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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.
Oklahoma City Community College's campus newspaper has detailed in a two-part series several apparent violations of the state Open Records Act and the federal Clery Act by school officials.
Last week, The Pioneer reported that OCCC officials have cited three federal statutes -- the Family Educational Rights & Privacy Act, the Health Insurance Portability & Accountability Act, and the Americans with Disabilities Act -- as reasons for not releasing police records.
National experts disagreed that those statute prohibit the release of information by campus police.
For example, FERPA exempts law enforcement records, which the statute defines as records created by the law enforcement unit for a law enforcement purpose and maintained by the law enforcement unit.
Such records "are not 'education records' subject to the privacy protections of FERPA," says the U.S. Department of Education. "As such, the law enforcement unit ... may disclose law enforcement unit records to third parties without the eligible student's prior written consent."
Meanwhile, the Open Records Act requires that police records provide the name, date of birth, address, race, sex, physical description, and occupation of people arrested. (OKLA. STAT. tit. 51, § 24A.8(A)(1))
Yet, the newspaper reported, OCCC officials blacked out on a police report the name and other identifying information for a student arrested after he was reported to be sharpening a knife in class and then threatening classmates and the professor.
According to the newspaper, OCCC Media Relations Coordinator Cordell Jordan also has cited HIPAA and the ADA as reasons to redact information or withhold reports when campus police respond to accidents and injuries. OCCC attorney Nancy Gerrity defended that reasoning.
But the Student Press Law Center's attorney said campus officials are "misinformed, lying, or both" if they cite FERPA, HIPAA and the ADA as reasons not to release information in police reports.
"HIPAA applies to organizations that have a primary business of providing health care, insurance, or electronic records transactions for those companies; obviously, law enforcement has a primary business of enforcing the law and thus, none of its records are HIPAA records,” Adam Goldstein told the newspaper.
"The ADA isn't a privacy statute at all," he said. "It’s an anti-discrimination statute.
"It requires employers to treat individuals with qualified disabilities fairly and make reasonable accommodations for their disabilities.
"It has nothing whatsoever to do with records of any kind or the release of those records. If someone is citing the ADA as a basis for not releasing records, they're not even misinterpreting the law, they're just saying the names of laws they’ve heard that sound kind of official."
Student Press Law Center Executive Director Frank D. LoMonte agreed that HIPAA, FERPA and the ADA are not valid reasons for withholding campus police reports.
"First of all, HIPAA is almost always a false justification for refusing to turn over public records. HIPAA applies only to two types of people: Health care professionals, or insurers," LoMonte told the newspaper.
"If the college has someone's medical information because that person, for example, committed a crime or was injured in an accident, the college is in no way restricted by HIPAA from releasing that information. HIPAA is not a blanket health care secrecy law — it applies only to your doctor or your medical insurance carrier, not to colleges.
"FERPA is never, ever a valid reason for a college to withhold or redact crime reports, period," he said.
LoMonte told The Pioneer that citing the ADA as a "justification for withholding public records is so frivolous that it almost seems like it must be a joke."
This week, The Pioneer also reported that OCCC officials have taken weeks and months to provide public records.
For example, the newspaper said, the police report regarding the student arrested for sharpening a knife in class and threatening others was provided three weeks after the incident.
The Clery Act, however, requires that such incidences be reported on a publicly available crime log within two business days of their initial report to the campus police or the campus security department.
The Pioneer also provided examples of lengthy delays for non-police records.
Under the Open Records Act, "A public body must provide prompt, reasonable access to its records...." (OKLA. STAT. tit. 51, § 24A.5(5))
A 1999 attorney general opinion stated succinctly that "prompt, reasonable access" generally means "only the time required to locate and compile" the public records. (1999 OK AG 58, ¶ 15)
Oklahoma public agencies and officials have a "duty" to provide public records to the public.
Then-Attorney General Drew Edmondson said:
The purpose of the Act is 'to ensure and facilitate the public’s right of access to and review of government records so they may efficiently and intelligently exercise their inherent political power.' To fulfill this purpose the Act imposes a duty on a public body to 'provide prompt, reasonable access to its records' and make a person available to release records during the public body's regular business hours. (2005 OK AG 3, ¶ 4)
In a 2005 public records training video for police, Edmondson acknowledged that the time in which agencies must respond "varies with the circumstances."
But he also distinguished between "a detailed request for records that's going to require looking back over the past 12 months and pulling files that may already be in storage" and one for records "that are sitting right there on your desk and all you have to do is go to the copy machine."
"In most instances," he said, "open records requests should be responded to on the spot."
The Pioneer also noted that all records requests must be made to the OCCC Marketing and Public Relations office, a process that only delays access.
Funneling all media requests for records through one office runs contrary to a 2005 attorney general opinion requiring that government documents be made available where they "are located in the ordinary course of business."
"If a public body has more than one office location, its records must be maintained and made available to the public at the office where the records are located in the ordinary course of business," Edmondson said. (2005 OK AG 3, ¶ 10)
"The Act does not expressly address at what office location records must be maintained and made available to the public if a public body has more than one office location. It is our opinion that the 'prompt, reasonable access' to records that the public must be provided under the Act indicates the Legislature's intent that the public body's records shall be maintained and available at the office where the records are located in the ordinary course of business,” he said. (Id. ¶ 8)
LoMonte told the newspaper that delayed access indicates the low level of importance that OCCC officials place on being held accountable to the public.
It also indicates how little respect OCCC officials have for students, faculty, staff and the general public.
OCCC administrators act as though they are running a high school or a private college. But this is a publicly funded college.
Students, faculty and other taxpayers are entitled to know about what happens on campus, particularly when it involves police.
OCCC officials, however, are treating college journalists with the same disrespect that many high school administrators show for their students.
Kudos to The Pioneer editors and reporters for standing up for the public's right and need to know. But they'll need help if OCCC officials' attitudes and practices are to change.
Local and federal officials have an obligation to investigate what the newspaper has reported and to hold OCCC officials accountable for violations of state and federal law.
Local media also have an obligation to help by spreading the word to a larger audience. Back up these college journalists. Don't stand by while they are bullied by government officials.
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.
