Opinion
500095/2006.
Decided August 29, 2006.
In this Article 81 proceeding pertaining to Brooke Astor, the 104-year old New York philanthropist and socialite who has been at the center of New York society for decades, the court is called upon to determine whether an interim order sealing the court file should be vacated at the request of several news organizations and over the opposition of every party to this proceeding. The question of whether a trial judge has exercised his discretion properly in sealing records under Mental Hygiene Law § 81.14(b) arises infrequently, but requires a careful balancing of the public's First Amendment rights against the privacy rights of the alleged incapacitated person (AIP). After a full and fair opportunity to all concerned to address the issue, the court vacates the interim sealing order, except for confidential personal information concerning the AIP as outlined herein.
BACKGROUND
On July 20, 2006, Philip Marshall filed, by order to show cause, a petition seeking to remove his father (and Mrs. Astor's son), Anthony Marshall, as primary care giver of Mrs. Astor, and to void the power of attorney over her finances and health care proxy he obtained in 2004. Petitioner seeks to name a long-time friend of Mrs. Astor, Annette de la Renta, as guardian of her person, and JP Morgan Chase Bank, as guardian of her property. The petition contains serious and disturbing allegations of a pattern of neglect and mistreatment of Mrs. Astor over the last several years. The petition alleges that Anthony Marshall has not provided for his elderly mother and, instead, has allowed her to live in less than adequate living conditions and has cut back on necessary medication and doctor's visits, while enriching himself with income from her estate.
The petition was supported, in part, by the AIP's confidential medical records. Concerned that the privacy rights of Mrs. Astor may be violated before the parties had been served with process, hired counsel and given an opportunity to address the issue, the order to show cause directs that "access to [the file] be limited to counsel for the parties to the proceeding and the court evaluator." Despite this order, the Daily News appears to have obtained a copy of the unsigned order to show cause that was filed with the County Clerk's office, and the allegations in the petition were extensively reported in the local, national and even international press. This court then issued a second, "interim" order on July 25, 2006, directing the County Clerk to seal the file. This interim order was always intended to be temporary, and in place only until all interested persons had been given a full and fair opportunity to address the issue.
Whenever a special proceeding is commenced by order to show cause, one copy of the proposed order to show cause, petition and supporting papers is required to be filed with the County Clerk in order to purchase an index number, while the original papers are presented to the Ex Parte Office for judicial assignment and processing.
The publishers of three daily newspapers ( New York Post, Daily News and The New York Times), along with the Associated Press (the News Organizations), move for leave to intervene in this Article 81 proceeding, pursuant to CPLR 1012, and to the July 25th Interim Order temporarily sealing the file in this proceeding. The News Organizations argue that court files are presumptively open in New York State and that embarrassment of the parties alone is not a sufficient justification to seal court records. They contend that the public has a bona fide interest in this proceeding because Mrs. Astor is a well-known and respected public figure and that it is the extensive attention that she has received for the past several decades as a leader of New York society that makes her allegedly distressed living conditions today that much more of a public interest, as a most extreme example of potential elder neglect and mistreatment that is possible among all members of society.
In opposition to this motion, petitioner Philip Marshall has filed a cross motion seeking an order permanently sealing the court file and excluding the public from all court hearings in this proceeding. Petitioner and the court evaluator, Samuel Liebowitz, who supports the cross motion, argue that good cause exists to seal the record and close the courtroom for two reasons. First, they contend that because guardianship proceedings necessarily involve the most personal and sensitive issue about an AIP's well-being, excluding the public is necessary to protect the privacy and dignity of the AIP. Second, they argue that keeping the media out of this proceeding is necessary to preserve the free and unfettered flow of accurate information to the court about the AIP from potential witnesses.
