Friday, August 27, 2004

Ky. police told it's legal to name injured

By Jim Hannah
Enquirer staff writer

COVINGTON - The Kentucky attorney general has ruled that a far-reaching federal medical privacy law does not give police the legal authority to withhold from reports the names of people injured in accidents.

The decision means the public will have access to information that police departments in two of Northern Kentucky's largest cities - Covington and Newport - have declined to release under the Federal Health Insurance Portability and Accountability Act, known as HIPAA.

Media law experts across the country say public agencies, such as police departments, have incorrectly interpreted HIPAA to withhold information long considered public.

"The public is suffering around the country because city attorneys have looked at the statute and said, 'We must be cautious,'" said Lucy Dalglish, executive director of The Reporters Committee for Freedom of the Press, a nonprofit organization dedicated to providing free legal assistance to journalists.

"Police departments are terrified they will be subject to HIPAA and its sanctions," Dalglish said.

Dalglish said the committee has appealed to the U.S. Department of Health and Human Services, which is in charge of administering HIPAA, to issue direct orders to the nation's police that HIPAA doesn't apply to them.

Greg Stumbo of Kentucky is only the second state attorney general to release an opinion on HIPAA, Dalglish said.

The Texas attorney general ruled in February that the state's public information law takes precedence over HIPAA.

In an 11-page opinion released Wednesday, Stumbo wrote that disclosure of the identities of the injured people provides opportunity for public review of the manner in which the police carry out the public business of law enforcement and crime investigation.

He wrote that his office has consistently recognized that a public agency cannot adopt a policy of blanket nondisclosure of records revealing victims' identities.

The Enquirer sought the opinion in June after Covington police adopted a policy in May 2003 of not releasing the names of injured people. On several occasions, police also did not release the names of people who were fatally shot.

"The attorney general got it precisely right on the conclusion that (HIPAA) does not impose a barrier to the average citizen's right and ability to discover how well the public is being served by our local police departments," said Paul Alley, the Enquirer's First Amendment lawyer.

Media law attorney Jon Fleisch-aker, who operates a Freedom of Information Hot Line for Kentucky Press Association members, said the attorney general's opinion will prevent other departments from across the state from hiding behind HIPAA to deny information. He said the opinion carries the weight of law if it isn't appealed.

When informed Thursday of the opinion, Newport officials said they would immediately reevaluate their open records policy.

Covington City Solicitor Jay Fossett said the city would try to comply with the attorney general's opinion as it evaluates whether to appeal the decision.

"Again, this is all about protecting the city from liability," he said. "We are not trying to hide anything."


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