TRANSPARENCY IN THE TIME OF COVID-19 PUBLIC RECORDS EDITION

April 15, 2020

Continuing on the theme of government transparency and how you get the information you need to cover the developing COVID-19 crisis, I have outlined here some principles to remember.  Email first@smvt.com to request a sample letter you can use to make your requests.  Of course, every situation is different and dependent on your relationship with public agencies and officials, so tailor the letter to your circumstances.

  • Generally speaking, the Public Records Law gives you a right to demand access to records, not to demand answers to questions. Of course, it is fine (and, frankly, only natural) for you to start with a question.  But if you do not get the information you need, identify the document that contains the answer, and ask for that.
  • The definition of a public record is key: any document made or received by a public agency in connection with the transaction of public business.  S. § 132-1(a).  Don’t forget that public agencies receive documents every day that otherwise wouldn’t be public but become public once they are received.
  • The fact that a document has confidential information commingled with non-confidential doesn’t matter. The public agency must remove the confidential information and release the non-confidential, and the agency must pay that cost.  C. Gen. Stat. § 132-6(c).  This is particularly important now, because documents and databases may have both public and confidential information together.
  • If a public agency withholds documents, ask their legal basis for doing so. They must answer you with numbers, not words.  What I mean by that is they must provide you with a statutory or regulatory citation (like G.S. § 130A-143), not with an answer like “privacy of the patient” or “that’s confidential.”  You can only evaluate the agency’s position if you know the precise statute they claim.
  • If you are not asking for patient-specific information, HIPAA and state medical confidentiality statutes don’t apply.
  • HIPAA also doesn’t apply if you are not asking a “covered entity” — health plans, health care clearinghouses, and health care providers.  The hardest call under HIPAA may be if you ask for information from an emergency response team.  A 911 call that results in a dispatch to a fire doesn’t trigger HIPAA, but a call that results in EMS dispatch might.  However, North Carolina has a very specific statute that exempts from disclosure “medical records compiled and maintained” related to EMS programs.  S. § 143-518. The statute doesn’t define “medical records,” but whatever they are, they are confidential.
  • The key to remember is that release of de-identified information or aggregated data does not violate either HIPAA or state law.
  • Push back on anyone who tells you that HIPAA trumps state law. Our Court of Appeals have held that where “[t]he express terms of [federal law] permit the disclosure of the information requested by Plaintiffs,” it must be disclosed.  DTH Media Corp. v. Folt, 259 N.C. App. 61, 71, 816 S.E.2d 518, 525 (2018)  (emphasis supplied).

Email first@smvt.com to get a sample letter you can make your own.  Remove the legal-y language, if you prefer, and edit to match your relationship with your local public officials.

BOTTOM LINE:  The two keys are (1) be prepared to identify what documents contain the information you need and (2) demand that you either be given those documents or a valid statutory exemption.

For more discussion of these issues and for North Carolina and CDC data on COVID-19, see the resources below.

From the Reporters Committee for Freedom of the Press:

https://www.rcfp.org/wp-content/uploads/imported/MEDPRIV.pdf

 

From UNC School of Government:

Should a Local Government Be a HIPAA Hybrid Entity?  https://canons.sog.unc.edu/should-a-local-government-be-a-hipaa-hybrid-entity/

 

Using & Disclosing Protected Health Information (PHI)

https://www.sog.unc.edu/sites/www.sog.unc.edu/files/Using%20Disclosing%20PHI%20May%202018.pdf

 

CDC:

https://www.cdc.gov/coronavirus/2019-ncov/cases-updates/cases-in-us.html#reporting-cases

 

NCDHHS:

https://www.ncdhhs.gov/divisions/public-health/covid19/covid-19-nc-case-count

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