M. Hospital reports
The following records for medical institutions in Alabama that are organized as public corporations are open pursuant to statutory authority:
1. Certificate of incorporation. Ala. Code § 22-21-172-173; § 11-95-3-4.
2. Annual fiscal year financial statement. Ala. Code § 22-21-187.
3. Audit reports. Ala. Code § 22-21-4(b).
The following records for public and private medical institutions in Alabama are open pursuant to statutory and Alabama attorney general opinion authority:
1. Information received by the state board of health through on-site inspections conducted by the state licensing agency. Ala. Code § 22-21-30.
2. Uniform cost reports of Medicaid providers. 184 Op. Att'y Gen. Ala. 27 (Aug. 15, 1981).
The following records for public and private medical institutions in Alabama are closed pursuant to statutory, case law or administrative rule authority:
1. Accreditation, quality assurance credentialing, and similar materials. Ala. Code § 22-21-8(b).
2. Patient records. Horne v. Patton, 291 Ala. 701, 708-09, 287 So. 824, 829-30 (1973) (physician-patient privilege); Ala. Code § 34-26-2 (psychologist/psychiatrist-patient privilege); see also Ex parte Rudder, 507 So. 2d 411 (Ala. 1987) (psychiatrist-patient privilege).
3. Hospital patient records produced pursuant to subpoena duces tecum, "until ordered published by the court trying the case at the time of trial." Ala. Code § 12-21-6(a).
4. Reports by insurance companies of judgments and settlements of medical liability claims, which are required to be filed with state licensing entities. Ala. Code § 27-26-5(c).
Investigative reports regarding patient injuries and death prepared by the Bureau of Special Investigations, the investigative division of the Alabama Department of Mental Health, are considered "law enforcement investigative reports" within the meaning of Alabama Code § 12-21-3.1, and are therefore entitled to protection from civil subpoena, except upon a showing that the information contained in the report cannot be obtained from other sources without undue hardship. Lambert v. Ala. Dep't of Mental Health & Mental Retardation, 840 So. 2d 863 (Ala. 2002); Ex parte Ala. Dep't of Mental Health & Mental Retardation, 840 So. 2d 876 (Ala. 2002).
Confidentiality of licensing and administrative proceedings by the Department of Health and Social Services in connection with hospitals and other health care facilities is governed generally by AS 47.32.180. Also, state law establishes certain health care "review organizations," including the State Medical Board, hospital governing bodies and others, that are to gather and review information relating to the care and treatment of patients. The purposes for doing this include, among others, evaluating and improving health care, reducing morbidity or mortality, work or cost controls, developing professional standards and norms of care, and ruling on controversies and disputes involving insurance carriers, licensing boards and others. All data and information acquired by a review organization must be held by it in confidence. However, information, documents or records otherwise available from original sources are not immune because they were presented during proceedings of a review organization. AS 18.23.030. Information and records obtained in the course of a screening investigation, evaluation, examination or treatment of patients under the state civil commitment statute are confidential. The patient or an individual to whom the patient has given written consent can obtain these records. AS 47.30.845. A statute enacted in 1990 governs "health maintenance organizations" that undertake to provide or arrange for basic health care services to enrollees on a prepaid basis. Records concerning these HMOs are public except for trade secrets, privileged, confidential commercial, or financial information as determined by the director, and information required on annual reports showing the number, amount and disposition of malpractice claims settled during the year by the HMO, AS 21.86.270, and information concerning malpractice claims settled. AS 21.86.100(b). Also, data or information provided to an HMO pertaining to the diagnosis, treatment or health of an enrollee or applicant is generally confidential. AS 21.86.280. Examination reports for HMOs are to be handled like others under this chapter.
“Unless otherwise provided by law, all medical records . . . are privileged and confidential.” A.R.S. § 12-2292. “Medical record” includes “all communications related to a patient’s physical or mental health or condition that are recorded in any form or medium and that are maintained for purposes of patient diagnosis or treatment, including medical records that are prepared by a health care provider or by other providers.” A.R.S. § 12-2291(6). Thus, medical or other records containing personally identifiable information may only be disclosed pursuant to statute. See, e.g., A.R.S. § 36-160(A) (state or county home health services); A.R.S. § 36-404(A)(2) (health care institutions); A.R.S. § 36-568.01 (developmental disabilities); A.R.S. § 36-509 (behavioral health); A.R.S. § 36-664(F) (communicable diseases); A.R.S. § 36-887(B) (child care facilities); A.R.S. § 36-897.12 (child care group homes); A.R.S. § 36-2152 (parental consent or court proceedings pertaining to unemancipated minors who want abortions); A.R.S. § 36-2220 (emergency medical services).
“The governing body of each licensed hospital or outpatient surgical center shall require that physicians admitted to practice in the hospital or center organize into committees or other organizational structures to review the professional practices within the hospital or center for the purposes of reducing morbidity and mortality and for the improvement of the care of patients provided in the institution.” A.R.S. § 36-445. All proceedings, records, and materials prepared in connection with these peer reviews are confidential. A.R.S. § 36-445.01.
Many health care related boards acquire hospital and medical records during their investigations; these records are often statutorily protected as confidential. See, e.g., A.R.S. § 32-1451.01(E) (Arizona Medical Board); A.R.S. § 32-1551.01 (Naturopathic Physicians Medical Board); A.R.S. § 32-1664(M) (Board of Nursing); A.R.S. § 36-2245(K) (Department of Health Service’s oversight of ambulance services); A.R.S. § 32-3553(K) (Board of Respiratory Care). Not only are the Arizona Medical Board’s investigative files not subject to A.R.S. § 39-121, they are absolutely privileged and not discoverable in civil litigation. Ariz. Bd. of Med. Exam’rs v. Superior Court, 186 Ariz. 360, 361-62, 922 P.2d 924, 925-26 (Ct. App. 1996); but see State v. Ditsworth, 216 Ariz. 339, 342, 166 P.3d 130, 133 (Ct. App. 2007) (finding that § 32-1451(O) requires the Arizona Medical Board to make investigatory evidence available to the appropriate criminal justice agency if it “determines that a criminal violation may have occurred involving the delivery of health care”).
Several statutes delegate the authority to form rules of confidentiality about health care records. See, e.g., A.R.S. § 36-107 (giving the Department of Health Services the power to designate confidentiality); A.R.S. § 36-2903(I) (directing the Director of the Arizona Health Care Cost Containment System to “prescribe by rule the types of information that are confidential and circumstances under which such information may be used or released”).
Disclosures of medical records also need to comply with the HIPAA privacy regulations. See 45 C.F.R. Parts 160, 162 & 164. Similarly, records maintained in connection with the performance of a program or activity relating to substance abuse education, prevention, training, treatment, rehabilitation or research that is regulated or directly or indirectly assisted by the United States government must comply with the regulations implementing the federal substance abuse law. See 42 C.F.R. Part 2.
