Judge denies request to release historical cemetery records

Feb. 20, 2008  ·   An Adams County district judge last week barred the release of records identifying almost 1,000 people who were buried in a Hastings, Neb., psychiatric institution’s cemetery as much as 100 years ago.

Last summer, the Adams County Historical Society filed suit after the Hastings Regional Center denied its request to release the names of those buried at the cemetery between 1909 and 1959.

Judge Terri Harder upheld the center’s policy that all documents, including the burial records, are considered “confidential information” and are not open to the public.

The judge cited the 1996 federal Health Insurance Portability and Accountability Act (HIPAA), which protects the release of personal health information.

“If the requested records were released, the individuals buried would be named,” Harder wrote. “Release of these records would reveal that the individual was institutionalized for a mental illness or for a condition serious enough to require institutionalization.”

In court papers, State Health and Human Services attorney David McGath wrote that “unrestricted release of medical information can subject a person and their families to ridicule, scorn, loss of employment and other harm” and no law limits medical records to a passage of time.

The attorney for the historical society, Thomas Burke, said the policy only reinforces the “stigma” associated with mental health patients and their families.

“It’s unfortunate that the state is asserting patient privacy laws and HIPAA to deprive these individuals of some permanent dignity,” Burke said. “The state should recognize that by keeping the records secret, they are perpetuating that stigma.”

Burke cites public burial records that have been open for decades of former mental patients laid to rest at state hospitals in the towns of Lincoln, Beatrice and Norfolk, Neb. He argues that the privacy right dies with the person and that state law allows access to death records.

Chris Peterson, chief administrative officer for HHS, said that the requested information can be obtained through a death certificate or court order.

But Catherine Renschler, the historical society’s executive director, notes that not all of the unmarked graves have death certificates and obtaining a court order could cost more than $1,000. Moreover, she noted that the requests do not pertain to medical records but ask specifically for the names and death dates of those buried in the unmarked graves.

“If you know the names, you can get the death certificates because they are public — but we don’t know the names,” Burke said.

He said he plans to appeal the ruling.

(Adams County Historical Society v. Nancy Kinyoun; Media counsel: Thomas Burke, San Francisco) — Alanna Malone

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