Mr. and Mrs. Anthony Marshall oppose unsealing the file, and support the cross motion to permanently seal the file and close all court hearings. Susan Robbins, court-appointed counsel to Mrs. Astor, requests that any and all documents and testimony concerning medical, nursing and healthcare issues be sealed and that the courtroom be closed during any testimony concerning the same to protect Mrs. Astor's privacy regarding such matters. Annette de la Renta, the temporary guardian of the person of the AIP, supports sealing the file and closing the courtroom. She avers that Mrs. Astor would be dismayed by the recent media coverage of these proceedings and that Mrs. Astor always kept her personal finances private. JP Morgan Chase Bank, who has been appointed the temporary guardian of the property of the AIP, takes no position on this application.
DISCUSSION
The News Organizations request leave to intervene in this proceeding "as of right" pursuant to CPLR 1012. While there is no doubt that the public and the press have the right to be heard before the court rules on questions of closure or sealing of records ( Matter of Herald Co. v. Weisenberg, 59 NY2d 378, 383; Matter of Gannett Co. v. De Pasquale, 43 NY2d 370, 381, affd 443 US 368), in this court's view, intervention is not the proper mechanism whereby such opportunity is given. Accord Visetin v. Superintendent of the Haldane Cent. School Dist., 4 Misc 3d 1018 (A), 798 NYS2d 349 (Sup Ct, Putnam County 2004); Coopersmith v. Gold, 156 Misc 2d 594, 600 [Sup Ct, Rockland County 1992]). Intervention as of right pursuant to CPLR 1012 is not appropriate since the News Organizations will not be bound by any judgment in this action. Similarly, permissive intervention pursuant to CPLR 1013 is not warranted since the News Organizations do not have "a real and substantial interest in the outcome of the proceeding" ( Osman v. Sternberg, 168 AD2d 490 [2nd Dept 1980]), and merely seek access to the files and to cover any hearings in the matter. Thus, the proper procedural mechanism is to acknowledge, as the court has done, their standing to seek vacatur of the temporary sealing order. See Matter of Crain Communications, Inc. v. Hughes, 74 NY2d 626, 628 (1989); Coopersmith, supra.
Although the denial of a motion to intervene in a civil proceeding was reversed by the First Department in Danco Laboratories v. Chemical Works ( 256 AD2d 62 [1st Dept 1998]), the motion was granted only to the extent of remanding the matter to the trial court to determine whether "good cause" existed to seal the court file.
The First Amendment, as applied to the states by the Fourteenth Amendment, grants to the public and the press a qualified a right of access to civil court proceedings. Danco Labs v. Chemical Works of Gedeon Richter, 274 AD2d 1, 6-7 (1st Dept 2000); Matter of Ruben R., 219 AD2d 117, 121-23 (1st Dept), lv denied 88 NY2d 806 (1996). "While the operation of the judicial process in civil cases is often of interest only to the parties in the litigation, this is not always the case. Thus, in some civil cases the public interest in access, and the salutary effect of publicity may be as strong as, or stronger than, in most criminal cases." Gannet Co. v. De Pasquale, 443 US 368, 386-87 n 15 (1979) (citations omitted).
"The statutory and common law of this State have long recognized that civil actions and proceedings should be open to the public in order to ensure that they are conducted efficiently, honestly, and fairly." Matter of Conservatorship of Brownstone, 191 AD2d 167, 168 (1st Dept 1993); see also Gryphon Domestic VI, LLC v. APP Intern. Finance Co., B.V., 28 AD3d 322, 324 (1st Dept 2006). "Confidentiality is clearly the exception, not the rule. . . ." In Re Will of Hofmann, 284 AD2d 92, 93-94 (1st Dept 2001). The strong presumption in favor of openness places the burden on the party seeking to seal records and close hearings to show that the public's right of access is outweighed by competing interests. Danco Labs v. Chemical Works of Gedeon Richter, 274 AD2d at 8; Coopersmith v. Gold, 156 Misc 2d at 606.