The FOIA itself exempts “medical records.” Ark. Code Ann. § 25-19-105(b)(2). Hospital records can clearly fall within this exemption. See Ark. Op. Att’y Gen. No. 91-374. Other statutes may also come into play. See e.g., Ark. Code Ann. § 17-95-104(d) (reports of physician misconduct submitted by hospital to State Medical Board are confidential); § 17-95-107(d)(4) (physician credentialing information obtained by State Medical Board); § 20-9-221(a) (information about health care facilities received by State Department of Health “shall not be disclosed publicly in such manner as to identify individuals or institutions except in a proceeding involving . . . licensing or revocation of a license”), § 20-9-304(a) (reports, memoranda, and other data of hospital staff committees used in the course of medical studies for purpose of reducing morbidity or mortality “shall be strictly confidential and shall be used only for medical research”), § 20-46-104(b) (records of State Hospital are confidential). Records and reports of hospital medical review committees are also exempt from disclosure. Ark. Code Ann. § 16-46-105(a). The previous version of this statute was held insufficiently specific to qualify as an FOIA exemption, Baxter County Newspapers Inc. v. Medical Staff of Baxter Gen. Hospital, 273 Ark. 511, 622 S.W.2d 495 (1981), but the amended statute passes muster. Ark. Op. Att’y Gen. No. 2000-271. Nonprofit corporations that lease county hospitals are not subject to the FOIA unless they receive direct public funding other than Medicare and Medicaid payments. Ark. Op. Att’y Gen. Nos. 2004-233, 97-148, 96-116, 83-163.
Generally exempt. No provider of health care shall disclose medical information regarding a patient without first obtaining authorization as required by statute. Cal. Civ. Code § 56.10; see also The Health Insurance Portability and Accountability Act of 1996 ("HIPAA"), 42 U.S.C. § 1320d (governing use and disclosure by a covered entity of personally identifiable health care information relating to an individual). However, medical records of a tort claimant against a public agency are not exempt from disclosure because claimant by filing claim places alleged physical injuries and medical records substantiating them at issue. See Register Div. of Freedom Newspapers, Inc. v. Cty. of Orange, 158 Cal. App. 3d 893, 902, 205 Cal. Rptr. 92 (1984).
Medical records of individual persons are expressly exempted from the Open Records Act by Colo. Rev. Stat. § 24-72-204(3)(a)(1).
Alcohol treatment records are confidential under Colo. Rev. Stat. § 25-1-312(1).
Mental health records are confidential under Colo. Rev. Stat. § 27-10-120(1).
See Conn. Gen. Stat. §1-210(b)(2) as discussed above in Records Outline at II.A.2.b.
Conn. Gen. Stat. §19a-25 imposes certain limitations on the disclosure of information and records obtained by the department of health services in connection with studies of morbidity and mortality. In general, such information is "confidential" and is not available to the public.
Conn. Gen. Stat. §4-104 states that a hospital shall permit a patient, or his physician or his attorney, to examine his hospital records, and it provides a procedure for subpoenaing hospital records.
In Director of Health Affairs, UConn Health Center v. FOIC, 293 Conn. 164, 977 A.2d 148 (2009), the Supreme Court held that records relating to peer review proceedings were not exempt under Conn. Gen. Stat. §19a-17b and were therefore disclosable under FOIA.
Hospital records are exempt under open records exemption if the disclosure would constitute an invasion of privacy. 29 Del. C. § 10002(o)(1). The Insurance Commission’s annual reports of malpractice claim statistics are public records, but other information reported to the Insurance Commission is confidential and even exempt from legal process. 18 Del. C. § 6820. The Delaware Medical Board also has the power to designate its records exempt from the Act. 24 Del. C. § 1713(14).
District of Columbia
The privacy exemption, D.C. Code Ann. § 2-534(a)(2), may apply.
Public hospital records are subject to disclosure absent statutory examination. Op. Att’y Gen. Fla. 97-49 (1997) (records relating to the operation of hospital are subject to Chapter 119); Tribune Co. v. Hardee Mem’l Hosp., Case No. CA-91-370 (Fla. 10th Jud. Cir. Ct. 1991) (settlement agreement entered in lawsuit against hospital alleging hospital swapped babies was public record subject to disclosure despite confidentiality provision in agreement). However, many statutory exemptions limit public access to hospital records. See, e.g., Fla. Stat. § 395.0193(4) (2020) (records of peer review committees and governing boards of hospitals which relate to disciplinary proceedings against staff); Fla. Stat. § 456.057(7)(a) (2020) (records of diagnosis, treatment and examination may not be released without written authorization of the patient); Fla. Stat. § 394.4615(1) (2020) (clinical records of mental health patients are confidential and exempt from section 119.07(1)); Fla. Stat. § 394.907(7) (2020) (community mental health facility records related to licensee compliance with quality assurance programs are exempt from Chapter 119); Fla. Stat. §§ 395.3035(2)(a-d) (2020) (exempting certain hospital records and information from Chapter 119, including contracts for managed care arrangements, strategic plans the disclosure of which would be reasonably likely to be used by a competitor to frustrate the purpose of the plan before it is implemented, and trade secrets).
Records of pregnancy termination are also privileged information and deemed to be confidential records, except upon court order. Such information may not pass from the hospital and may lawfully be released only when authorized by a court of competent jurisdiction. Fla. Stat. § 390.0112(4) (2020).
Authority-owned health systems are subject to the Act, whether operated by the authority proper or a private entity created by the authority to operate the system on the authority’s behalf. O.C.G.A. § 50-18-70(b)(1) (incorporating § 50-14-1 definition of agency). See, e.g., Richmond Cty. Hosp. Auth. v. Se. Newspapers Corp., 252 Ga. 19, 311 S.E.2d 806 (1984) (records identifying the names, salaries, and job titles of hospital authority employees are public records and must be disclosed); Atchison v. Hosp. Auth., 245 Ga. 494, 265 S.E.2d 801 (1980) (business telephone records of hospital authority are public records and must be disclosed); Nw. Ga. Health Sys. v. Times-Journal, 218 Ga. App. 336, 461 S.E.2d 297 (1995) (private company that operates public hospital is a "vehicle" of hospital authority and thus subject to Act); Smith v. Northside Hosp., 807 S.E.2d 909 (Ga. 2017) (records of privately-restructured public hospital authority health systems are subject to Act). Under O.C.G.A. § 31-7-75.2 a hospital authority or private entity created to operate it is not required "to disclose or make public any potentially commercial valuable plan, proposal, or strategy that may be of competitive advantage in the operation of the corporation or authority or its medical facilities and which has not been made public." This exemption terminates, however, once the plan or proposal is "either approved or rejected." Id.
Private hospital accreditation reports are subject to disclosure under the Act if submitted to a state agency for licensing purposes. Ga. Hosp. Ass'n v. Ledbetter, 260 Ga. 477, 396 S.E.2d 488 (1990).
Information relating to medical, psychiatric, or psychological history, diagnosis, condition, treatment, or evaluation, other than directory information while an individual is present at such a facility, is information in which an individual has a significant privacy interest and may be withheld pursuant to Section 92F-13(1) unless the public interest in disclosure outweighs the privacy interest. Haw. Rev. Stat. § 92F-14(b)(1). But see Names and Locations of Inmates Confined in State Correctional Facilities, OIP Op. Ltr. No. 89-14 (Dec. 15, 1989) (requiring public disclosure of roster listings pursuant to § 92F-12(a)(4) (directory information concerning presence in state facility) and release date but mandating withholding of inmates' Social Security numbers).
