Freedom of Information

A college football game illustrates the strange interpretations of HIPAA. The star quarterback is sacked during a play and 50,000 spectators and a national TV audience see his leg snap. But the coach will not talk about the player's injury because he thinks HIPAA prevents him.

In reporting on universities -- whether the topic is football or campus crime -- journalists are finding the Health Insurance Portability and Accountability Act an obstacle to gaining records and information.

More than nine years after the Driver's Privacy Protection Act was passed, privacy worries continue to close off information to the public and the press.

The Health Insurance Portability and Accountability Act, a privacy measure, recently delivered a blow to reporters who routinely contacted hospitals to get information about the status of patients. The act ultimately required the Department of Health and Human Services to write privacy rules.

The Alabama Open Records Law provides access to “public writings,” without much elaboration. But recent statutes, case law and attorney general opinions have recognized that the term includes electronic records (and presumably electronic messages). Ala. Code § 22-9A-21(f) (1997).

AP Photo by J. Scott Applewhite

Are you having trouble getting access to information from federal, state or local governments? Do you need to follow the latest on how privacy and national security issues are affecting access?

Electronic messages are treated as public records. (Attorney General opinion 2002-1.) However, e-mail written by public officials and sent on, to or from personal-use computers but that does not go through public agency servers are not public records.

Topeka city commissioners’ use of text messaging during a public meeting in 2007 led the city attorney to issue a recommendation to discontinue the practice.

If your appeal is denied, or if the agency fails to respond to your appeal within 20 working days, you may file a FOIA lawsuit in the United States District Court most convenient to you, nearest the agency office where the records are kept or in the District of Columbia. Though technically you have up to six years after the date on which your appeal was denied to file a lawsuit, you should try to file the suit as soon as possible in order to demonstrate to the court your need for the information.¹⁸

The definition of an agency record covered by the Freedom of Information Law is sufficiently broad to include electronic messages maintained by government agencies. FOIL § 86(4). Whether a particular electronic communication is exempt from disclosure under FOIL will be determined by its content, rather than by the nature of the medium or format in which it is maintained by the agency. Matter of Data Tree, LLC v. Romaine, 9 N.Y.3d 454, 849 N.Y.S.2d 489 (2007) (“FOIL does not differentiate between records stored in paper form or those stored in electronic format”); Babigian v.

During the Bush administration, millions of pages of information was classified or re-classified. The National Security Archive, a nonprofit research facility that files hundreds of FOIA requests each year, discovered that a 1975 Defense Intelligence Agency document on former Chilean dictator Augusto Pinochet had been declassified in full and released in 1999 but re-classified in part in 2003 with major redactions.