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Panel affirms order unsealing organ network emails in fight over transplant policy change

A three-judge panel found the emails at issue are "judicial records subject to a presumption of public access” and a federal judge’s decision to unseal them was not out of bounds.

ATLANTA (CN) — The 11th Circuit on Wednesday upheld a lower court's order to unseal private emails as part of a legal battle over a policy for allocating organs to transplant patients.

The emails sent to and from leaders of the United Network for Organ Sharing, or UNOS, were ordered to be unsealed by a Georgia federal judge last year as part of a lawsuit brought by hospitals and transplant centers to prevent the implementation of a policy directing livers toward the sickest patients within a certain radius of the donor.

Opponents of this new Acuity Circles model policy argue it could make it more difficult for medical centers outside urban areas to maintain their access to organs, as it replaces a protocol that allowed transplant candidates to receive organs from donors living in the same donation service region.

Such a policy change could ultimately create a shift in "which patients would live and which patients would die," U.S. Circuit Judge Britt Grant wrote in Wednesday's ruling.

The three-judge appellate panel unanimously found that the emails at issue are "judicial records subject to a presumption of public access and the lower court did not abuse its discretion in unsealing them."

“The interests served by judicial openness extend far beyond the bounds of any particular case. As we have long recognized, when ‘a matter is brought before a court for resolution, it is no longer solely the parties’ case.’ So too here. The district court did not err,” wrote Grant, a Donald Trump appointee.

In finding no abuse of direction by the lower court, the 11th Circuit judges rejected UNOS attorney Linda Coberly's argument that the effort to make the emails public is nothing more than an attempt to “make allegations of bias by trying to embarrass people who specifically disagree with [the plaintiffs] on matters of liver allocation policy.”

In last year's order granting the motion to unseal, U.S. District Judge Amy Totenberg noted that the documents included “a number of inadvisable ‘hot takes’ and inflammatory remarks by UNOS decisionmakers and affiliates, as well as clear preferences for policy outcomes which the court previously characterized as ‘arguable evidence of bias, or at least, individuals’ sporadic expressions of bad faith or agenda.’”

The three-judge panel of the Atlanta-based appeals court found the emails involve policymaking on a topic of genuine public concern, and do not contain proprietary information or trade secrets that require protection.

The emails are considered discovery materials in the case and qualify as judicial records since they were filed in connection with a substantive motion, according to the judges.

"The documents at issue were attached to the hospitals’ supplemental brief in support of a preliminary injunction—a pretrial motion separate from discovery. The materials thus qualify as judicial records, and they are subject to the common-law right of access," the ruling states.

The hospitals initially argued that the emails needed to be unsealed as "proof that the policy change was arbitrary, capricious, and the result of a denial of due process."

Grant was joined on the panel by U.S. Circuit Judges Elizabeth Branch, a fellow Trump appointee, and Julie Carnes, who was appointed by Barack Obama.

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