Separate from the UIPA context, the Hawai‘i Supreme Court has recognized an “inviolable” constitutional right under the Hawai‘i State Constitution’s privacy clause (Haw. Const. Art. 1, § 6) to privacy of individuals’ medical records, which the Supreme Court stated not only “provides greater privacy to Hawai‘i’s people than its federal analogs,” but also “more stringent [privacy] protection over patient medical records than does HIPAA.” Pacific Radiation Oncology, LLC v. Queen’s Medical Ctr., 138 Hawai‘i 14, 19, 375 P.3d 1252, 1257 (2016) (internal quotation marks omitted); see also Cohan v. Ayabe, 132 Hawai‘i 408, 415-18, 322 P.3d 948, 955-58 (2014). The Court further opined that even “de-identified” medical information, with all information potentially identifying a patient removed, is subject to privacy protection that, among other things, prevents such de-identified records from use in litigation between third parties. Pacific Radiation, 138 Hawai‘i at 22-23, 375 P.3d at 1259-60. The Court’s expansive view of the medical privacy right may inform future OIP guidance concerning the government’s release of medical records even when personal identifiers are removed.
Hospital reports, if they concern an individual’s medical condition, are exempt from disclosure except as they are necessary for a background check on an individual required by federal law regulating the sale of firearms, guns or ammunition. Idaho Code § 74-106(13). If the reports are non-medical and relate to the management or financial condition of a public hospital, they are generally open to the public. See, e.g., Magic Valley Newspapers, Inc. v. Magic Valley Regional Medical Center, 138 Idaho 143, 59 P.3d 314 (2002).
Closed under personal privacy exemption and federal statute protecting medical records, the Health Insurance Portability and Accountability Act of 1996 (HIPAA). See 5 ILCS 140/7(1)(c); 5 ILCS 140/7(1)(a). A private hospital would not qualify as a public body. See 5 ILCS 140/2; see generally Coy v. Washington County Hosp. Dist., 372 Ill. App. 3d 1077, 1090, 866 N.E.2d 651, 663 (5th Dist. 2007) (holding that names of patients treated at public hospital were exempt from disclosure).
(As a practical matter, certain records — admission and birth information, for example — are often published by voluntary agreement between hospitals and the media.)
Minutes or records of hospital medical staff meetings may be disclosed at the discretion of the hospital. Ind. Code § 5-14-3-4(b)(9). Patient medical records and charts may not be disclosed unless the patient gives written consent under Indiana Code Section 16-39. Ind. Code § 5-14-3-4(a)(9).
Hospital records, medical records, and professional counselor records of the condition, diagnosis, care, or treatment of a patient or former patient or a counselee or former counselee, including outpatient. However, confidential communications between a crime victim and the victim's counselor are not subject to disclosure except as provided in § 915.20A.1 (Confidential Communications — Counselors and Victims). However, the Iowa department of public health shall adopt rules which provide for the sharing of information among agencies concerning the maternal and child health program, while maintaining an individual's confidentiality. Iowa Code § 22.7(2).
"Outpatient," as used in § 22.7(2), means one who is "treated at a clinic or dispensary connected with a hospital who is not a hospital inmate." Head v. Colloton, 331 N.W.2d 870, 874 (Iowa 1983). The identity of a potential bone marrow donor is a hospital record of the condition, diagnosis, care or treatment of a patient or former patient within the meaning of this section. Head, 331 N.W.2d at 876.
But, documents filed in the office of the governor which pertain to the involuntary sterilization of a county home resident were public and not confidential hospital records within the meaning of the exemption because they were not maintained by the governor as hospital or physician records. Howard v. Des Moines Register & Tribune Co., 284 N.W.2d 289, 300 (Iowa 1979).
Records pertaining to medical services, including the identity of doctors, nurses and hospitals receiving public funds for services performed, the number and kind of services performed, and statistical information about patients (so long as identity is not revealed) are not excluded from public examination. 78 Op. Att'y Gen. 677, 678 - 679 (Sept. 20, 1978).
Iowa Code Chapter 135 give university hospitals discretion to deny public disclosure of the infection data summaries. Burton v. Univ. of Iowa Hospitals & Clinics, 566 N.W.2d 182, 189 (Iowa 1997).
Medical, psychiatric, psychological or alcoholism or drug dependency treatment records are exempt from disclosure. K.S.A. 45-221(a)(3); Kan. Att’y Gen. Op. 1994-81. Since personal privacy for those undergoing evaluation or treatment for alcohol or drug abuse is protected by federal law, absent waiver of the restriction by consent of the individual, the address of persons in the custody of the Kansas Department of Corrections who reside at a facility for the purpose of alcohol or substance abuse evaluation or treatment may not be distributed as required by the KORA. Kan. Att’y Gen. Op. 2011-05.
The following records are also exempt from disclosure: hospital personnel records (Kan. Att’y Gen. Op. 1987-109); hospital financial records (Kan. Att’y Gen. Op. 1977-307); peer review records (K.S.A. 65-4915(b)); "Reportable incidents" of health care providers (K.S.A. 65-4925)); and certain licensing information (K.S.A. 65-436).
A nonprofit community mental health center under supervision and control of a county and the state Department of Social and Rehabilitation services is a public agency under KORA and is subject to KORA requirements. Kan. Att’y Gen. Op. 1994-111. However, records of state institutions for the mentally disabled are confidential. K.S.A. 76-12b11. Also, the records of community mental health or mental retardation facilities and psychiatric hospitals are privileged. K.S.A. 65-5602.
Municipal courts cannot disclose a defendant's presentence alcohol and drug evaluation reports prepared by a person or entity receiving federal assistance to third parties absent consent from defendant or a court order pursuant to 42 U.S.C. § 290dd-2(b)(2)(C) and 42 C.F.R. § 2.61 et seq.; Kan. Att’y Gen. Op. 1994-150.
Records related to independent contractors are generally open. Kan. Att’y Gen. Op. 99-55.
Exempt to the extent they contain personally identifiable information or reflect the records or proceedings of hospital committees. La. Rev. Stat. Ann. § 44:7. Administrative and financial records are not exempt. Op. Att'y Gen. 86-515-A. George v. Christus Health Southwestern Louisiana, 203 So.3d 541 (La.App. 3d Cir. 2016) (remanding to district court for in camera review of documents to determine if exemption applied).
Maine enacted a comprehensive scheme regulating access to medical information of all kinds, applicable to hospitals, all medical care providers, insurers and public agencies. The only information about a patient that can be released by a hospital without written patient consent is confirmation of admission, a brief description of the patient's health status, such as "stable" or "critical," and room number. This information is only available in response to inquiries that identify the patient by name and only if the patient has not prohibited release of any information. 22 M.R.S.A. § 1711-C(6)(R)-(S). Any information in the possession of the Maine Health Data Organization (established as a uniform health care reporting information system) is available for public inspection except confidential commercial information as defined by rule making and information that may identify an individual patient or health care provider. 22 M.R.S.A. § 8707. Records of hospital licensing are not declared confidential (22 M.R.S.A. Ch. 405), and thus are public. (1 M.R.S.A. § § 402, 408). But information relating to patients, recipients of government assistance or persons making a complaint to the Department of Human Services may not be released to the public (22 M.R.S.A. § 1828). Additionally, applications for certificates of need, which contain extensive financial data concerning hospitals, are available for public inspection. 22 M.R.S.A. § 313.
