As you’ve read in these pages and, perhaps, in other places during the past three years or so, the federal government wants to ensure that Americans’ medical records are kept safe from unauthorized use or distribution. A worthy goal, admittedly, but one that has left journalists – and, thus, the public’s interest – out in the cold.
Under the Clinton administration, the Department of Health and Human Services adopted “medical privacy” rules. Now, the Bush administration has re-written them, after taking new comment, notably from business concerns.
You may also know that SPJ and other FOI advocates have been concerned with these rules – and the process of creating them – from the beginning, not necessarily for what they say, but for what they ignore.
The rules have never addressed an important issue: the necessity for certain information about patients to be available through the media to the community. On most days, that information might be simply the condition of a person injured in a high-profile automobile accident on a busy highway. Occasionally, it might be more serious – the nature of an illness stemming from an industrial release of toxic gas, for instance.
(In my home state of Montana, we’ve had the curious case of our own governor, who has worn her arm in a sling on multiple occasions, yet refuses to disclose what her ailment is.)
In the absence of such a “public interest” provision, SPJ and others have maintained that hospitals and other health providers will simply not release any information on patients for fear of running afoul of the federal rules and being subject to the strict penalties the rules impose for violations.
The new version of the rules, announced in August, still make no mention of the media or the public’s interest. “The media concerns were largely ignored and not even addressed” in the new version of the new rules, said Joel Campbell of Utah, a former SPJ FOI Committee Chair and the Society’s point person on the issue during the original rule-making process. “So basically we’re back to what we had feared.”
What that will mean to reporters on the street is this, according to Campbell: “If a police officer happens to tell you that John Smith is at so-and-so hospital, you could call up and verify that that person is in the hospital. They can release directory information.” But that may be it. Ask for the patient’s condition or nature of his illness or injury, and Campbell believes the hospital will decline without the patient’s expressed permission.
The one “tiny silver lining,” according to Campbell, deals with what the rules call “incidental use of disclosure.” Under that provision, if a reporter happens to overhear a conversation – say, between a doctor and a nurse in an emergency room – in which a patient’s condition is discussed, there is no penalty for unauthorized release.
In general, Campbell expects exactly what he and others have warned of for years now – that when a reporter calls asking for information on victims of accidents or other misfortune, health providers will stay quiet to avoid penalties, even if there is substantial public interest in providing information to the public.
I must give credit to House Government Reform Committee Chair Dan Burton, R-Ind.: He is an equal opportunity critic of presidential shenanigans. Whether or not you might agree with Burton’s antipathy toward Bill Clinton, anyone interested in FOI should applaud Burton’s support for efforts to overturn George W. Bush’s sudden and questionable assault on the 1978 Presidential Records Act last year.
Bush’s executive order effectively blocking the transfer of Reagan administration materials from classified archives to FOIA purview drew immediate fire from academics, historians and open government advocates. And while the White House maintained that there was no ulterior motive involved, one can’t help but wonder if Bush was protecting information that could be damaging to his father (Reagan’s vice president, George H.W. Bush,) or to members of his senior staff and Cabinet.
I’ve written before that Bush’s order should have transcended party affiliation and touched Congress’ institutional sense of outrage. After all, the act had been on the books for 24 years with a presidential signature and no court decision overturning it. To their credit, Reps. Burton and Steven Horn, R-Calif., have been willing to take on the White House on the subject. Horn held hearings on the executive order in his Government Reform Subcommittee and submitted a bill to overrule it and establish statutory procedures for claims of privilege by former presidents.
That bill, HR 4187, now apparently is headed to the full House, with Burton doing the pushing. In August, Bruce Craig of the National Coordinating Committee for the Promotion of History reported that a floor debate could emerge as early as September. Craig reports that sufficient bipartisan support may exist for the bill to pass the House and go to the Senate, where there is, in his words, “considerable sympathy for the legislation.”
In a year in which Congress has been ready and willing to drive gaping holes in FOIA, ostensibly to protect homeland security, it’s gratifying to see members of the president’s own party willing to stand up for access to public records and say “enough’s enough.”
You can do your part, too – by writing/faxing/e-mailing your representative on this issue.
Finally, a confession: I do not give credit often enough to one of SPJ’s most valuable resources: the Project Sunshine Network. Put simply, the network is a two-way information pipeline between SPJ’s national office (and national FOI Committee) and our membership in the 50 states and the District of Columbia. It’s also is a kind of “first alert” system when problems arise in individual states or localities.
In its 12 years of existence, Project Sunshine has helped SPJ address important issues over the years, and individual Sunshine Chairs have seen their names and comments show up in congressional testimony and SPJ FOI Alerts. Collectively, our Sunshine Chairs possess a wealth of knowledge, experience and commitment to open government and access to information.
In the past year, we’ve had to bid adieu to some of the stalwarts of the network for a variety of reasons, including retirement after long years of service. In some cases, the positions have been filled; in others, we’re still working on it and hope to have new Sunshine Chairs named soon.
In the meantime, I want to thank all the members of SPJ’s Project Sunshine network. At a time when we honor heroes among us, you should not be left out.
Ian Marquand is special projects coordinator for the Montana Television Network. He is chairman of SPJ’s Freedom of Information Committee. Contact him at firstname.lastname@example.org
Tagged under: FOI