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Editorials represent the institutional view of the newspaper. They are written and edited by the editorial staff, which operates separately from the news department. Editorial writers are not involved in newsroom operations.

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Editorial: Find a way to ensure names of deceased SC inmates are public

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The S.C. Department of Corrections has stopped releasing the names of inmates who die in prison over concerns that doing so violates a federal health privacy law. Andrew Whitaker/Staff

The S.C. Corrections Department says it intends to release the name of any prisoner who is executed whenever South Carolina gets back into the execution business. That's the good news. The bad news is that it's not releasing the names of any other prisoners who die in state custody unless or until Attorney General Alan Wilson says it may. 

The new prison policy came to light earlier this month, when a man who had been sentenced to 421 years in prison in 2006 for kidnapping a 14-year-old girl, repeatedly raping her and holding her hostage inside an explosive-laden underground bunker died in state prison.

It was a notorious crime that inspired a Lifetime TV movie, and his passing is something our government should tell us about automatically. But the news coverage about Vinson Filyaw’s death was based on anonymous sources, because the Corrections Department said only the coroner could provide the name of the prisoner who was found dead in his cell, and McCormick County Coroner Faye Puckett refused to do so. 

There is no justification for the coroner’s behavior, and voters should let her know that if and when she runs for reelection. But Columbia’s State newspaper reports that the Corrections Department had instituted a new policy in January against identifying dead inmates, based on concerns that doing so might be illegal.

The first thing that needs to be said is that any law that would restrict what a prison can tell the public about inmate deaths is a law that needs changing. We ought to know pretty much everything that is knowable when someone dies in state custody, partly so we can hold prison officials accountable if they contributed to that death. 

The law in question is the federal health privacy law known as HIPAA, which serves a useful purpose but also has put ridiculous amounts of information out of public reach, and has created an industry of litigation over what sort of information it does and doesn’t allow governments, businesses and nonprofits to release or request.

The second thing that needs to be said concerns that “might be illegal” part. Corrections spokeswoman Chrysti Shain tells us that prison medical officials raised concerns in January, based on changes to the ever-changing HIPAA rules and their new realization that the agency was releasing the names of dead prisoners. So the agency asked a HIPAA expert for a legal opinion. When that opinion came back inconclusive, the agency requested what it assumed would be a quick-turnaround opinion from Mr. Wilson's office — and stopped releasing the names of dead prisoners while it awaited that opinion.

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Corrections Director Bryan Stirling said he wants to release the names but felt like he needed to stop until he gets the legal all-clear. The elaborate procedure his agency has devised to get the information to the public seems to confirm his desire: Ms. Shain asks the coroner in the county where an inmate dies to release the name — since coroners aren’t considered health care providers and a prison spokeswoman … might be.

Usually coroners cooperate, and an agency news release announces the death and quotes the coroner identifying the deceased. In fact, no one seemed to notice the January change until Mr. Filyaw's death this month, because either coroners cooperated or the names of the deceased weren't the newsworthy information — for instance in the case of COVID deaths.

While we respect Mr. Stirling’s desire to be careful, we believe he should have maintained the old policy unless the attorney general told him that federal law prohibited that. In fact, all government officials should err on the side of releasing too much information — particularly when it's information about how the government exercises its police powers.

Frankly, an attorney general's opinion should have been the first thing the Corrections Department requested once the question arose. One of the attorney general’s most important jobs, after all, is to provide just this sort of legal advice to government agencies.

Mr. Wilson’s office says it’s been busy producing other opinions and that this one is more complicated than it looks but that it hopes to have it finished this week. We wish it could have been produced sooner; perhaps it would have been prioritized if the request had made it clear that Corrections was withholding names until it got an opinion — as it should have.

But what’s most important now is to get some clarity on the question. And if the opinion is that releasing the names of deceased inmates does indeed violate the federal privacy law, Mr. Wilson needs to help Corrections devise a way around that problem. If nothing else, the Legislature should require coroners to release the names.

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