A record that relates to medical administration, staff, medical care, or other medical information and containing information about specific individuals is generally closed pursuant to § 4-306; see also Md. Code Ann., Health Gen'l § 4-302. The Legislative Auditor may have access to the records of the Department of Health and Mental Hygiene for the performance of his/her duties. 63 Op. Att'y Gen. 453 (1978).
Medical files and information are “absolutely exempt from mandatory disclosure where the files or information are of a personal nature and relate to a particular individual.” Globe Newspaper Co. v. Boston Ret. Bd., 388 Mass. 427, 434, 446 N.E.2d 1051, 1056 (1983). Hospital patient records, even if kept by a public facility, are also confidential. G.L. c. 111, § 70E(b). Certain contracts for hospital or related health care services, if between a government-operated medical facility and another entity specifically described in the Public Records Law, may be withheld pursuant to exemption (m). G.L. c. 4, § 7(m). A bevy of other statutory provisions mandate confidentiality of particular medical records under certain circumstances. See, e.g., G.L. c. 111, § 110B (treatment or examination of Reyes syndrome); G.L. c. 111, § 111B (registry of malignant diseases); G.L. c. 111, § 202 (report of fetal deaths); G.L. c. 111D, § 6 (report of infectious diseases). However, records relating to municipal health insurance plans and the costs of providing health insurance benefits to employees would be public records. Guide to Mass. Pub. Records Law at 27–28 (Sec’y of State, rev. Mar. 2020), https://www.sec.state.ma.us/pre/prepdf/guide.pdf. Moreover, the public does have access to physician profiles that include hospital affiliation, certain disciplinary actions, criminal history information, malpractice convictions and settlements, as well as certain personal background information. G.L. c. 112, § 5.
Public health care facilities may provide "directory information," that is, name of a patient, date admitted, and general condition. Minn. Stat. § 13.384, subd. 1(a). Directory information is public, unless the patient requests otherwise. Minn. Stat. § 13.384, subd. 2(b). If a patient is confined to a hospital operated by a government entity due to legal commitment, directory information is only public until the person is released, at which time the directory information becomes private. Minn. Stat. § 13.384, subd. 2(a).
Directory information concerning an emergency patient who cannot communicate may be withheld until a reasonable effort is made to notify the next of kin. Minn. Stat. § 13.384, subd. 2(c).
Generally closed except board minutes and certain financial reports. See § 41-9-68. “Run reports” for city EMS units are public records but name of person treated and medical information is exempt. Att’y Gen. No. 93-592, Oct. 6, 1993 to Lawrence.
If a hospital constitutes a public governmental body, its records are subject to disclosure under the Sunshine Law unless a particular exception applies. For example, budgetary and policy-oriented discussions of a Hospital Board may be open to public inspection; however, individual patient records would not be open to inspection by the general public. Mo.Rev.Stat. § 610.021(5) (records relating to nonjudicial mental or health proceedings involving identifiable persons may be closed to the public). Various Missouri statutes close certain medical, mental and nursing home records.
Mo.Rev.Stat. § 167.183: Immunization Records. Immunization records may only be disclosed to certain persons enumerated in Mo.Rev.Stat. § 167.183, e.g., public agencies, schools, health care professionals. Disclosure of such records to other persons is prohibited. Id.
Mo.Rev.Stat. § 191.656: HIV Testing. Any information or records containing a person’s HIV infection status or the results of any individual’s HIV testing is confidential, and may be disclosed only to certain persons designated in Mo.Rev.Stat. § 191.656 (e.g., certain public agencies, adoptive or foster parents, day care facilities, group homes). The statute authorizes civil actions for violation. Mo.Rev.Stat. § 191.686 authorizes the Department of Health to identify children who test positive for HIV to schools that adopted a policy consistent with the recommendations of the Centers for Disease Control. Such schools may in turn release that information to certain persons who “need to know” the child’s identity in order to provide proper health care.
Mo.Rev.Stat. § 191.731: Pregnant Women Referred to the Department of Health for Substance Abuse Treatment. Mo.Rev.Stat. § 191.731 provides that records and reports pertaining to women referred to the Department of Health for substance abuse treatment shall be confidential. Mo.Rev.Stat. § 191.743 provides that records and reports to the Department of Health pertaining to pregnant women who are determined to be a high risk for substance abuse are also confidential.
Mo.Rev.Stat. § 192.067: Patient Medical Information Reported to the Department Of Health. The Missouri Department of Health is authorized to receive information from individual patient records from health professionals for the purpose of conducting epidemiological studies. Mo.Rev.Stat. § 192.067 renders such individually identifiable patient information confidential. The Department of Health may only release that information in statistical aggregate form, or to other public health authorities that agree to keep the information confidential. Any public health official or employee who knowingly releases information deemed confidential by this section may be found guilty of a misdemeanor.
Mo.Rev.Stat. § 198.032: Nursing Home Residents. Mo.Rev.Stat. § 198.032 provides that medical, social, personal, or financial records of any nursing home resident is confidential, only to be released upon a court order, or to certain enumerated agencies, law enforcement officials, or the person to whom the records pertain.
Mo.Rev.Stat. § 208.155: Medical Assistance Program Records. All information concerning applicants and recipients of medical assistance are confidential. Mo.Rev.Stat. § 208.155. Any disclosure of such information is restricted to purposes directly connected with the medical assistance program. Id.
Mo.Rev.Stat. § 210.040: Blood Test Results for Syphilis or Hepatitis B in Pregnant Women. If a pregnant woman consents to a blood test for syphilis or hepatitis B, and the result of that blood test is either positive or doubtfully positive, the physician or other health care professional is to report that information to the local county or city department of health. Mo.Rev.Stat. § 210.040. Such reports and the findings reported are confidential. Id. Mo.Rev.Stat. § 210.824: Artificial Insemination. Records of artificial insemination of a woman with the consent of her husband, and under the supervision of a licensed physician, filed with the Bureau of Vital Records of the Missouri Department of Health, are confidential pursuant to Mo.Rev.Stat. § 210.824.
Mo.Rev.Stat. § 205.988: Community Mental Health Services Records. Records or information that identify persons who have received services from a community mental health center are confidential pursuant to Mo.Rev.Stat. § 205.988.
Mo.Rev.Stat. § 630.080: Department of Mental Health Records. Personally identifiable information retained by the Missouri Department of Mental Health is generally confidential pursuant to Mo.Rev.Stat. § 630.080.
Mo.Rev.Stat. § 630.140: Residential Facilities and Day Programs Operated, Funded or Licensed by Department of Mental Health. Records and information relating to voluntary or involuntary patients, residents or clients of residential facilities or day programs operated, funded or licensed by the Missouri Department of Mental Health are closed (with limited exceptions) pursuant to Mo.Rev.Stat. § 630.140.
Mo.Rev.Stat. § 630.167: Department of Mental Health Investigation Reports. Department of Mental Health investigation reports referring to abuse or neglect of mental patients, residents or clients are confidential except with respect to parents or guardians of the patient, resident or client who is the subject of the report. Mo.Rev.Stat. § 630.167. However, investigative reports pertaining to abuse and neglect are no longer confidential once a final report is complete, and final reports of substantiated abuse or neglect issues on or after August 28, 2007, are open and shall be available for release in accordance with chapter 610, unless the director of the department determines the release of the information would jeopardize the care of a patient who has not been adjudged incapacitated or the safety of the public. However, the name and treatment of the patient and the names and descriptions of the complainant, witnesses or other persons for whom findings are not made against remain confidential. Id.
