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Open records law trumps HIPAA in records request case

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NEWS MEDIA UPDATE   ·   OHIO   ·   Freedom of Information   ·   March 24, 2006


Open records law trumps HIPAA in records request case

  • A federal law protecting the release of personal health information does not supersede the state’s open records law, the state Supreme Court ruled in ordering the release of records about elevated lead levels in children.

March 24, 2006  ·   The Ohio Supreme Court ordered the Cincinnati Health Department to release 343 lead-citation notices and lead-risk-assessment reports to The Cincinnati Enquirer, ruling March 17 that they cannot be shielded under a federal law protecting the release of personal health information.

The paper requested the information in 2004 under the state’s public records law, which the court ruled trumps the Health Insurance Portability and Accountability Act, or HIPAA, in part because the records do not contain “protected health information” as defined by the law.

The Enquirer sought health department citations issued when unhealthy lead levels are detected in the homes, schools and day care facilities of children diagnosed with elevated lead levels in their blood. Ohio law requires doctors to report high lead levels to the local health authority.

The Enquirer heard that the health department wasn’t very diligent in following up on citations,”said John Greiner, an attorney who represented the paper. An Enquirer reporter requested the citations from 1994 to 2004, but the Cincinnati Health Department said it was barred by HIPAA from releasing the information because the addresses on the reports could lead to children’s identities.

HIPAA prohibits doctors, nurses, health insurance companies and other health care professionals from releasing personal health information. It does not apply to records that are subject to state open records laws.

In ruling for the newspaper, the court unanimously found that HIPAA does not apply because the citations do not name the children and the records are considered public under the Ohio open records law. The records law has an exemption for medical information, but the exemption is limited to medical information that is generated in the course of medical treatment, Greiner said.

The high court’s ruling said that the records do not contain “protected health information” as defined by HIPAA, and that even if they were not protected they would be subject to disclosure under an exception to HIPAA.

“Ohio Public Records Law requires disclosure of these reports and HIPAA does not supersede state disclosure requirements,” Judge Terrence O’Donnell wrote.

Greiner said the ruling is a first. “The fact that a Supreme Court has looked at that issue and decided it in favor of the state open records law . . . it would be a persuasive precedent.”

Although the issue is narrow, “it has the potential of curtailing what has become a grilling problem and that is government agencies using HIPAA to deny access to information,” said Tim Smith, founder and director of the Ohio Center for Privacy and the First Amendment. Although the decision is narrow, the ruling came down strongly on the side of disclosure in an interpretation that could have gone the other way, he said.

The distinction the ruling made between private medical records and public health information is important, said Frank Deaner, executive director of the Ohio News Association and president of the Ohio Coalition for Open Government.

“The most significant boundary that comes through is where a record starts becoming private because it gets into an individual’s medical record,” Deaner said. “This case makes it clear that the information that was sought regarding the dwellings by address and the fact that that information is public, that’s where the significance is.”

An important distinction is that the information in the records sought dealt with information regarding dwellings and addresses, and “it does not alter whether someone is entitled to an individual’s medical information,” Deaner said.

(State ex rel. Cincinnati Enquirer v. Daniels, Media Counsel: John Greiner, Graydon Head & Ritchey LLP, Cincinnati)KV


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