one Indiana state agency and another

This Feb. 24, 2010 ILB entry was headed "7th Circuit to hear oral arguments in Indiana 11th amendment case today." It was an en banc sitting of the Court.

The parties are Indiana Protection and Advocacy Services and the Indiana FSSA.

This April 22, 2010 ILB entry gives the outcome:

(1) the Eleventh Amendment does not bar plaintiff IPAS from seeking injunctive and declaratory relief against named state officials; (2) the PAIMI Act itself provides a cause of action for injunctive and declaratory relief to enforce the Act; and (3) plaintiff is entitled to access to peer review records of treatment of covered mentally ill patients. Accordingly, we affirm the judgment of the district court as modified to direct that the relief runs only against the named state officials in their official capacities.
Now, in a nonprecedential decision issued May 26, 2010, Circuit Judge Hamilton ordered:
On April 22, 2010, this court sitting en banc affirmed the judgment of the district court as modified. Indiana Protection and Advocacy Servs. v. Indiana Family and Social Services Admin., — F.3d —, 2010 WL 1610117 (7th Cir. Apr. 22, 2010) (“IPAS II”). The effect of this court’s mandate will be to affirm the district court’s order requiring the named state officials to make available to the plaintiff certain records regarding a mentally ill patient (identified in the court records and the court’s opinion as Patient 1) for inspection and copying.

The defendants intend to seek Supreme Court review and have moved to stay the mandate pending the conclusion of that Court’s review. The plaintiff opposes the motion. All participating judges agree that the motion should be denied.1 The district court has stayed its order pending resolution of this appeal. As I explain below as author of the merits opinion, this court sees no reason to delay the mandate or to prevent the district court from lifting its stay of its order pending possible Supreme Court review. * * *

The defendants argue there is good cause for a stay of the mandate because they will suffer irreparable harm in the form of an “invasion of privacy” if they are required to allow the plaintiff to inspect and copy the disputed peer review records regarding Patient 1. However, the defendants fail to specify their basis for any privacy right or interest in the records under dispute. Does it lie with Patient 1? With the state care‐giving institutions? With the doctors and other medical professionals who rendered treatment? In any case, to alleviate that concern, the plaintiff points out that if and when it is granted access to the records, it still will be required by law to maintain the confidentiality of those records. There is therefore little to no risk that the information the records contain would be publicly disclosed or that the information would be used for some purpose unrelated to the plaintiff’s mandate, severely undercutting the defendants’ argument. Also, this negligible risk is outweighed by the plaintiff’s interest in carrying out its obligation to protect and advocate on behalf of other mentally ill patients. That interest has been necessarily kept in suspense for the last several years of this litigation, and further delay is unwarranted.

In sum, the balance weighs against granting a stay of the mandate even if there is a reasonable possibility that certiorari may be granted. The disclosure of information would be to an independent government agency with its own legal obligations to maintain the confidentiality of the documents in question. The plaintiff has had to wait nearly four years after Patient 1’s death for access to the peer review documents, stymying its ability to effectively protect and advocate on behalf of other individuals with mental illness. There will be no invasion of Patient 1’s privacy, for Patient 1 is deceased. Whatever interests the caregiving entities or the doctors and other individual care‐givers might have in the privacy of information about their treatment of Patient 1 will be adequately protected by the plaintiff’s own legal obligations of confidentiality. Under these circumstances, a court order allowing the plaintiff access to the records but reserving the right to order the plaintiff to return all copies and derivative notes in the event that this court’s decision is reversed would give substantial protection to the defendants. Finally, as the defendants point out, that ongoing prospect for ordering return of documents would also prevent the case from becoming moot pending possible Supreme Court review. See Church of Scientology of California v. United States, 506 U.S. 9, 13 (1992). Accordingly, the motion to stay the mandate is denied.

In this case, the federal government filed an amicus on the side of IPAS. The Solicitor General of Indiana argued for FSSA. Morrison & Foerster served as pro bono co-counsel with IPAS.

Here are earlier ILB entries.

Posted by Marcia Oddi on May 27, 2010 12:56 PM
Posted to Ind. (7th Cir.) Decisions