Mo.Rev.Stat. § 198.032: Nursing Home Residents. Mo.Rev.Stat. § 198.032 provides that medical, social, personal, or financial records of any nursing home resident are confidential only to be released upon a court order, or to certain enumerated agencies, law enforcement officials, or the person to whom the records pertain.
Mo.Rev.Stat. § 198.032.2: Inspections or Investigations of Nursing Homes. Mo.Rev.Stat. § 198.032.2 requires that reports of inspections or investigations of nursing homes are open to the public, provided that the identity of any individual resident or of any person making a complaint about the nursing home is not revealed.
Mo.Rev.Stat. § 198.070.7: Reports of Abuse or Neglect. Reports relating to abuse or neglect of residents of convalescent, nursing and boarding homes are confidential. Mo.Rev.Stat. § 198.070.7. Such records are not subject to the provisions of either the Public Records Law, Mo.Rev.Stat. §§ 109.180 and. 190, or the Sunshine Law, Mo.Rev.Stat. §§ 610.010 et seq. Id. Pursuant to Mo.Rev.Stat. § 660.320, the name of the complainant or any person mentioned in a complaint may not be disclosed unless he or she consents, the Department of Social Services determines disclosure is necessary in order to prevent further abuse or neglect, or it is required under other circumstances enumerated in the statute. Id.
Open unless related to treatment records of patients, in which case they are closed to the public unless the patient provides written authorization for their disclosure. Uniform Health Care Information Act, Mont. Code Ann. §§ 50-16-501 to 50-16-553. Mont. Code Ann. § 50-16-535 authorizes release of health care information by court order in judicial and administrative proceedings. Such information might then be publicly discussed by a court document.
No reported decision under the Statute. Compare RSA 329:26 (physician-patient records); RSA 151:13 et seq. (quality assurance records); RSA 151:21, IX (patient records at state hospital).
Any reports which include individual patient information generally are confidential. Moreover, HIPPA prevents disclosure of certain medical information. To the extent any information in these records is exempted from disclosure by HIPPA, it is likewise exempted from the definition of “government record” under OPRA. See N.J.S.A. 47:1A-1 and 9.
Individual medical information is not subject to disclosure. NMSA 1978 § 14-2-1(A). Beyond that, some "hospital reports" will be public. See NMSA 1978 § 14-6-1, which has been identified as prohibition against releasing any "health information."
Foster care records.
Sam v. Sanders, 55 N.Y.2d 1008, 434 N.E.2d 710, 449 N.Y.S.2d 474 (1982) (limiting access to records of foster care under Social Services Law § 372); Wise v. Battistoni, 208 A.D.2d 755, 617 N.Y.S.2d 506 (2d Dep’t 1994) (all Department of Social Services records relating to a child are confidential and pursuant to Social Services Law § 372(3) and (4) are not subject to disclosure under FOIL); Malowsky v. D’Elia, 160 A.D.2d 798, 163 N.Y.S.2d 479 (2d Dep’t 1990) (medical histories of a child in foster care and of his natural parents shall be provided under Social Services Law § 373(a) after deletion of identifying details); New York News Inc. v. Grinker, 142 Misc.2d 325, 537 N.Y.S.2d 770, (Sup. Ct. 1989) (foster care records are confidential under Social Services law § 372, and child abuse reports are confidential under Social Services law § 422).
Hospital and health care facility reports.
Miller v. Dep’t of Health, 91 A.D.2d 975, 457 N.Y.S.2d 564 (2d Dep’t 1983) (denying access to records of a patient abuse investigation of a nursing home under Public Health Law § 2803-d as well as other FOIL exemptions); Ingram v. Axelrod, 90 A.D.2d 568, 456 N.Y.S.2d 146 (3d Dep’t 1982) (granting access to hospital records and factual portions of investigative report); St. Joseph’s Hospital v. Axelrod, 74 A.D.2d 698, 425 N.Y.S.2d 669 (3d Dep’t 1980), appeal denied, 49 N.Y.2d 706, 405 N.E.2d 711, 428 N.Y.S.2d 1026 (1980) (granting access to uniform financial report); New York Ass’n of Homes & Services for the Aging Inc. v. Axelrod, No. 7414-85 (Sup. Ct., Albany Cty., Aug. 28, 1985) (denying access to Patient Review Instruments on Medicaid Patients based on Social Services Law § 369(3)); Fox v. Krill, No. 3406-81 (Sup. Ct., Albany Cty., May 15, 1981) (denying access to records of investigation of patient abuse in health care facility).
Short v. Bd. of Managers, 57 N.Y.2d 399, 442 N.E.2d 1235, 456 N.Y.S.2d 724 (1982) (denying access to medical records as exempt from disclosure by Public Health Law and Social Services Law); John P. v. Whalen, 54 N.Y.2d 89, 429 N.E.2d 117, 444 N.Y.S.2d 598 (1981) (denying access to patient records and patient and doctor interviews compiled by State Board for Professional Misconduct during investigation, information confidential by Public Health Law); Newton v. District Attorney, Bronx Cty., 186 A.D.2d 57, 588 N.Y.S.2d 269 (1st Dep’t 1992) (denying access to medical records as an unwarranted invasion of personal privacy); Marshall v. State Bd. for Professional Medical Conduct, 73 A.D.2d 798, 423 N.Y.S.2d 721 (4th Dep’t 1979), appeal denied, 49 N.Y.2d 709, 406 N.E.2d 1354, 429 N.Y.S.2d 1026 (1980) (denying access to information giving rise to professional misconduct charges against psychiatrist); Rold v. Coughlin, 142 Misc.2d 877, 538 N.Y.S.2d 896 (Sup. Ct. 1989) (access to inmate health care records granted with identifying details redacted); Malowsky v. LaPook, No. 10024-25 (Sup. Ct., Albany Cty., Sept. 27, 1985) (granting access to an inmate’s medical records, in order for inmate’s son to acquire information about his background).
A medical history is information that one would reasonably expect to be included as a relevant and material part of a proper medical history. A medical history is exempt from disclosure whether or not given to a health care provider or contained in an employment application. Hanig v. Department of Motor Vehicles, 79 N.Y.2d 106, 588 N.E.2d 750, 580 N.Y.S.2d 715 (1992) (responses on driver’s license application regarding disabilities is exempt as a medical history).
Shedrick v. Coughlin, 176 A.D.2d 391, 574 N.Y.S.2d 98, (3d Dep’t 1991) (denying access to inmates Alcoholics Anonymous records as confidential under federal statute, however, disclosure of confidential information may be warranted in the context of a pending criminal proceeding).
