AG: 911 call information is not public record
Published: March 18, 2013
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ST. THOMAS - The territory's attorney general is firmly opposing the public release of 911 call records with a legal opinion that has drawn sharp criticism from one of the country's leading media-rights organizations.
The opinion was prompted by a November request by The Daily News to the V.I. Territorial Emergency Management Agency seeking access to information from 911 calls in which ambulances were dispatched, including:
- The time of the call to dispatch the ambulance.
- The nature of the call.
- The location of the emergency.
- The names of the EMT personnel dispatched.
- The time the ambulance reached its destination.
- The time the ambulance left the emergency site.
VITEMA Director Elton Lewis referred the public information request to V.I. Attorney General Vincent Frazer for an opinion.
Frazer's opinion, issued March 1, frames Lewis' request as a question about whether The Daily News is entitled to obtain the information from VITEMA.
Frazer's opinion begins with a one-word answer: "No."
Frazer discusses a number of justifications for his position, including:
- The requested records are exempt from disclosure under a section of the territory's open records law protecting "hospital records and medical records of the condition, diagnosis, care or treatment of a patient or former patient, including outpatients."
- The several individual pieces of information included in the request could, "directly or indirectly," lead to the identification of a person requiring medical treatment.
- The federal Health Insurance Portability and Accountability Act, known as HIPPA, protects certain "health information," including "health status, provision of health care or payment for such care," from public disclosure.
"In conclusion, it is our advice to you that if the information sought by the public or the media from VITEMA would lead to discovery of the identity of a person who has received health care from a care giver, which information would compromise the recipient's privacy rights, then that information should not be examined or copied," Frazer wrote. "Further, if VITEMA is not the lawful custodian of the records sought, there is no obligation to divulge the public records to the public or the media. Ultimately, if after careful consideration, VITEMA reasonably concludes the disclosure of its records will lead to disclosure of private health care information, such disclosure is clearly not in the public interest and release of such information would substantially and irreparably cause harm or injury to any person, VITEMA should not permit the examination and copying of the records."
Frazer did not respond to requests for comment for this story.
VITEMA, which is funded entirely by local and federal tax money, according to its Fiscal Year 2013 post-audit analysis, relied on this opinion to deny The Daily News' request.
"Based on the legal opinion received by VITEMA today, it has been determined that granting the Daily News' request would infringe on patient privacy laws," VITEMA spokeswoman Christine Lett wrote in a letter to The Daily News.
State laws across the country vary widely with respect to public access to 911 records, according to a database of open records laws maintained by the Reporters Committee for Freedom of the Press.
For instance, in states such as Alabama and South Dakota, an audio recording of a 911 telephone call may not be released to the public without a finding that the right of the public to access the recording outweighs the privacy interests of the individuals involved in the 911 call, according to the database.
Arizona, on the other hand, inverts that burden, making tapes of 911 calls available to the public unless the government puts forward an interest that justifies preventing access.
Other states, including Georgia, Idaho, Mississippi, North Carolina and Texas, make no special exceptions for 911 calls, meaning tapes of the calls are subject to the same release provisions as any other public records, according to the database.
Other laws, such as those in the Virgin Islands, do not specifically address the issue.
Response to opinion
Aaron Mackey, a staff attorney with the Reporters Committee for Freedom of the Press, said he noted "a couple of issues" after reviewing Frazer's opinion.
First, he questioned whether 911 call records are actually covered by the "hospital records and medical records" exemption in the V.I. Code.
Mackey said the information requested - including details about the time and location of a call - would seem to fall outside of anything that could be considered a hospital or medical record, though it would be difficult to say definitively without supporting case law from the territory's courts.
"There is a question there as to whether this would apply to restrict access to that kind of information," Mackey said.
He also said that even if certain parts of 911 records do qualify as medical records, it should be incumbent upon the agency to redact the protected information from the otherwise public record and release the rest of the information, as opposed to restricting access to the entire record.
"The information that would implicate that exemption could be redacted or withheld, but that would not serve as a reason for withholding the entire record. Obviously there is still some information that could be released," Mackey said.
Mackey said this issue is actually an overall weakness in the territory's open records law, which does not specifically address the issue of redaction. The federal Freedom of Information Act and most states have laws making it incumbent upon a public agency to redact protected information and release the rest of the information, Mackey said.
"It's really a weakness in the statute itself," he said.
He also questioned Frazer's reliance upon HIPPA.
"One of my big criticisms of this opinion is that there is nothing in here talking specifically about HIPPA and does it actually apply," Mackey said.
Mackey said HIPPA contains a two-prong test for its privacy restrictions to apply.
First, the agency itself must be subject to HIPPA, and second, the information in question must be of a nature that could personally identify someone.
Mackey pointed out that there is no language in Frazer's opinion arguing that either of these is the case for the records created or maintained by VITEMA, nor is there reference to any specific section of HIPPA that might protect the information in question.
"This is what's frustrating about reading the AG's opinion here," he said. "None of this is really articulated. Even if HIPPA were to apply, they could redact the data to de-identify the caller. But that's not really addressed in this opinion at all."
He said Frazer's opinion highlights a flaw in taking categorical approaches to public-records exemptions.
"In a lot of states, exemptions to public records laws are treated narrowly, not broadly," Mackey said. "Here you have an attorney general creating a very broad reading of what can be withheld."
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