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.Likewise, Texas' attorney general in 2004 said:
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))
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.
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.