Section 81.14(b) of the Mental Hygiene Law provides that a court may only seal a court file in an Article 81 proceeding upon a "written finding of good cause, which shall specify the grounds thereof." Likewise, section 81.13(c) provides that "[t]he court shall not exclude a person or persons or the general public from a proceeding under this article except upon written findings of good cause shown." The Mental Hygiene Law provides further, that "[i]n determining whether good cause has been shown, the court shall consider the interest of the public, the orderly and sound administration of justice, the nature of the proceedings, and the privacy of the person alleged to be incapacitated." MHL § 81.14(b) and (c).
Judiciary Law § 4 provides that "[t]he sittings of every court within this state shall be public, and every citizen may freely attend the same," except for certain enumerated criminal and civil matters wherein the trial court has discretion to exclude persons not directly interested.
There is no appellate authority interpreting MHL § 81.14. Petitioner argues that the most analogous statute is that which governs child protective proceedings under Article 10 of the Family Court Act, namely Family Court Act § 1043, and sections 205.4 and 205.5 of the Uniform Rules for the Family Courts. However, these statutes utilize different language and different procedures. The factors that a judge must consider in order to exclude the press from a child protective hearing include whether one of the parties objects and the need to protect from harm the children who are the subject of the proceeding. 22 NYCRR 205.(b)(3). According to the Law Review Commission Comments to MHL § 81.14, the standards for closing a guardianship hearing or sealing the records is the same as that in section 216.1 of the New York Code of Rules and Regulations, 22 NYCRR 216.1, pertaining to court records in general. Thus, while guardianship files are routinely sealed at the parties' request, the Legislature chose not to create a presumption that guardianship matters are protected from public scrutiny.
The first factor to be considered is the interest of the public in this proceeding. There is an important societal interest in conducting this proceeding in an open forum. Anonymous v. Anonymous, 263 AD2d 341, 345 (1st Dept 2000). "Open hearings are more conducive to the ascertainment of truth. The presence of the public historically has been thought to enhance the integrity and quality of what takes place.'" Anonymous, supra, quoting Richmond Newspapers v. Virginia, 448 US 555, 578 (1980). Open trials promote confidence in the judicial system by avoiding the suspicions which always attend secrecy. United States v. Consolidated Laundries Corp., 266 F2d 941, 942 (2d Cir 1959); Matter of Ruben R., 219 AD2d at 122. Judges "should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which public duty is performed." Cowley v. Pulsifer, 137 Mass 392, 394 (1884). The public needs to know that all who seek the court's protection will be treated evenhandedly, that justice is dispensed in the same manner to the rich as to the poor. Indeed, there may be no stronger First Amendment interest in freedom of the press than that of an open court system, for the press and public to see that persons are treated properly and fairly by the courts. As Abraham Lincoln once counseled:
"There is danger in abridging the liberties of the people. Nothing but the sternest necessity can ever justify it." You must go to "the very extreme of toleration rather than do anything to jeopardize in any degree the common rights of our citizens."
Goodwin, Team of Rivals, at 523 (2005).
There is no dispute that Brooke Russell Astor is a well-known public figure who has captivated the public's imagination for five decades. She is a figure of international interest and renown. Mrs. Astor has described herself as a "public monument," and has been described by others as the "grand dame of American philanthropy" and "the patron saint of New York society." Mrs. Astor is the widow of Vincent Astor, heir to the fortune of John Jacob Astor, a fur trader and fiancier, who at the time of his death in 1848 was the richest man in America. Mrs. Astor inherited over $120 million dollars upon her husband's death in 1959, and she then spent the next four decades giving over $200 million to deserving charitable organizations in New York City through the Vincent Astor Foundation. Mrs. Astor gave money only to New York-based charities, having reportedly stated that the money was made in New York City, so it must be spend here. For her decades of public service, she has been honored by everyone from the Boy Scouts to President Bill Clinton, who presented her with the Medal of Freedom in 1998.
