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Oklahoma City police officials last week trotted out vague references to HIPAA, Oklahoma's mental health statutes, and federal regulations protecting alcohol and drug abuse patient records as excuses for not telling the public which officer fired his gun near a school while reportedly acting strangely at his home.
Those laws don't prohibit police officials from fully disclosing in the incident report the officer's name as well as the exact location and other details of what happened Sept. 27 near Santa Fe Elementary.
Concealing the information didn't stop The Oklahoman's reporter Bryan Dean from learning the name of the officer: Sgt. Chris Suriano.
Or keep Dean from learning Suriano's home address and speaking with neighbors who fear a cover-up and with school district officials who gave a markedly different account of the incident than provided by police.
But it has upset nearby residents who have children attending the school, Dean reported today.
"We can handle the truth a lot better than we can handle lies," neighbor Elvis Humphrey told Dean.
Police spokesman Capt. Dexter Nelson had said just days after the incident that the officer fired at least one gunshot into the floor of his home.
But a Moore School District official says the shots were fired outside the house about 2:45 p.m. that Thursday.
"There was a report of a man in a neighborhood that is just west of Santa Fe who had gone out on his front porch and shot off his gun a few times," the school district official told Dean. "Then he went back in his house, and a little later he did it again."
The elementary school and Highland West Junior High School were locked down about 30 minutes, the school district official said.
Dean reported that a heavily redacted police report mentions nothing about gunshots.
Nelson told Dean, last year's president of FOI Oklahoma Inc., that the report was redacted "according to Oklahoma State Mental Health Law Title 43A,
Federal Regulation 42 CFR Part-2 (Public Health), HIPAA regulations, and other city and departmental policies."
Simply citing Title 43A, which contains the state's mental health statutes, is a sure sign that city officials know these laws don't restrict the information placed in police incident reports. Otherwise, the officials would have cited the specific statutory provision that does so.
The same is true of simply citing Federal Regulation 42 CFR Part-2 (Public Health), which protects the confidentiality of patient records in alcohol and drug abuse programs receiving federal funds. Nothing indicates that these regulations restrict the information that local law enforcement agencies place in their incident reports.
Claiming that the federal Health Insurance Portability and Accountability Act applies to police reports is absolute nonsense. The federal Department of Health and Human Services has clarified that police records aren't subject to HIPAA. Other legal authorities have long come to the same conclusion.
For example, Kentucky's attorney general in 2004 said HIPAA doesn't govern police reports, reasoning:
Because the Privacy Rule only applies to covered entities, a public agency to which a records request has been submitted must first determine if it qualifies as a health plan, a health care clearinghouse, or a health care provider which transmits any health information in electronic form in connection with a transaction covered by the Rule.
Only if the agency resolves this issue affirmatively must it proceed to a determination of whether the requested records contain protected health information that is subject to the Privacy Rule.
The Covington Police Department is neither a health plan, a health clearinghouse, nor a health care provider that transmits health information in electronic form in connection with a transaction that is subject to the Privacy Rule.
Records generated by police officers do not contain protected health information, even if those records reflect the officer's observations of an individual's medical condition, and such records are not governed by the Privacy Rule. The incidental delivery of emergency aid by a police officer does not transform the police officer into a health care provider since his primary function is the protection of public safety. Simply stated, HIPAA has no application to records generated by a police department in discharging its duty to protect public safety.
(Op. Att’y Gen. Ky. 2004-ORD-143, p. 6 (Aug. 24, 2004) (Open Records Decision))
Likewise, Texas' attorney general in 2004 said:
A police department is not a covered entity. ... In particular, it is not a covered health care provider because it is not a provider of [health] services ... or an entity that furnishes, bills, or is paid for health care in the normal course of business. ... Thus, a record created by a police officer, including a record that documents an officer's observation of the medical condition of an individual, cannot be protected health information subject to the Privacy Rule. Nor is health information the police department obtains through a Privacy Rule exception from a covered entity, such as a hospital, subject to the Privacy Rule. (Op. Att'y Gen. Tex. ORD-681 (Feb. 13, 2004))
Yet eight years later, Oklahoma City officials are claiming that HIPAA requires them to redact information from police reports.
Police Chief Bill Citty told The Oklahoman there is no effort to keep information from the public.
How can he say that?
Folks living in Suriano's neighborhood don't seem to believe him.
"The police are acting like it's no big deal," Sheryl Humphrey told the newspaper. "He was endangering a whole school full of elementary kids. It just makes it look like they are covering this up. If this was us, our address would have been put out there. Our names would have been released."
She is right. The name of anyone, but especially a police officer, who fires a gun near an elementary school should be in the incident report provided to the public.
(To read the earlier posting: OKC police refuse to identify officer who fired gun in his home, taken to hospital for mental health check)
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
Last week's meeting agenda for the state Board of Education omitted the item of business that would be discussed in executive session.
That omission violates not only the wording of the Open Meeting Act but also conflicts with previous attorney general opinions and pronouncements by the current AG for the past year.
It also robbed Oklahomans of their right to know what public business the board would be discussing behind closed doors.
