THOMAS COY, Plaintiff-Appellee, v. WASHINGTON COUNTY HOSPITAL DISTRICT, d/b/a Washington County Hospital, Defendant-Appellee (The Southern Illinoisan, Intervening Petitioner-Appellant; Nashville News, Intervening Petitioner), 372 Ill. App. 3d 1077

PRESIDING JUSTICE WELCH delivered the opinion of the court: Intervenor-appellant The Southern Illinoisan, a daily newspaper headquartered in Carbondale with readership across a broad swath of southern Illinois, appeals the February 21, 2006, order of the circuit court of Washington County denying The Southern Illinoisan’s request that the court unseal, with respect to the names of patients contained therein, the court’s order of February 18, 2005, in the above-captioned case. For the reasons that follow, we affirm the circuit court’s February 21, 2006, order.

On June 28, 2004, defendant-appellee Washington County Hospital District, a publicly owned hospital, suspended the medical privileges of plaintiff-appellee Dr. Thomas Coy, who was at the time a hospital employee. The hospital cited “several” recent cases of substandard medical care and stated that a suspension was necessary to reduce the likelihood of immediate injury to patients. On January 21, 2005, Dr. Coy sued the hospital. Dr.

Coy alleged procedural deficiencies in his suspension, sought the enforcement of a related settlement agreement, and requested various other forms of relief not directly relevant to this appeal. Journalists for the Nashville News, a weekly newspaper in Washington County, and The Southern Illinoisan reported on matters concerning the hospital and Dr. Coy. On February 18, 2005, presumably pursuant to settlement negotiations, counsel for Dr. Coy forwarded to the hospital an agreed order, which counsel requested that the hospital submit to the court.

On the same date, the hospital delivered to the court a letter requesting that the court file the accompanying agreed order under seal. For reasons that neither Dr. Coy nor the hospital has been able to explain adequately, the agreed order contained, inter alia, the names of the seven nonparty patients to whom Dr. Coy had allegedly provided substandard care. The order did not contain any other information about the patients and did not reference the patients’ medical records, conditions, or diagnoses.

The court complied with the hospital’s request, entering, under seal, the February 18, 2005, order that is the subject of the present appeal. Subsequently, reporters from the Nashville News and The Southern Illinoisan who had been covering the case visited the office of the Washington County circuit clerk and inspected the court file in the case, finding, inter alia, the sealed order. In an effort to seek access to the sealed order, the Nashville News and The Southern Illinoisan filed a petition to intervene in the lawsuit. A hearing on the petition was held on June 21, 2005.

The petition to intervene was granted on July 22, 2005, and on August 11, 2005, the intervenors filed a motion for access to the sealed order. The hospital filed a response to the motion for access, to which the intervenors in turn replied. On August 15, 2005, Dr. Coy moved to amend the sealed order to prohibit the disclosure of the nonparty patient names contained therein but to unseal the remainder of the settlement agreement. Eventually, on October 4, 2005, the circuit court granted Dr. Coy’s motion to amend the sealed order, thereby unsealing the order but for the names of the seven nonparty patients.

The intervenors moved the court to vacate or, alternatively, to reconsider its decision, and oral argument was held. On February 21, 2006, the court entered an order denying the request of the intervenors to unseal the order with regard to the names of the patients. In support of its decision to deny the request to unseal, the trial court relied upon Tomczak v. Ingalls Memorial Hospital, 359 Ill. App. 3d 448 (2005).

The trial court ruled that granting the request to unseal would violate the federal Health Insurance Portability and Accountability Act of 1996 (hereinafter HIPAA) (42 U.S.C. §1320d — 2 (2000)) and that the court was required to “comply with the HIPAA regulations when issuing orders.” Accordingly, the trial court ruled that the “the names of the patients are protected from discovery” and that the court was required to deny the request to unseal the names.

We note that, while the circuit court based its decision partially on its belief that HIPAA required that the order remained sealed with respect to the patients’ names, it also exercised its discretion in finding that “there is good reason to seal the names of the patients.” The Southern Illinoisan filed a timely notice of appeal and now contends the trial court erred in denying the request to unseal. We begin our analysis by observing that under the common law, judicial records and documents are presumptively open to the public. Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 230 (2000).