Mrs. Astor has actively sought the public's attention. She has published two volumes of memoirs, "Patchwork Child" and "Footprints," in addition to works of fiction and poetry. In her memoirs, Mrs. Astor details her early life growing up, her three marriages and her charitable work with the Vincent Astor Foundation. Of particular note to the court, is the fact that Mrs. Astor has been very open and forthcoming about her first marriage to John Dryden Kuser, which was punctuated by her husband's alleged physical abuse, alcoholism and adultery.
Petitioner argues that although a public figure, Mrs. Astor retains a private life, particularly in her waning years, which a guardianship court should honor and respect. He further argues that the News Organizations are only seeking to gain access to what they hope will be personal details about the Astor/Marshall family that they can publish. He relies on Gannet Co., Inc. v. De Pasquale ( 43 NY2d 370, supra), in which the New York Court of Appeals held in a highly-publicized murder case that where the public's interest "was chiefly one of active curiosity with respect to a notorious local happening," it was appropriate for the court to close a pretrial suppression hearing to the media because "[w]idespread public awareness kindled by media saturation does not legitimize mere curiosity."
The News Organizations have shown a legitimate public concern, as opposed to mere curiosity, to counter-balance the interests of the parties in keeping this matter private. There is great public interest in this case because it focuses the spotlight on the problem of the neglect and mistreatment of the elderly in our society. The contrast between Mrs. Astor's extensive wealth and public importance and her living conditions at the time of the commencement of this proceeding show that elder abuse can be present in all socioeconomic communities in the United States. Moreover, it is a matter of increasingly public concern as the demographics promise a greater percentage of older Americans in the next thirty years. New York Congressman Peter King has stated: "This is one case I hope to use to focus attention on a national issue that we don't like to think about or talk about in polite conversation."
In addition, the proceeding may well involve allegations of undue influence or overreaching on the part of legal or other professionals acting in a fiduciary relationship to Mrs. Astor. In Re Will of Hoffman, 284 AD2d at 94 (holding that judicial proceedings involving the propriety of acts of court-appointed fiduciaries and their attorneys are matters of legitimate public concern).
That the public, particularly the citizens of this city, have a keen interest in the welfare of this very public figure can be attested by the extensive media coverage the matter has engendered. This is not surprising since Mrs. Astor has spent her long life giving to the people of New York City. "The press, acting responsibly, and not the courts, must make the ad hoc decisions as to what are matters of genuine public concern, and while subject to review, editorial judgments as to news content will not be second-guessed so long as they are sustainable." Gaeta v. New York News, Inc., 62 NY2d 340, 349 (1984).
The second factor that must be considered is the orderly and sound administration of justice. The court's role in this proceeding is to act in the best interests of the AIP, and, thus has appointed a court evaluator pursuant to MHL § 81.09. "The court evaluator plays a critical role by gathering detailed information regarding the circumstances of the case to assist the court in reaching its decision." Bailly, Practice Commentaries, McKinney's Cons. Laws of NY, Book 34A, Mental Hygiene Law § 81.09 at 112; see also Matter of Lichtenstein, 223 AD2d 309, 314 (1st Dept 1996) (recognizing the "crucial" role of a court evaluator, which is to act as an independent investigator and assist the court in independently assessing the totality of circumstances affecting the AIP). The court evaluator's duties consist of interviewing and consulting with the AIP, investigating the AIP's medical and psychological condition, financial situation, and personal and family history, and making a written report of his findings and recommendations to the court. See MHL § 81.09(c). Not only is the court evaluator's role critical, it is unique to all other court proceedings, and the court must therefore evaluate how opening this matter to the press will affect his ability to gather information and report to the court about the AIP.
