Cemetery logs are ‘death records’ and public, court finds

From the Summer 2009 issue of The News Media & The Law, page 21.

The Nebraska Supreme Court in May ordered the names of individuals buried in a state cemetery released, saying the documents constituted death records and were thus subject to the state’s open records law.

The ruling is one of only a handful interpreting the state law.

The Adams County Historical Society had sought the names of more than 900 people buried in numbered graves in the cemetery attached to the Hastings Regional Center, a former mental institution.

The hospital refused to give the society access to the names, claiming the federal Health Insurance Portability and Accountability Act of 1996 prevented their release. The society in turn argued that the information constituted death records, and not medical records that might be covered by HIPAA.

The state’s highest court unanimously agreed with the society. The court found that names of individuals buried in the cemetery were death records, which are public under the state law.

“Nebraska’s public records statutes require that medical records be kept confidential, but exempt birth and death records from that requirement. Our privacy laws also apply to medical records and patient histories, but not to records of deaths,” Chief Justice Michael G. Heavican wrote for the court.

Since the court ruling, the historical society says it has received some of the records and is awaiting more.

The Reporters Committee filed a friend-of-the-court brief in the case.

Court rules FOIA attorney’s fee change not retroactive

For the first time, a federal appellate court in June held that the 2007 amendments to the Freedom of Information Act dealing with attorney’s fees are not retroactive.

The decision, by the U.S. Court of Appeals for the D.C. Circuit, resolves conflicting district court opinions on whether a FOIA requester whose case for records had concluded prior to the enactment of the 2007 amendments, but who was still seeking attorney’s fees, ought to be awarded attorney’s fees under the new, more liberal standard or the prior, more restrictive one.

The unanimous opinion in Summers v. Department of Justice, written by Judge Douglas H. Ginsburg for the three-judge panel, said applying the new fees provision retroactively would unfairly subject the federal government to increased liability.

The ruling by the D.C. Circuit panel will be binding on decisions in district court in Washington, D.C., where most FOIA cases occur, and will likely hold sway over other courts in the country because of the expertise of the D.C. Circuit on FOIA issues.