The common law right of access to court records has been deemed by the Illinois Supreme Court to be “essential to the proper functioning of a democracy” because “citizens rely on information about our judicial system in order to form an educated and knowledgeable opinion of its functioning.” Skolnick, 191 Ill. 2d at 230. Moreover, the availability of court files for public scrutiny is essential to the public’s right to monitor the functioning of the court system to ensure quality, honesty, and respect for our legal system. Skolnick, 191 Ill. 2d at 230.

The presumptive right of public access to judicial records attaches to court orders and opinions. A.P. v. M.E.E., 354 Ill. App. 3d 989, 997 (2004). Orders of a court are public documents and should not be kept under seal. A.P., 354 Ill. App. 3d at 997. Orders and opinions are not the property of litigants; rather, they belong to the public, which underwrites the judicial system that produces them. A.P., 354 Ill. App. 3d at 997. When a settlement agreement is filed with a court, the presumptive right of public access to judicial records attaches to that agreement. In re Marriage of Johnson, 232 Ill.

App. 3d 1068, 1074 (1992). The way to avoid the attachment of the presumption with regard to a settlement agreement is simple: the parties to a case “are free to make whatever contractual arrangements they wish as part of their settlement agreement and keep it to themselves by simply not making it part of the court record.” (Emphasis in original.) In re Marriage of Johnson, 232 Ill. App. 3d at 1076 (Steigmann, J., specially concurring). That said, the presumption of public access to court records and documents, although very strong, is not absolute.

To overcome the presumption of access, the moving party bears the burden of establishing both that there is a compelling interest for restricting access and that the resulting restriction furthering that interest is tailored as narrowly as possible. Skolnick v. Altheimer & Gray, 191 Ill. 2d 214, 231-32 (2000). “An order denying a motion to unseal a court file or document is reviewed for an abuse of discretion.” A.P. v. M.E.E., 354 Ill. App. 3d 989, 994 (2004). Against the above backdrop, we turn to the present case.

With regard to the ruling of the trial court in this case, we agree with The Southern Illinoisan that the trial court erred as a matter of law in concluding that the court would violate HIPAA by unsealing its order. We begin by noting that Tomczak v. Ingalls Memorial Hospital, 359 Ill. App. 3d 448 (2005), the case upon which the trial court relied, did not involve the disclosure of names. That issue was not before the Tomczak court, and only two or three sentences of the court’s nine-page opinion discuss the issue of the identity of the nonparty patients involved.

Accordingly, the applicability of Tomczak to the present case is questionable at best. More importantly, although the judge in the present case wrote that based upon Tomczak he was persuaded that circuit court orders “must comply with HIPAA regulations,” the Tomczak court never reached that question. To the contrary, the Tomczak court found HIPAA to be inapplicable because in that case the information sought — triage time, treatment time, and triage acuity designation for certain nonparty patients — was not “ ‘protected health information’ ” as defined by regulations promulgated pursuant to HIPAA.

Tomczak, 359 Ill. App. 3d at 456, quoting 45 C.F.R. §164.512(e)(l) (2002). The court did not address whether it was a “covered entity” for HIPAA purposes. Put simply, Tomczak is inapposite to the present case and does not stand for the proposition that circuit court orders must comply with HIPAA. Nor is a court a “covered entity” for HIPAA purposes. The applicability

section of HIPAA provides, in pertinent part, that any standard adopted thereunder applies only to health plans, health care clearinghouses, and health care providers which transmit “any health information in electronic form in connection with a transaction” referred to elsewhere in HIPAA. 42 U.S.C. §1320d — 1(a)(3) (2000). The application of HIPAA’s privacy rule is likewise limited to health plans, health care clearinghouses, and qualified health care providers, each of which is defined as a “covered entity.” 45 C.F.R. §§160.102(a), 160.103 (2002).