The court evaluator advises that opening the file is hindering his ability to perform his statutory duties. Mr. Liebowitz avers that people he has sought to interview have been reluctant to speak, because of the fear that their conversation would become public. He states that the concern expressed by these potential witnesses is either protecting the privacy of Mrs. Astor or protecting their own privacy and fear of being hounded and besieged by the media. It is of the utmost importance that the court evaluator be able to gather accurate information to aid the court in reaching a just and fair determination, and the media attention this matter has engendered cannot be allowed to hinder his work. Thus, the court finds that, at the very least, the court evaluator's reports must remain sealed. See Matter of Eggleston, 1 Misc 3d 910 (a), 781 NYS2d 623 (Sup Ct, Kings County 2004) (good cause to close the courtroom and seal the file in a guardianship proceeding found where AIPs and potential witnesses were afraid to speak to court evaluator for fear of retribution from the AIP's abusive son).
As to the third and fourth factors, the nature of the proceedings and the privacy rights of the AIP, both petitioner and the court evaluator argue that closure is warranted because guardianship proceedings center around a judicial examination of the most personal and intimate aspects of the lives of those who have been involuntarily subjected to those proceedings as a result of their helplessness and vulnerability. The News Organizations argue that embarrassment to the parties alone is not enough to close a guardianship proceeding.
Mrs. Astor has always been a very open and candid person, who invited the world into her living room, and is not new to publicity, even when it concerns abuse at the hands of family members. She clearly has nothing to hide in this proceeding. There is no evidence or even suggestion that the extensive media coverage of this dispute is causing Mrs. Astor any significant emotional or physical distress. The court has been informed that she is resting comfortably, and has not been disturbed by the media coverage of the dispute because she neither reads the papers, nor watches television. Thus, this matter must be distinguished from Matter of P.B. v. C.C. ( 223 AD2d 294 [1st Dept 1996], lv denied 89 NY2d 808), where a child custody proceeding was closed for the protection and preservation of the children's health and welfare. See also Matter of Katherine B., 189 AD2d 443 (2nd Dept 1993) (child protective proceeding closed based on an affidavit from the 10-year old of victim of sexual abuse and her doctor attesting to the fact that opening the courtroom to the public and press would re-victimize the child and have a negative impact on her emotional well-being).
Even if Mrs. Astor were aware of the proceeding, the fact that she or other parties might experience dismay about being involved in this court proceeding and the attendant publicity, the potential embarrassment, stigma or humiliation suffered by the parties is not sufficient to justify sealing the file. Liapakis v. Sullivan, 290 AD2d 392, 393 (1st Dept 2002); Will of Benkert, 288 AD2d 147 (1st Dept 2001); In Re Will of Hofmann, 284 AD2d at 94.
However, the court is mindful that the issues in this proceeding will necessarily involve the AIP's medical and psychological condition, her physicians' assessment of her condition, her interaction with her closest relatives, friends and advisors, as well as her finances.
The AIP's medical and psychological records are clearly confidential (CPLR 4504[a], 4507), and should remain so. Accord Matter of Robin Garson, Index No. 400941/01 (Sup Ct, NY County May 7, 2003); Matter of Doe, 181 Misc 2d 787, 794 (Sup Ct, Nassau County 1999) (guardianship file sealed to protect disclosure of confidential medical and treatment of alcohol and substance abuse information). AIPs are almost always unwilling and involuntary participants in a court proceeding which centers upon their welfare. Mrs. Astor cannot be compared to other voluntary civil litigants, for example, plaintiffs in personal injury cases who place their medical condition in issue in the case and must, therefore, waive all evidentiary privileges that attach to medical and mental health records. As Gov. Mario Cuomo noted in 1984, in approving legislation strengthening the confidentiality of psychiatric information, "[a]t the very heart of the client-professional relationship in mental health care is its confidentiality." Mem. of Governor Cuomo, 1984 McKinney's Session Laws of NY, at 3654.
