Society of Professional Journalists FOI Alert: August 16, 2002
New Federal Medical Privacy Rules Will Make Journalists¹ Job Harder

Contact:
Ian Marquand, SPJ Freedom of Information Committee co-chairman, ian@kpax.com
or 406/542-4449

Journalists who cover accidents and other incidents in which people require
medical care will have a harder time determining the number and nature of
injuries, or even if someone has been admitted to a hospital, because of new
federal rules on the privacy of health-care information.

Specific information on patient injuries, illnesses and conditions
may no longer be available. In fact, the new rules will make it harder
merely to confirm that a person is in the hospital.

The Bush administration recently released the latest version of
medical privacy rules, which are intended to give people more control over
their health and medical information. In most cases, the rules will take
effect April 14, 2003.

Medical privacy rules were required by the federal Health Insurance
Portability and Accountability Act of 1996 (HIPAA). The Clinton
administration issued an initial version in 2000. The Bush administration
chose to re-visit the rules in 2001 following complaints from various
lobbying interests. During both rounds of rulemakings, the Society of
Professional Journalists, other journalism organizations and other groups
interested in freedom of information submitted comments.

In most situations, the new rules prohibit hospitals and other health
providers from releasing information on patients without prior permission.
The rules also have severe penalties for unauthorized releases.

The rules allow some information called ³limited data sets²
(patients¹ birth dates, admission and discharge dates, and geographic
addresses larger than street addresses) to be given to research and public
health entities, but specifically not to journalists.

So, journalists now may have a hard time merely confirming that
someone is in a hospital. The new rules allow a health facility to confirm
that an individual is in the hospital, and get information on the person¹s
general condition, by checking its patient directory, but the journalist
must have the name -- something that may be difficult in a breaking public
health emergency or other crisis.

Even that may not be enough, however, since the rules also allow
patients to keep their names off the publicly available directory.

Says Amy Henson of SPJ¹s First Amendment law firm, Baker & Hostetler,
³We wish we could report otherwise, but it appears that the new rules will
make the job of journalists in reporting important public-health information
much more difficult.²

SPJ President Al Cross, who began his journalism career reporting
hospital admissions and other news for his hometown radio station in
Southern Kentucky, called the new rules outrageous. ³This will have a broad
impact on day-to-day journalism in this country, and I hope journalists will
point out to their elected representatives the problems that this will cause
for news outlets large and small,² said Cross, political writer and
columnist for The (Louisville) Courier-Journal.

----- SPJ FOI ALERT VOL. 7; NO. 7 -----

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The Society of Professional Journalists works to improve and protect
journalism. The organization is the nation¹s largest and most broad-based
journalism organization, dedicated to encouraging the free practice of
journalism and stimulating high standards of ethical behavior. Founded in
1909 as Sigma Delta Chi, SPJ promotes the free flow of information vital to
a well-informed citizenry; works to inspire and educate the next generation
of journalists; and protects First Amendment guarantees of freedom of speech
and press.

Hawaii gets a D+ for its Freedom of Information Law

From the Better Government Association

The FOI Report Card

To study the relative strengths of the FOI laws, the BGA created a "gold standard" against which the laws of each state could be objectively and accurately measured. This gold standard was then developed into a simple, understandable report card, grading the each state’s performance on a four-point (4.0) scale.

The criteria that the BGA uses are based on the existing "best practices" in states across the country. In other words, we know that each criterion is obtainable because it is already law in at least one state. The criteria are derived from state statutes or the law as it is written, because it was too burdensome to measure how the law is actually implemented in each state or how state courts have reshaped the FOI laws in each state.

The FOI Report Card measures the five criteria on a scale from zero to five, with zero being the lowest and five being the highest possible scores. The criteria were broken into two categories – three procedural criteria and two penalty criteria.

The procedural criteria measure (1) the amount of time a public agency or department has to respond to a citizen’s request for a public document; (2) the process a citizen must go through to appeal the decision of an agency to deny the request for the public record; and (3) whether an appeal is expedited when it reaches the court system.

The penalty criteria weigh (1) whether the complaining party, upon receiving a favorable judgment in court, is awarded attorney fees and costs; and (2) whether the agency that has wrongfully withheld a record is subject to any civil or criminal punishment.

Analysis/Ranking

The grading scale the BGA chose to use is based on the standard "four-point" university grading scale. Grades are awarded based on the number of points that a state earns in any given category. Those points are multiplied by .08 to put them on a four point scale. The final "GPA" is derived by adding the weighted average grades and dividing by the total possible credits (16).