If a hospital is a “public agency of North Carolina government or its subdivisions,” the hospital’s business and administrative records are public records. Owing to the varied and complex organizational structures of certain hospitals, numerous questions have arisen in recent years as to whether certain hospitals are “public agencies” within the meaning of the Public records law. In some cases, the governing bodies of hospitals concede that the hospital itself is a “public agency” but contend that affiliated operations and businesses — such as subsidiaries that own and operate medical office buildings — are not “public agencies.” These questions have become further complicated since the passage in 1983 of a comprehensive re-codification of the state statutes governing public hospitals. (Chapter 131E of the General Statutes). Among other things, this chapter authorizes local governments to lease, sell or convey public hospitals to non-profit corporations, provided the corporations agree to operate the hospital for the benefit of the public, and provided that the conveyance includes reversionary rights in the event that the non-profit corporation fails to meet its obligations. G.S. § 131E-13(a). The North Carolina courts have provided some guidance by applying the public records law to a hospital that claimed that it was not a “public agency” within the meaning of the Public records law. News and Observer Publishing Company v. Wake County Hospital System, 55 N.C. app. 1, 284 S.E.2d 542 (1981), rev. denied, 305 N.C. 302, 291 S.E.2d 151, appeal dismissed and cert. denied, 459 U.S. 803, 103 S. Ct. 26, 74 l. Ed.2d 47 (1982). In that case, the Wake County Hospital System Inc. was held to be an “agency” of Wake County within the purview of the Public records law, notwithstanding that it is a nonprofit corporation and an independent contractor. the trial court’s ruling was based, among other factors, upon the fact that (1) the hospital was required to transfer its assets to the county upon dissolution;
(2) all appointments to the board of directors were subject to approval by the Wake County Board of Commissioners; (3) the county-owned hospital premises were leased to the non-profit corporation for $1.00 per year; (4) the county commissioners were entitled to review and approve the hospital’s annual budget; (5) the hospital’s books were subject to audit by the county; (6) the hospital system was financed by county bonds, the revenue from which was treated as revenue of the county; and (7) the hospital system was not authorized to alter its corporate existence or amend its articles of incorporation without the county’s written consent.
The Wake County hospital case indicates that North Carolina’s courts, in assessing whether a particular hospital is a “public agency” within the meaning of the Public records law, will closely scrutinize the details of the hospital’s corporate structure, operating agreements, and funding in order to evaluate the ties between the hospital and government. The opinion of the North Carolina Court of appeals includes two holdings that are of significant importance to the interpretation of the Public records law generally. First, the court held that “a corporate entity may be considered an agency of government” if its ties to the government are sufficient to make it an arm of the government. In other words, a public agency cannot divest itself of its public character merely by choosing the corporate form of organization. 55 N.C. app. at 11, 284 S.E.2d at 547.
Second, the court construed broadly the phrase in G.S. § 132-1 that describes a public record as any record made or received “pursuant to law or ordinance in connection with the transaction of public business.” The hospital system argued that this language should be construed as permitting public access only to those records which the system was required to compile. The Court of Appeals rejected this argument, holding that the phrase includes “in addition to those records required by law, those records that are kept in carrying out lawful duties.” 55 N.C. app. at 13, 284 S.E.2d 549. The Attorney General’s office has repeated that holding in advisory opinions. “The phrase ‘made or received pursuant to law or ordinance in connection with the transaction of public business’ includes, in addition to those records required to be kept by law, ‘records that are kept in carrying out [the agency’s] lawful duties.’” 1996 WL 925098, *2 (N.C.A.G.) (citation omitted). 1996 WL 925156, *1 (N.C.A.G.) (“This includes records kept in carrying out lawful duties.”).
Medical records of individual patients are not public records. See G.S. § 130a-374(a).
Please see the discussion of statutory exemptions, outlined in Section II(A)(2) above.
Generally, disclosure of protected health information or personal medical records is prohibited. See, e.g., N.D.C.C. ch. 23-01.3 (broadly prohibiting release of protected health information).
There is no statutory exemption for hospital reports. But, any record, except births, deaths, and the fact of admission or discharge from a hospital, that pertains to the medical history, diagnosis, prognosis, or medical condition of a patient that is generated and maintained in the process of medical treatment is exempt. Ohio Rev. Code § 149.43(A)(1)(a).
Also, records of hospital quality assurance committees and hospital boards or committees reviewing professional qualifications of present or prospective members of the hospital medical staff are exempt from mandatory disclosure. Ohio Rev. Code § § 2305.251, 2305.25; State ex rel. Fostoria Daily Review Co. v. Fostoria Hosp. Ass'n, 44 Ohio St. 3d 111, 541 N.E.2d 587 (1989).
Information received by the State Commissioner of Health through inspection or otherwise on hospitals is confidential and not to be disclosed publicly. 63 O.S., § 1-709. Medical records and communications between a physician or psychotherapist and mental patients are privileged and confidential. 43 O.S., § 1-109.
The Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) required that regulations be adopted concerning the disclosure of protected health information. HIPAA protects all “individually identifiable information” from disclosure without the release of the patient. 45 C.F.R. § 160.103. De-identified health information may be disclosed. 45 C.F.R. §§ 164.502 and 164.514. Identifiable health information may be disclosed without a patient release in limited situations. 45 C.F.R. § 164.502(a)(1). In general, state laws that are contrary to the HIPAA privacy rule are preempted by the federal requirements. 45 C.F.R. § 160.203.
The Law similarly contains a broad exemption for medical information. It exempts:
“[Any] record of an individual's medical, psychiatric or psychological history or disability status, including an evaluation, consultation, prescription, diagnosis or treatment; results of tests, including drug tests; enrollment in a health care program or program designed for participation by persons with disabilities, including vocation rehabilitation, workers’ compensation and unemployment compensation; or related information that would disclose individually identifiable health information.”
65 Pa. Stat. Ann. § 67.708(b)(5).
C.f. Uniontown Newspapers, Inc. v. Pa. Dep’t. of Corr., 151 A.3d 1196, 1208 (Pa. Cmmw. 2016) (approving the disclosure of “diagnosis data” pertaining to types of inmate illnesses that did not include individually identifiable information).
Partially within the scope of Exemption (A), which includes records identifiable to a patient; including but not limited to medical treatment and records relating to a doctor-patient relationship. R.I. Gen. Laws § 38-2-2(4)(i)(A). See also The Confidentiality of Health Care Information Act, R.I. Gen. Laws § 5-37.3-1 et seq., enacted in 1978, which generally bars providers of health care services from providing any information relating to a patient's medical history, diagnosis, condition, treatment, or evaluation to anyone other than the patient or an authorized representative without the written consent of the patient or an authorized representative. R.I. Gen. Laws § 5-37.3-4(a) (1999). A person violating this Act is subject to civil and criminal penalties, and may be fined up to $5,000, imprisoned up to six months, or both. R.I. Gen. Laws § 5-37.3-4(a)(2)-(4).
Information received by the state health agency's licensing division is public, but information identifying individual patients is confidential. S.C. Code Ann. § 44-7-315. Information regarding the operation of a public hospital, including its finances and governance, is subject to the Act. Medical peer review committee records are not included within the definition of records subject to the act. S.C. Code Ann. § 30-4-20(c).
Information obtained by department of health from hospitals is confidential (SDCL §34-12-17).
Generally closed. See T.C.A. § 68-11-304(c). See also T.C.A. § 68-11-210(a)(5)(C) (Joint Commission on Accreditation of Hospital's report concerning the accreditation of a hospital or nursing home is closed); T.C.A. § 68-29-107 (reports made by medical laboratories to the Commissioner of Health and Environment concerning infectious diseases are closed); T.C.A. § 68-30-111 (sources of body parts for transplantation are confidential); T.C.A. § 10-7-504(a)(1) (medical records of patients in state hospitals or medical facilities or receiving medical treatment at state expense are confidential). Konvalinka v. Chattanooga-Hamilton County Hospital Authority, 358 S.W. 3d. 213 (Tenn. Ct. App. 2010) (minutes of hospital’s Compliance Committee related to settlement with federal government on Medicare payments were public).