The Open Meeting Act permits public bodies to conduct executive sessions to discuss
confidential communications between a public body and its attorney concerning a pending investigation, claim, or action if the public body, with the advice of its attorney, determines that disclosure will seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest. (OKLA. STAT. tit. 25, § 307(B)(4))
Similar wording can be found in the provision allowing executive sessions to discuss "matters pertaining to economic development ... if public disclosure of the matter discussed would interfere with the development of products or services or if public disclosure would violate the confidentiality of the business." (§ 307(C)(10))
"A vote to enter into executive session pursuant to [that provision] must also be an affirmation the public body has determined the executive session is necessary because 'public disclosure of the matter discussed would interfere with the development of products or services' OR 'public disclosure would violate the confidentiality of the business,'" Attorney General Scott Pruitt said in a formal opinion in November. (2011 OK AG 22, ¶ 5)
The vote to enter an executive session under the attorney-client privilege would require the same kind of public affirmation that a public discussion would "seriously impair the ability of the public body to process the claim or conduct a pending investigation, litigation, or proceeding in the public interest."
However, the state education board had no such discussion. Instead, the board simply voted to go into executive session. (Listen to the Sept. 27 audio starting at the 1:21.00 mark.)
The Open Meeting Act also states, "If a public body proposes to conduct an executive session, the agenda shall:
Contain sufficient information for the public to ascertain that an executive session will be proposed;
Identify the items of business and purposes of the executive session; and
State specifically the provision of Section 307 of this title authorizing the executive session." (OKLA. STAT. tit. 25, § 311(B)(2)(a-c))
Unless those notice provisions "are strictly complied with," the Open Meeting Act prohibits public bodies from going into an executive session. (§ 307(E))
But the state Board of Education didn't list the specific investigation, claim or action to be discussed.
Instead, its agenda listed only the specific statutory authorization for the proposed executive session, stating under "Legal Services":
Discussion and possible action to Convene into Executive Session to discuss a pending investigation, claim, or action pursuant to 25 O. S. Section 307(B)(4)
(a) Convene into Executive Session
(b) Return to Open Session
(c) Possible action
The board took no action when it returned to open session.
In a 1998 written opinion, then-Attorney General Drew Edmondson emphasized that the statute says, "All agendas required pursuant to the provisions of this section shall identify all items of business to be transacted by a public body at a meeting, including, but not limited to, any proposed executive session for the purpose of engaging in deliberations or rendering a final or intermediate decision in an individual proceeding prescribed by the Administrative Procedures Act." (1997 OK AG 61, ¶ 2)
The bold italics were Edmondson's.
"Whether a matter pertains specifically to an executive session or not, the Oklahoma Supreme Court has stated that the Act requires that agendas must be worded in plain language, directly stating the purpose of the executive session," Edmondson said. (¶ 3)
He conceded that "a public body may be unable to maintain the confidentiality available in an executive session if it must state on the agenda the nature of the matter to be discussed in executive session." (¶ 4)
"Still, we note that for a public body to convene in executive session to discuss employment matters is not mandatory; it is simply 'permitted,'" said Edmondson. "While on the other hand a public body's duty to specify on the agenda all matters to be undertaken in a meeting is absolute. (Id.)
"In this light," Edmondson said, "it is quite evident that the word 'identify,' as used in Section 311(B), connotes a requirement by the Legislature that public bodies must provide the public with enough information on its agendas to allow the public to know the nature of an executive session discussion." (¶ 3)
Pruitt emphasized the same statutory requirements last November, saying public bodies cannot meet in executive session to discuss economic development unless they "give proper notice of the proposed executive session on the meeting agenda." (2011 OK AG 22, ¶ 5)
Even more to the point, Pruitt told a state agency a year ago that its agenda was too vague under the Open Meeting Act when it listed an executive session "for the purpose of considering a settlement of a lawsuit(s)" under the attorney-client provision.
The meeting agenda should have listed the name of the parties in the lawsuit and a brief description of the litigation, Pruitt reportedly told the Commissioners of the Land Office.
In response, the agency's spokeswoman said, "In the future, we will list all parties of pending litigation."
At an open government workshop for public officials and others in Oklahoma City in November, Pruitt's top assistant said listing only the specific statutory authorization for the proposed executive session under the attorney-client privilege would be a violation of the Open Meeting Act.
"The public has a right to know what you are going to discuss in an executive session," said Rob Hudson, first assistant attorney general.
The agenda item should list information such as the name of the parties in the lawsuit, Hudson said.
"How else would the average person know what you are talking about," Hudson explained.
If the lawsuit or claim has not been filed, then the agenda item should include "at least the nature of it," Hudson said. "More is better."
Oklahoma courts have provided other guidance for interpreting the Open Meeting Act. For example, the Court of Civil Appeals has held that "strict adherence to the letter of the law is required" and that "substantial compliance" is insufficient. (Matter of Order Declaring Annexation, Etc., 1981 OK CIV APP 57, ¶¶ 20-21)
And because the Open Meeting Act was "enacted for the public's benefit," the Oklahoma Supreme Court said in 1981, the statute "is to be construed liberally in favor of the public." (Int’l Ass’n of Firefighters v. Thorpe, 1981 OK 95, ¶ 7)
Or as Hudson warned officials in November: "The Open Meeting Act is the law. Don't break the law."
Yet, the state Board of Education's agenda last week listed nothing more than the statute allowing the executive session. So much for the public's right to know what would be discussed behind closed doors.
Joey Senat, Ph.D.
Associate Professor
OSU School of Media & Strategic Communications
The opinions expressed in this blog are those of the commentators and do not necessarily represent the position of FOI Oklahoma Inc., its staff, or its board of directors. Differing interpretations of open government law and policy are welcome.
