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From the Hotline

From the Spring 2004 issue of The News Media & The Law, page 5.

From the Spring 2004 issue of The News Media & The Law, page 5.

The Reporters Committee operates a toll-free hotline for journalists with questions about free press and freedom of information issues. In this column, our attorneys and media lawyers from around the country discuss the latest hot-topic questions.

The attorneys’ answers are not meant to be relied upon as legal advice specific to any reader’s situation. Rather, answers are for informational purposes to help journalists understand how the law affects their work. Consult a lawyer for help with any specific situation, or call the Reporters Committee’s legal assistance hotline for more information or for help in finding an attorney.

* Q: Reporters arrive at the scene of an accident, but no one will supply them with any information about those injured. Firemen, emergency response personnel, police . . . everyone says they are prevented from talking about victims due to privacy protections under the Health Insurance Portability and Accountability Act. Is that true for all of them, and it if isn’t, what are the reporters’ options in covering the story?

A: The only people who are governed by HIPAA Privacy Rules at the scene of an accident or fire are the people who are directly providing medical assistance to someone, assuming that the agency actually bills the patient. It is entirely clear that the privacy rules do not apply to law enforcement, neighbors, family, friends or other witnesses.

The police are free to tell the reporter that “Robert Jones,” his wife, “Emily,” and their baby, “Susi,” were rescued from the fire and taken to Hospital “X” to be treated for smoke inhalation. Trouble most frequently emerges when the fire chief or the fire department’s public information officer decide to act as if they are healthcare providers, calling the department a “hybrid entity” and refusing to give “event information” to anyone. This flies in the face of the facts, the public interest, community concern and common sense.

However, it is a problem that will not be solved at the scene of the event. It must be addressed ahead of time with local law enforcement and other “first responder” agencies. Meanwhile, reporters at the scene will have to look for information from neighbors and other witnesses who are not necessarily the best sources of information.

Alice Neff Lucan practices media law in Washington, D.C., in a solo practice that she has operated for the last 12 years. Prior to that, she worked as in-house counsel at Gannett Co.

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The question isn’t as easy as it looks. Traditionally, at least fire and police departments are required to comply with public records laws. But HIPAA may trump the public records laws in some circumstances.

If an agency provides medical services AND bills electronically for them — such as filing for reimbursement from private insurance, Medicare or Medicaid — the agency must comply with HIPAA, which restricts patient information. Thus, most ambulance services must comply.

Some fire and police departments provide emergency medical services. If so, they have two choices: They must either comply throughout the agency — which means widely absorbing and implementing a complex set of rules about handling records, creating privacy officers and installing computer security — or they may segregate the medical service from the rest of the agency and comply only within the medical services functions. That would mean even the ambulance drivers, for example, could not discuss patient information with the firefighters who are on the other side of the same building.

Such segregation of functions seems to make sense for some services.

HIPAA has created considerable confusion for first-responders. Some seem to be using HIPAA to avoid the press, without fully complying with patient privacy rules in other areas of their work. But some legitimately do have HIPAA responsibilities and are still trying to sort out how compliance affects public disclosure. The U.S. Department of Health and Human Services has created a decision tree on its Web site, www.hhs.gov/ocr, that will help reporters and agencies decide who is covered and who is not.

Two bright lines exist. If no medical service is provided or no electronic insurance filings are created, no HIPAA privacy rules apply. In that case, disclosure requirements would then depend upon public records laws. If medical service is provided and there are electronic filings, HIPAA does apply.

But the complexity of public agencies’ responsibilities may mean HIPAA applies to some departments and not others within a given agency. Reporters may need to turn to their state attorneys general for interpretations of HIPAA’s interplay with public records laws. Journalists in Texas did that recently, and were rewarded with a clear victory for public records.

HHS maintains that many of the press’ problems with HIPAA are the result of misinterpretations and overreaction by public officials. It believes some of the problems will be resolved with education. In other cases, the law’s fundamental principle that patients should be in control of their records may mean continued barriers for reporters.

Reporters must resort to public records — or oral statements stemming from them — from entities not covered by HIPAA to learn identities of victims. If they want information about a victim’s condition, they can learn that a victim is in the hospital and a one-word statement of condition unless the victim or personal representative of the victim has opted out of the privacy directory. If an opt-out occurs, reporters can try to contact the patient directly or rely on leaks, but leaking officials are at considerable risk — both civil and criminal penalties may apply.

Tonda Rush is president of American PressWorks, Inc., and counsel for King & Ballow in metro Washington, D.C. She represents, among others, the National Newspaper Association.

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Q: I am an editor at a newspaper in a state with a wiretapping statute that allows tape recording of conversations only if all parties to the conversation consent to be recorded. Does this law apply to speeches given to a crowd of people, or is it limited to more private conversations?

A: Generally, courts look at whether the speaker had a reasonable expectation that what he or she said would remain private. Ordinarily, it would not be reasonable for a speaker to expect a public speech to be “private.”

But the answer to this question largely depends on what the state wiretapping statute defines as illegal. For instance, California law makes it a crime to intercept or eavesdrop on any confidential communication. However, the statute specifically states that the term “confidential communication” only includes communications in which the parties have a reasonable expectation of privacy, and excludes communications “made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”

Similarly, Florida law states that oral communications do not include statements uttered at a public meeting.

Some states, such as Illinois, do not explicitly exclude public speeches from wiretapping laws. However, courts in Illinois have held that the law only applies to conversations meant to be of a private nature, and does not apply to “merely listening to or recording of any oral communication.” People v. Klingenberg, 34 Ill.App.3d 705 (1975).

The Reporters Committee publishes a state-by-state guide to taping conversations titled “Can We Tape?” which is available online at www.rcfp.org/taping/index.html

*

Q: I have been covering a controversy that is going to trial now, and while I have not been subpoenaed, I’ve learned that I am on the witness list. Should I do something about this now or wait to see if I’m actually called as a witness?

A: The problem should be addressed as soon as possible. Otherwise, you might be sitting in court at the start of the trial and suddenly be told that you, as a named potential witness, are subject to the “separation order” keeping witnesses out of the courtroom so that their own testimony will not be influenced by what other witnesses say. You would then be escorted out of the courtroom with no time to line up another reporter to cover the trial.

Such separation orders are routine in most courts, although not all courts use that name.

To have your name removed from the witness list, you should first negotiate with the attorney who listed you. It is always best to have an attorney handle this for you if at all possible.

If that doesn’t work, your only option is to petition the court — again, with an attorney if at all possible. First, ask to be removed from the witness list, arguing that being excluded from the courtroom affects your ability to report a story. Rely on a state shield law if there is one, or on the First Amendment, using the arguments usually employed to quash a subpoena.

If that fails, try to get the separation order narrowed, so that you will be excluded from only part of the trial — for instance, only when a witness is testifying about the same thing you would. Judges are often willing to do this because of the burden on your right to report the news.