A hospital district's personnel records stating the name, height, weight, position, and salary of employees are not protected by common law privacy. Op. Tex. Att'y Gen. DM-081 (1994). The accounts receivable of a public hospital-including patient names, amount owed, and when an account became delinquent-are public. Tex. Att'y Gen. ORD-385 (1983).
Several types of health-related records are made confidential by other statutes and therefore are excepted from disclosure under Section 552.101. For example, diagnosis and treatment records, if prepared by or under the supervision of a physician, are confidential. Tex. Occ. Code. Tex. Gov’t Code § 159.002(b). Daily hospital logs that are not prepared by or under the supervision of a physician are not confidential. Tex. Att'y Gen. ORD-487 (1988). Additionally, emergency medical services' records are excepted from public disclosure if they are created under the delegated authority of a physician. Tex. Att'y Gen. ORD-578 (1990). The records of a "medical peer review committee" of a "healthcare entity" are confidential only when the committee actually evaluates the quality of medical care. Tex. Att'y Gen. ORD-595 (1991) (addressing the records of a "death review committee" of a state mental health and mental retardation residential facility); see also Tex. Att'y Gen. ORD-591 (1991) (stating that the meeting minutes of a hospital's "quality management committee" are confidential to encourage frank discussion). Information concerning specific people receiving government funded medical assistance is generally confidential. Tex. Hum. Res. Code. Tex. Gov’t Code §§ 12.003, 21.012; see also Tex. Att'y Gen. ORD-641 (1996) (stating that information collected under the Americans with Disabilities Act from an applicant or employee concerning that person's medical condition and medical history is confidential under Section 552.101). HIPAA does not preempt state TPIA. Abbott v. Tex. Dep’t. of Mental Health and Mental Retardation, 212 S.W.3d 648, 664-65 (Tex. App.—Austin 2006, no pet.) (governmental body must determine whether the TPIA compels disclosure or whether the information is excepted from disclosure under the TPIA).
Separate legislation governs the release of records from mental health facilities. Tex. Health & Safety Code § 576.005. Generally, reviews of medical files, correspondence between patients and their parents, correspondence from hospital staff to parents of patients, and notes of visits with parents of patients are excepted as highly intimate or embarrassing facts. Tex. Att'y Gen. ORD-163 (1977). Some detailed medical histories might be exempt in their entirety while other records might be public if the information identifying patients can be deleted. Id.
The Texas Board of Medical Examiner's licensing file on a particular doctor including the completed application is public. Tex. Att'y Gen. ORD-215 (1978). However, information in the file concerning an applicant's substance abuse, criminal history, or mental illness is subject to disclosure on a case by case basis. Id. Records of a Department of Health investigation of a home health services agency are confidential. Tex. Health & Safety Code § 142.009(d); see also Tex. Att'y Gen. ORD-603 (1992).
The Texas Department of Health Records concerning routine examinations of dairy and meat products are public. Tex. Att'y Gen. ORD-48 (1974). Official orders of county health departments concerning cafeterias are also public information. Tex. Att'y Gen. ORD-27 (1974). Generally, however, records of a county health department's investigation of food poisoning at a restaurant are confidential. Tex. Att'y Gen. ORD-577 (1990) (citing Tex. Health & Safety Code § 81.046(a)).
1. All certificates, applications, records, and reports that directly or indirectly identify a patient or former patient at Utah State Hospital and other mental institutions shall be kept confidential and may be disclosed only if: (a) “the individual identified or his legal guardian, if any, or, if a minor, his parent or legal guardian shall consent”; (b) disclosure is necessary to comply with other laws, including completion of information forms by a court clerk to be supplied to the Bureau of Criminal Identification; or (c) a court directs “upon its determination that disclosure is necessary for the conduct of the proceedings before it, and that failure to make the disclosure would be contrary to public interest.” Utah Code § 62A-15-643(1).
2. Records containing medical, psychiatric, or psychological data about an individual are generally controlled if properly classified as such. See id. § 63G-2-304(1).
3. Records containing an individual’s medical history, diagnosis, condition, treatment, etc. are classified as private. See id. § 63G-2-302(1)(b).
In Carter v. Univ. of Utah, No. 95-02 (Utah State Rec. Comm. April 21, 1995), the State Records Committee ordered the University of Utah Hospital to release private patient records to a hemodialysis nurse who was terminated from her position with the hospital. The nurse, who had commenced a grievance proceeding against the hospital for wrongful termination, sought access to portions of the records that related to her conduct as an employee. The Records Committee determined that, even though the records were classified properly as private, the interest in disclosure outweighed the interest favoring restriction of access and ordered the hospital to release the records with information on individual patients redacted.
4. Medical records in the possession of the University of Utah Hospital, its clinics, doctors, or affiliated entities are not private records or controlled records when the records are sought “(i) in connection with any legal or administrative proceeding in which the patient’s physical, mental, or emotional condition is an element of any claim or defense; or (ii) after a patient’s death, in any legal or administrative proceeding in which any party relies upon the condition as an element of the claim or defense.” Utah Code § 63G-2-302(3)(b).
5. Physicians’ abortion reports submitted to the Department of Health are “confidential and privileged.” Id. §§ 26-25-4, 76-7-313.
Information provided by hospitals in order to obtain a license to operate is not subject to disclosure. 18 V.S.A. § 1910. Records related to hospital budget reviews are available, provided that individual patients or health care practitioners shall not be directly or indirectly identifiable. 18 V.S.A. § 9457.
The public has limited access to documents related to disciplinary complaints against medical professionals. 26 V.S.A. § 1318. The public has access to a register of complaints, which includes summaries of the complaint and the investigation, but does not include the name of the medical professional. Id. § 1318(c)(1). Should the complaint result in disciplinary charges or a stipulation, then additional information about the medical professional and claimant will be released. Id. § 1318(B).
Generally, patients have the right to expect that all communications and records pertaining to his or her care shall be treated as confidential. “Only medical personnel, or individuals under the supervision of medical personnel, directly treating the patient, or those persons monitoring the quality of that treatment, or researching the effectiveness of that treatment, shall have access to the patient’s medical records.” 18 V.S.A. § 1852.
Hospitals have numerous data gathering and reporting obligations beyond the scope of this outline. It is best to search the Code for these provisions. Hospital authorities must report their activities annually to the mayor of the city they serve. These reports are not subject to any exclusion under the Act. Va. Code Ann. § 15.2-5318.
Patient records are excluded from required disclosure under Va. Code Ann. § 2.2-3705.5.1.
Records of the Public Hospital Commission are open to the public. RCW 70.44.050 (2000). A patient of a public hospital cannot be denied access to his or her own medical records. Oliver v. Harborview Med. Ctr., 94 Wn.2d 559, 618 P.2d 76 (1980).
"An individual's medical records are classically a private interest," Child Protection Group v. Cline, 350 S.E.2d at 545 (1986) and Exemption 2 of the FOIA specifically protects "[i]nformation of a personal nature such as that kept in a personal, medical or similar file, if the public disclosure thereof would constitute an unreasonable invasion of privacy, unless the public interest by clear and convincing evidence requires disclosure in the particular instance." The balancing test required by this exemption and Cline is discussed at length above. (W. Va. Code § 16-29-1 gives individuals the right of access to their own medical records).
