NDNY Judge Denies Motion to Redact Confidential Medical Information From Sentencing Memoranda

Sentencing memoranda filed by defense counsel and the government can contain some of the most intimate details of a defendant’s life.  They may recount experiences of childhood sexual abuse, results of mental health and IQ testing, and diagnoses of life-threatening diseases.  As Judge Kahn points out, in United States v. Dare, 06-CR-429 (LEK), 568 F.Supp.2d 242 (N.D.N.Y. 2008), a defendant’s medical records “surely are among an individual’s most private matters.”  He nonetheless denied defense counsel’s motion to redact the medical information from the sentencing memoranda, in response to an unsealing motion brought by the Albany Times Union (ATU) on First Amendment grounds prior to the imposition of sentence.

Sentencing Memoranda

Recognizing that the “privacy interests of the defendant” may justify the nondisclosure of the sentencing memoranda so as not to deter defendants “from disclosing information that could be relevant to the Court’s sentencing decision,” the court held that in this case “this concern is only minimal” since Dare “has chosen to introduce the medical information in an attempt to mitigate his sentence.”  The court went on to say that “[h]ere, the public[‘s] right to these records, which inform the Court’s sentencing, [is] not outweighed by Defendant Dare’s considerable privacy interest in his medical records.”  (The court did not indicate if intended to mitigate the sentence in light of the medical information.) 

Presentence Reports

On the other hand, the ATU would not be permitted to view the presentence report prepared by the Probation Departments.  Such reports “are not public records but rather confidential reports to the trial judge” and the ATU failed to make the “compelling demonstration that disclosure of the report is required to meet the ends of justice.”