UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CIVIL BEAT LAW CENTER FOR No. 23-15108 THE PUBLIC INTEREST, INC., D.C. No. Plaintiff-Appellant, 1:22-cv-00386- v. DKW-KJM RODNEY A. MAILE, in an Official Capacity as Administrative Director of ORDER AND the Courts; ELIZABETH M. ZACK, AMENDED in an Official Capacity as Chief Clerk OPINION of the Hawai`i Supreme Court; LORI ANN OKITA, in an Official Capacity as Chief Court Administrator of the First Circuit; SANDY S. KOZAKI, in an Official Capacity as Chief Court Administrator of the Second Circuit; DAVID M. LAM, in an Official Capacity as Chief Court Administrator of the Fifth Circuit; DAWN WEST, in an Official Capacity as Chief Court Administrator of the Third Circuit,

Defendants-Appellees.

Appeal from the United States District Court for the District of Hawai‘i Derrick Kahala Watson, Chief District Judge, Presiding 2 CIVIL BEAT LAW CENTER V. MAILE

Argued and Submitted February 15, 2024 Honolulu, Hawai‘i

Filed September 26, 2024 Before: Richard A. Paez, Milan D. Smith, Jr., and Lucy H. Koh, Circuit Judges.

Order; Opinion by Judge Paez

SUMMARY*

First Amendment / Access to Court Records

Reversing the district court’s judgment for the Chief Court Administrators of the Hawai‘i state courts and remanding, the panel held that Hawai‘i Court Records Rules requiring that all medical and health records filed in any court proceeding be filed under seal without further order of a judge are unconstitutionally overbroad. The panel held that a state may not mandate the categorical sealing of all medical and health records filed in any state court proceeding in order to protect the individual privacy rights of the subjects of those records, without any case-by-case consideration of the privacy interest implicated

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. CIVIL BEAT LAW CENTER V. MAILE 3

by the records or whether less restrictive alternatives exist to sufficiently protect that interest. The panel concluded that the First Amendment grants the public a presumptive right to access a substantial portion of the records sealed under Hawai‘i’s challenged sealing provision, and defendants have not articulated a compelling governmental interest sufficient to rebut the presumption of openness as to those records. The panel was not persuaded that the mandatory, categorical sealing of all medical and health records was the least restrictive means of protecting Hawaiians’ privacy rights. Permitting Hawai‘i courts to consider motions to seal medical and health records on a case-by-case basis would ensure that closure serves an asserted privacy interest and was the least restrictive means of protecting that interest. Because a substantial proportion of the challenged provision’s applications encroach on the public’s right of access, the provision was unconstitutionally overbroad.

COUNSEL Robert B. Black (argued), Civil Beat Law Center for the Public Interest Inc., Honolulu, Hawaii, for Plaintiff- Appellant. Lauren K. Chun (argued), Deputy Solicitor General, State of Hawai’i; Kalikoʻonālani D. Fernandez, Solicitor General; Robyn B. Chun, Deputy Assistant Attorney General; Anne E. Lopez, Hawaii Attorney General; Office of the Hawaii Attorney General, Honolulu, Hawaii; for Defendants- Appellees. 4 CIVIL BEAT LAW CENTER V. MAILE

ORDER

The mandate issued by the court on September 19, 2024 is recalled. The slip opinion filed on August 28, 2024, and publishe