An even broader exemption from disclosure is provided by W. Va. Code § 27-3-1 for records reflecting psychiatric treatment or evaluation of any individual:
Communications and information obtained in the course of treatment or evaluation of any client or patient are confidential information. Such confidential information includes the fact that a person is or has been a client or patient, information transmitted by a patient or client or family thereof for purposes relating to diagnosis or treatment, information transmitted by persons participating in the accomplishment of the objectives of diagnosis or treatment, all diagnoses or opinions formed regarding a client's or patient's physical, mental or emotional condition, any advice, instructions or prescriptions issued in the course of diagnosis or treatment, and any record or characterization of the matters hereinbefore described. It does not include information which does not identify a client or patient, information from which a person acquainted with a client or patient would not recognize such client or patient, and uncoded information from which there is no possible means to identify a client or patient.
West Virginia Code section 27-3-1 provides for disclosure of confidential information in five circumstances:
(1) in specified judicial proceedings, where an involuntary examination has been made pursuant to those proceedings, or where the court determines the information is sufficiently relevant to the proceeding to outweigh the importance of maintaining confidentiality;
(2) to professionals involved in treatment of the patient, for treatment or internal review purposes; or
(3) to protect against a clear and substantial danger of imminent injury by a patient or client to himself or another;
(4) To provide notice to the federal National Instant Criminal Background Check System, established pursuant to section 103(d) of the Brady Handgun Violence Prevention Act, 18 U.S.C. § 922;
(5) Without the patient's consent, as provided for under the Privacy Rule of the federal Health Insurance Portability and Accountability Act of 1996, 45 C.F.R. § 164.506, for thirty days from the date of admission to a mental health facility if:
(i) The provider makes a good faith effort to obtain consent from the patient or legal representative prior to disclosure;
(ii) the minimum information necessary is released for a specifically stated purpose; and
(iii) prompt notice of the disclosure, the recipient of the information and the purpose of the disclosure is given to the patient or legal representative.
W. Va. Code § 27-3-1. The Supreme Court of Appeals interpreted this statute in State v. Simmons, 173 W. Va. 590, 309 S.E.2d 89 (1983), but gave no indication as to whether its provisions would constitute a blanket exemption for psychiatric records in the custody of a public body. Although the court in Child Protection Group v. Cline did not mention this statutory provision, the court's treatment of such records suggests they would be subject to disclosure under the FOIA if the interests favoring access in a particular case outweighed the individual's right to privacy. Child Protection Group v. Cline, 177 W. Va. 29, 350 S.E.2d 541(1986).
Records concerning a public hospital institution, rather than individuals, normally will be subject to disclosure. Queen v. WVU Hospitals, 179 W. Va. 95, 365 S.E.2d 375 (1987). West Virginia Code section 16-5C-16 requires the state director of health to "make available for public inspection and at a nominal cost provide copies of all inspections and other reports of [nursing homes and personal care homes] filed with or issued by the director," without disclosing "confidential medical, social, personal or financial records of any patient." W. Va. Code § 16-5C-16. The Freedom of Information Act should provide similar access to inspection records of hospitals and other regulated facilities.
Information regarding state hospitals may be obtained from the individual facilities, or from the state director of health, to whom the superintendent of each facility is required to furnish "such information as he may have concerning admissions, discharges, deaths and other matters. the director of health, must he keep such records as are necessary to enable him to have current information concerning the extent of mental illness in the state. The names of individuals may not be made accessible to anyone except by permission of the director of health or by order of a judge of a court of record." W. Va. Code § 27-2-5.
Specific statutes control access to one additional category of hospital records. State law regulates health care peer review organizations, in which medical professionals evaluate the performance of their colleagues. Whenever a hospital's peer review committee finds a physician has performed incompetently, it is required to furnish its findings to the state Board of Medicine. W. Va. Code § 30-3C-3 makes such peer review records strictly confidential unless the person whose activities were reviewed consents to disclosure.
However, in Daily Gazette v. W. Va. Board of Medicine, 177 W. Va. 316, 352 S.E.2d 66 (1986), the state Supreme Court upheld the general validity of this provision. However, the court also ruled that if the West Virginia Board of Medicine makes a preliminary determination that probable cause exists to substantiate charges of disciplinary disqualification, all proceedings on such charges must be open to the public. Moreover, the public must be provided access to all peer reviews, other reports, records, and nondeliberative materials introduced at hearing on the charges.
In Thompson v. W. Va. Board of Osteopathy, 191 W. Va. 15442 S.E.2d 712 (1994), the court held that, even where the Board of Osteopathy Medicine did not find probable cause to pursue disciplinary action, the public had a right of access to the document setting forth the charges, and the findings of facts and conclusions of law supporting the dismissal of those charges.
Also deemed confidential and exempt from the West Virginia Freedom of Information Act are healthcare providers’ “[r]eports, recommendations or opinions, findings or advice received or made by the division for the purpose of determining whether a person is qualified to be licensed to drive.” W. Va. Code § 17B-3-13. These records “may only be admitted in proceedings to either suspend, revoke or impose limitations on the use of a driver's license . . . or to reinstate the driver's license.” Id.
“[A]ll information, records and reports received by or developed by a state or regional long-term care ombudsman which relate to a resident of a facility, including written material identifying a resident, are confidential and are not subject to the [West Virginia Freedom of Information Act], and shall not be disclosed or released by the long-term care ombudsman.” W. Va. Code § 16-5L-15(b). While information relating to investigations under the long-term care ombudsman program is confidential, there are four exceptions to this rule:
(1) Where disclosure is authorized in writing by the complainant, or resident or the guardian, committee, attorney in fact or representative of the resident;
(2) Where disclosure is necessary to the office of adult protective services of the department of health and human resources in order for such office to determine the appropriateness of initiating an investigation regarding potential abuse, neglect or emergency circumstances as defined in article six, chapter nine of this code;
(3) Where disclosure is necessary to the office of health facility licensure and certification of the department of health and human resources in order for such office to determine the appropriateness of initiating an investigation to determine facility compliance with applicable rules of licensure and/or certification; or
(4) Upon order of any appropriate county circuit court after the judge in term or vacation thereof has conducted a hearing following adequate notice to all parties and rendered a determination as the interests of justice may require.
Under the West Virginia Health Care Provider Professional Liability Insurance Availability Act, “[a]ny specific claim reserve information is exempt from public disclosure under the freedom of information act.” W. Va. Code § 29-12B-12.
Individual hospital and medical records are not subject to inspection. Wis. Stat. § 146.82. Ambulance records of treatment and condition of the patient are treated as health care records for this purpose, but other information is public. Wis. Stat. § 256.15(12). Data collected from such records, however, which is not identifiable by patient is subject to inspection. State ex rel. Dalton v. Mundy, 80 Wis. 2d 190, 257 N.W.2d 877 (1977).
There is an exemption for hospital records, including those relating to medical administration and "other medical information . . . whether of a general or specific classification." This exemption has been limited by the Wyoming Supreme Court to those records regarding medical treatment and that would constitute a clearly unwarranted invasion of privacy. See Houghton v. Franscell, 870 P.2d 1050.