Sample Report Card

Illinois

Credit

Points GPA Grade Value

Response Time: 5pts 4.0 A 4

Appeals: 3pts 2.4 D 2

Expediency: 2pts 1.6 F 2

Fees and Costs: 1pts 0.8 F 4

Penalties: 0pts 0.0 F 4

Total 11pts

State Grade Point Average: 1.7 Final Grade: C-

Measuring the Grade Point Average

A = 4.00 B+ = 3.33 B- = 2.7 C = 2.00 D+ = 1.33 D- = .7

A- = 3.7 B = 3.00 C+ = 2.33 C- = 1.7 D = 1.00 F = .69-0

How to use this analysis

The BGA believes that this analysis will best serve the public and the media as a starting point rather than an end. It shows much of the depth and breadth of the problem and where the laws are weakest. We even propose a "gold standard" by which we every state can improve the strength of their FOI laws.

The scores and the data themselves are most useful in assessing the relative performance each state, breaking them into rough quintiles rather than focusing on the specific scores.

This analysis does not measure culture, enforcement or the various myriad exceptions in each state. Each of these factors can have an enormous impact on the actual practice of the laws but is unmeasurable without a much larger, prohibitively expensive study.

FOIA Study grading scale

1. Initial Response Time

0 points: There is no statutory provision for response time

1 point: ‘Reasonable Time’

2 points: 24-30 Days

3 points: 16-23 Days

4 points: 8-15 Days

5 points: 1-7

2. Appeals Process

0 points: There is no statutory provision for appeal process

1 point: Petitioner may appeal directly to district court

2 points: Petitioner must appeal to the head of the agency, then petitioner must appeal ombudsman and then petitioner may appeal to the district court

3 points: Petitioner must appeal to a designated entity as provided by statute, either the head of the agency or an ombudsman, then petitioner may appeal to the district court

4 points: Petitioner must appeal first to entity of their choice, either the head of the agency or an ombudsman, then the petitioner may appeal to the district court

5 points: Petitioner may appeal to the head of the agency and/or an ombudsman or the district court

3. Expediency in Court

0 points: There is no statutory provision for expediency

1 point: The petitioner must make a motion showing special circumstances for the appeal to be expedited

2 points: "As soon as practicable"

3 points: The appeal must be expedited and heard within 21-30 days

4 points: The appeal must be expedited and heard within 11-20 days

5 points: The appeal must be expedited and heard within 1-10 days

4. Attorney’s Fees and Costs

0 points: There is no statutory provision for attorney’s fees and costs

1 point: Attorney’s fees and costs will only be awarded if the denial was arbitrary and capricious

2 points: May be awarded if the petitioner prevails, but it is at the court’s discretion

3 points: May be awarded if the petitioner prevails or substantially prevails,

but it is at the court’s discretion

4 points: Shall be awarded if the petitioner prevails

5 points: Shall be awarded of the petitioner prevails or substantially prevails

5. Penalties

0 points: There is no statutory provision for penalties

1 point: A violator is subject to either criminal or civil penalties, but not both

2 points: A violator may be subject to both criminal or civil penalties

3 points: A violator is subject to either criminal or civil penalties, and those penalties increase with multiple violations

4 points: A violator may be subject to both criminal and civil penalties, and those penalties increase with multiple violations

5 points: A statute includes a variation of penalties which includes possible termination of an employee that violates the statute

Freedom of Information Issues 2002

A number of bills dealing with freedom of information have been sent by the state Senate to the House, where they died in the Judiciary Committee:

• SB 2445, S.D. 1: Permits government meetings to be held by teleconferencing. Currently, meetings are permitted by videoconferencing. But the Senate Committee on Government Operations said: "This measure recognizes that board meetings are often more conveniently held by teleconferencing than videoconferencing because of the general unavailability of specialized video equipment.
• SB 2545, S.D. 2: Sets up a commission to study where the Office of Information Practices should be placed administratively. The commission would also make recommendations to the Legislature on changes to the Uniform Information Practices Act; study issues raised by technology; and solicit comment on information practices.
• SB 2550, S.D. 1: Caps copying fees at 25 cents per page.
• SB 2633, S.D. 1: Establishes juror privacy by limits information disclosable to the public on juror qualification forms.

Hawaii SPJ