Information about the AIP's personal finances, however, does not have the same privacy protections. While trade secrets are routinely afforded confidential treatment, in Norkin v. Hoey ( 181 AD2d 248 [1st Dept 1992]), the First Department ruled that bank customers have no privacy or proprietary interest in records kept by banks in which they do business. Petitioner relies on Dawson v. White Case ( 184 AD2d 246 [1st Dept 1992]), however in that case, the defendant law firm moved to seal an accounting that had been performed to value a partner's interest in the firm, and which revealed financial information about other partners of the firm and, more importantly, its clients. Accordingly, the court does not find any of the information concerning the AIP's finances that is likely to be revealed at the trial of this action must be protected by a sealing order. This does not mean that identifying information such as account numbers need be disclosed, and such information should always be redacted to protect the AIP from mischief such as identity theft.
One final point. The News Organizations argue that the interim sealing order should be vacated, because the media has already disclosed the allegations in the petition, People v. Harris ( 57 NY2d 335, cert denied 460 US 1047), upon which they rely, is readily distinguishable. In that case, the trial court refused the defense's request to close a pre-trial suppression hearing in the well-publicized murder trial of Jean Harris, finding that the statements which were the subject matter of the hearing had been known to the public for months and that defense counsel himself had been listed as the source of some of the commentary on the case, and thus it had not been shown that closure of the suppression hearing was necessary to ensure a fair trial. 57 NY2d at 346. Here, in contrast, the petitioner intended for the court file to be sealed from the outset, and the parties cannot be precluded from seeking to seal the file and close the courtroom pursuant to MHL § 81.14 solely because the press got hold of a copy of the unsigned order to show cause and supporting papers shortly after the commencement of the case. Nor do the allegations in the petition sum up the entirety of this dispute, and the precise details of what may have occurred in the last several years of Mrs. Astor's life have yet to be explored.
CONCLUSION AND ORDER
Thus, after balancing the rights of the public against the privacy interests of Mrs. Astor and the need for the court evaluator to function effectively, the court finds that the parties have demonstrated good cause to seal portions of the court's file in this matter. The file shall be sealed only with respect to medical, mental health and nursing records pertaining to the AIP, and all of the court examiner's reports. In addition, all documents containing the AIP's social security number, bank and brokerage account numbers, and other similar personal identifying financial information shall be redacted before submission to the court. An in-camera review will be held at the request of any party, including the News Organizations, to appeal any item filed under seal or redacted by the parties. Finally, any court hearings whereby testimony concerning any documents filed under seal is to be presented shall be closed to the public and the press.
It is argued that partial sealing and partial closure of the hearings may prove unworkable and impracticable, because confidential and sensitive information is likely to be interspersed throughout the entire record. However, the First Department has cautioned both in Danco Labs Ltd., 274 AD2d at 8-9, and Anonymous v. Anonymous ( 263 AD2d 341, 344 [1st Dept 2000]), that less restrictive alternatives to full closure should be employed whenever possible.
It should be noted that MHL § 81.14 specifically provides that documents obtained through disclosure and not filed with the County Clerk remain subject to protective orders under the CPLR, and are not the subject of the present application. In addition, motions that are sub judice before the court will not be filed with the County Clerk until the court has ruled on the matter.
Accordingly, it is hereby
ORDERED that the motion to vacate the July 25th Interim Order is granted in part, and denied in part; and it is further
ORDERED that the cross motion is denied in part, and granted in part; and it is further
ORDERED that all medical, mental health and nursing records pertaining to the AIP, and all of the court examiner's reports, shall be filed under seal, with access only to the parties, their counsel and the court evaluator; and it is further
ORDERED that all documents containing the AIP's social security number, bank and brokerage account numbers, and other similar personal identifying financial information, shall be redacted before submission to the court; and it is further
ORDERED that any party filing papers containing information subject to this sealing order shall prepare an additional set of the papers with the information subject to this sealing order removed (including all documents previously filed, such as the petition), and that both sets of papers shall be delivered to the courtroom at 80 Centre Street, Rm. 308; and it is further
ORDERED that any testimony concerning any documents filed under seal shall be closed to the public; and it is further
ORDERED that this order stayed is stayed until August 31, 2006 at 5:00 p.m. to allow any party or the News Organizations the opportunity to seek any appropriate relief in the Appellate Division.