Accordingly, the plain language of HIPAA demonstrates that the judiciary, which is not a health plan, a health care clearinghouse, or a qualified health care provider, is not subject to HIPAA’s privacy rule. Courts and administrative agencies in a number of jurisdictions have agreed that only the small class of “covered entities” defined in HIPAA is subject to HIPAA’s privacy rule. See, e.g., United States v. Mathis, 377 F. Supp. 2d 640, 645 (M.D. Tenn. 2005); Beard v. City of Chicago, No. 03 C 3527 (N.D. Ill. Jan. 10, 2005) (unpublished memorandum opinion and order); 2004 Tex. Att’y Gen.

Ord. 681, available at http://www.oag.state.tx.us/opinions/ord/ord— 681.pdf; 2004 Ky. Att’y Gen. Ord. 143, available at http:// www. ag. ky. go v/NR/r donlyr es/E BAD7EC 8 — 8118—4FE8 — A4A5— 5BD85DAD6B6F/0/04ORD143 .doc.

Moreover, in comments published in the Federal Register, the Assistant Secretary for Planning and Evaluation of the Department of Health and Human Services stated that there are no known situations “in which a covered entity would also be a judicial or administrative tribunal” and that the privacy rule “does not regulate the behavior of law enforcement officials or the courts.” Standards for Privacy of Individually Identifiable Health Information, 65 Fed. Reg. 82462, 82524, 82680 (December 28, 2000).

In fact, there is a good reason a court is not a covered entity — because given its nature as a vehicle for the settlement of disputes, rather than as an entity that generates, stores, transmits, or analyzes medical data, a court could not be in possession of covered medical information to disclose unless that information had been provided, for whatever reason, by parties that already had access to that information. Because a court is not a covered entity for HIPAA purposes and HIPAA does not prevent the unsealing of the court order in this case, the trial court erred as a matter of law in ruling that it did.

Nevertheless, we may affirm the decision of the circuit court on any basis appearing in the record (Material Service Corp. v. Department of Revenue, 98 Ill. 2d 382, 387 (1983)), and we do so here. We believe that the parties who seek to keep the order sealed — the hospital and Dr. Coy — have overcome the strong presumption in favor of public access to court documents, records, and orders by establishing both that there is a compelling interest why access should be restricted and that the resulting restriction furthering that interest is tailored as narrowly as possible. See Skolnick, 191 Ill. 2d at 231-32.

In the case at bar, the circuit court found a compelling interest why public access to the names of the nonparty patients should be restricted, in the form of a broad public policy in favor of a medical patient’s right to privacy. In balancing this compelling interest against the public’s right of access, the circuit court came down on the side of protecting a patient’s privacy. The circuit court narrowly tailored its restriction on the right of public access by omitting from the agreed order only the names of the seven nonparty patients and allowing public access to the rest of the document.

We should alter the terms of a protective order only if no reasonable person could adopt the view taken by the circuit court. Skolnick, 191 Ill. 2d at 224. The view taken by the circuit court is reasonable and we will not disturb it. Illinois has a strong and broad public policy in favor of protecting the privacy rights of individuals with respect to their medical information. This public policy is articulated and reflected in numerous Illinois statutes. See Petrillo v. Syntex Laboratories, Inc., 148 Ill. App. 3d 581, 587 (1986) (public policy is found in a state’s constitution and statutes).

Illinois law recognizes an individual’s right to privacy and confidentiality in health care and medical records in the Medical Patient Rights Act (410 ILCS 50/3(d) (West 2004)) and the Hospital Licensing Act (210 ILCS 85/6.17(d) (West 2004)), an evidentiary privilege regarding communications between physician and patient (735 ILCS 5/8 — 802 (West 2004)), and an exemption to a Freedom of Information Act request where the request seeks patient records (5 ILCS 140/7 (West 2004)). While none of these statutes applies directly to the case at bar,

an act can be against public policy even though it is not specifically prohibited by a state’s statutes, for a finding of public policy can often be inferred from those statutes. Petrillo, 148 Ill. App. 3d at 587. Public policy should forbid conduct that tends to harm an established and beneficial interest of society, the existence of which is necessary for the good of the public, even though that conduct is not expressly prohibited by a state’s statute. Petrillo, 148 Ill. App. 3d at 587.

