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Open records law allows release despite HIPAA

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NEWS MEDIA UPDATE   ·   TEXAS   ·   Freedom of Information   ·   June 21, 2006

NEWS MEDIA UPDATE   ·   TEXAS   ·   Freedom of Information   ·   June 21, 2006

Open records law allows release despite HIPAA

  • The state open records law trumps a federal health privacy law in requiring the release of sexual assault statistics, a state appeals court ruled.

June 21, 2006  ·   A federal health information privacy law does not pre-empt the Texas open records law, a state appellate court ruled Friday in ordering the release of statistics about alleged sexual assaults at state mental hospitals.

A four-judge panel of the Texas Court of Appeals in Austin rejected arguments for keeping the statistics secret, reversing a lower court and upholding an attorney general’s ruling that the information is public.

The ruling means that state government officials cannot withhold information under the Health Insurance Portability and Accountability Act (HIPAA) when the Texas Public Information Act allows its release.

“This opinion gives important guidance to every Texas governmental body that is faced with a public information request for medical information where HIPAA applies,” said Texas attorney general spokesman Tom Kelley.

The attorney general’s office first ruled that the then Department of Mental Health and Mental Retardation must release to Joe Ellis, an investigative producer at Dallas-based KDFW TV, statistics on alleged sexual assault and abuse incidents at state mental hospitals, subsequent investigations, the names of the facilities where the incidents occurred, and the outcome of any investigations.

The attorney general, in response to an inquiry from the department, concluded that the information had to be released because the HIPAA privacy rule allows disclosure of health information if it is “required by law.” In this case it was under the state public records law, the attorney general said. Travis County District Court Judge Patrick Keel sided with the department.

But the four-judge appellate panel rejected the department’s argument that the records law is not included in the “required by law” exception to nondisclosure in the HIPAA rules because the commentary on the rules did not list specifically list open records laws as laws requiring disclosure.

Justice David Puryear wrote for the court that “nothing in the definition of ‘public information’ expressly exempts health information” from the open records law and that “the commentary merely provides a range of possible areas of law that might require disclosure.”

Puryear noted the commentary also makes clear in a federal Freedom of Information Act request, agencies should look to that law’s exemptions — not to HIPAA’s — to decide if the information should be released.

The court also rejected the department’s argument that although the information requested was not explicitly deemed confidential under HIPAA’s rules, it should be considered confidential because HIPAA does not provide for its disclosure.

“We cannot adopt this circular logic,” Puryear wrote. “Our construction of the statutes properly balances the need for privacy under HIPAA … and the need for disclosure under the Public Information Act and correctly reconciles these two statutes.”

Ellis said he requested the statistics in 2003 after learning that a female patient in one of the state’s institutions had become pregnant. “I’ve just been trying to get the depth of what they already knew as to how much abuse was going on in their facilities around the state,” he said, noting that the state already had the statistics.

Emily Palmer, spokeswoman for the Texas State Health Services, said the office was still reviewing the ruling and had not yet decided whether to appeal.

(Abbott v. Texas Department of Mental Health and Mental Retardation)HB

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