Medical privacy, or public records?

Charleston at War: Union troops set sights on Morris Is.

This mural depicts the 54th Massachusetts regiment during the attack on Battery Wagner on July 18, 1863. The 54th, a regiment of free black soldiers, led the assault on the Confederate's well-defended fort, losing their white commander, Col. Robert Gould Shaw, early in the fighting.

What do pension records, EMS response time data and coroners' reports have in common?

At some point, South Carolina officials considered all three to be medical records.

The Health Insurance Portability and Accountability Act, or HIPAA, is the federal medical privacy law that prevents the release of confidential patient information.

Officials across the state wrongly have cited it in denying public records requests for key nonmedical data, government transparency advocates said.

"People who have no relationship to health care make up the excuse that HIPAA exempts them from providing documents," said Jay Bender, an attorney for the S.C. Press Association. "They have not read it (the law). They don't understand it. But they say it applies."

Without those records, the public cannot independently evaluate government performance or uncover abuses, Bender said.

He pointed to a case now in litigation that involves the Sumter County coroner, who in July cited HIPAA in refusing to release an autopsy report to a local newspaper. The paper wanted details of the death of a 25-year-old killed by a police officer in 2010.

"It's part of a culture that people in power don't think they have an obligation to share information with the rest of us," Bender said.

A hearing in that case is scheduled for next month.

In a similar situation, the Beaufort County Coroner's Office declined in October to release the autopsy report for Thomas Bardin Jr., the former Legislative Audit Council director.

Bill Rogers, S.C. Press Association executive director, said officials should know such documents "are not medical records."

"If you've got a coroner for your health care provider, you're in deep trouble."

Last month, an attorney for the Budget and Control Board, which oversees the S.C. Retirement Systems, cited HIPAA as a reason for creating a law in 2008 that closed public access to government retiree pension records. The withheld information denies the public the ability to see if any abuses exist, possibly ones that drive up costs in a system struggling to close a $13 billion shortfall.

David Avant, the state attorney, said that "even if HIPAA didn't specifically apply, we still have lots of confidential medical records," including disability and health benefits.

Bender and Rogers dismissed that argument.

"If someone is getting a disability payment, I'm not sure how that's a medical record," Bender told The Post and Courier at the time.

Other HIPAA abuses date to 2010, when EMS departments in Beaufort County and in Columbia denied response time data and other records related to paramedics' handling of cases. At the time, two newspapers sought details surrounding the treatment of a severely beaten man and a sick 3-year-old boy. The papers sought no records that would identify patients.

In denying the records requests, officials cited a 2004 state law that kept secret all EMS records. Before the law was passed, state health officials said it was needed to bring the state "into compliance with" HIPAA.

In fact, the measure was unnecessary. The state repealed the law less than a year after The Hilton Head Island Packet exposed it in 2009.


This week, The Post and Courier explains why state Freedom of Information laws are important to you.

Sunday: Who is ignoring and blatantly violating sunshine laws, and why you should care.

Monday: How technology enables government agencies to provide records but avoid providing them as well.

TODAY: How federal medical records laws are used as an excuse to hide state records.

Wednesday: S.C. State University continues keeping secrets when transparency is needed.

Thursday: The legal battle over school superintendent evaluations.

Friday: The education of police departments on what the public has a right to know.

Saturday: What happens when residents request public records.

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