The importance of a patient’s right to privacy in his or her medical information has also been recognized in numerous judicial opinions. See Parkson v. Central DuPage Hospital, 105 Ill. App. 3d 850, 853-54 (1982) (a hospital is mandated to assert the physician-patient privilege to ensure that the patients’ records will be protected in accordance with the intention of the statute); Petrillo v. Syntex Laboratories, Inc., 148 Ill.

App. 3d 581, 588 (1986) (an ex parte conference between defense counsel and a plaintiff’s treating physician jeopardizes the sanctity of the physician-patient relationship and, therefore, is prohibited as being against public policy); Reagan v. Searcy, 323 Ill. App. 3d 393, 398 (2001) (the medical records of nonparties are protected by the physician-patient privilege). Individuals have a right to and an expectation of privacy related to their medical information, and this right and expectation of privacy is reflected in our public policy.

This right to privacy is a compelling interest that must be balanced against the public’s right of access to judicial records and documents. In re Marriage of Johnson, 232 Ill. App. 3d 1068, 1072 (1992). The circuit court properly balanced these two competing interests and, by narrowly tailoring its restriction on public access by omitting only the names of the nonparty patients, served both interests.

While it is true that the parties could have avoided the attachment of the presumption in favor of public access with regard to the settlement agreement by simply not making it a part of the court record or they could have omitted the names of the seven nonparty patients therefrom, the seven nonparty patients should not be penalized for the mistakes of the parties. The seven nonparty patients are not parties to this litigation and have not in any way consented to the disclosure of the fact that they sought medical treatment from Dr. Coy or that their information was used in a peer review of Dr.

Coy by the hospital. They had no say in the settlement agreement and no opportunity to protect their identities from disclosure. The parties to this litigation did attempt to protect the identities of the patients by asking that the settlement agreement be sealed. The circuit court obliged. That the parties could have done a better job of protecting the privacy interests of the nonparty patients does not abrogate those privacy interests. The circuit court acted to protect those privacy interests by narrowly restricting the public’s access to the names contained in the settlement agreement.

It did not abuse its discretion in so doing. We uphold the circuit court’s order restricting access to the names of the seven nonparty patients. We do so not to protect the interests of the hospital or Dr. Coy, but to protect the interests of those unrepresented patients, who may even be unaware of the controversy surrounding them. While it may be argued that there is no expectation of privacy with respect only to the name of a patient, we do not agree. Whether or not that information is technically privileged under the statute (735 ILCS 5/8 — 802 (West 2004); see House v. SwedishAmerican Hospital, 206 Ill.

App. 3d 437, 439 (1990)), a patient may still have an expectation that the fact that he or she visited with or was treated by a physician will remain private. For example, if the physician is an abortionist, an oncologist, an HIV/AIDS specialist, or a mental health professional, to name only a few, an individual may want to keep private the fact that he or she visited with or was treated by that physician. In such a case, revealing the name of a patient may also reveal sensitive medical information about that patient.

Finally, we do not see how the revealing of the names of the seven nonparty patients will advance the public good or further the rationale behind allowing public access to judicial records. The rest of the settlement agreement has been unsealed by the circuit court and is open to public access.

Protecting the identities of the nonparty patients will not impair the public’s ability to “ ‘monitor the functioning of our courts, thereby insuring quality, honesty!,] and respect for our legal system.’ ” Skolnick, 191 Ill. 2d at 230, quoting In re Continental Illinois Securities Litigation, 732 F.2d 1302, 1308 (7th Cir. 1984). Accordingly, the circuit court properly determined that the public’s right of access to the identities of the nonparty patients did not outweigh the compelling interest, as reflected in our public policy, of the privacy rights of those individuals regarding their medical treatment by Dr.

Coy. The circuit court tailored its restriction on public access as narrowly as possible. We therefore affirm the decision of the circuit court. Affirmed. WEXSTTEN, J., concurs. Justice Hopkins participated in oral argument. Justice Wexstten was later substituted on this panel and has read the briefs and listened to the audiotape of oral argument.