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Home > Publications > Quill > Balancing the power of privacy


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Friday, September 1, 2006
Balancing the power of privacy

HIPAA takes a blow at the state level when a Texas court rules that public access comes first

By Brea Jones

In December 2003, Joe Ellis, a producer for KDFW-TV in Dallas, requested records from the Department of Mental Health and Mental Retardation about abuse and sexual assault in Texas’ mental health facilities.

The department argues that the reports are included in the Health Insurance Portability and Accountability Act and that releasing them would violate the patients’ privacy.

Now, nearly three years after his request and several court hearings later, Ellis may finally get the information he is seeking.

On June 16, the 3rd U.S. District Court of Appeals sided with him and ordered the mental health department to release the records. The department asked for a rehearing, but no decision was made by press time.

If the ruling stands, it will be one of the first times an appeals court ruled that a state public information law overrides HIPAA.

“I’ll consider it a victory whenever I’ve got those records in my hands, or in my e-mail box, or on a disc,” Ellis said.

Seeking information

While working at radio station WOAI in San Antonio, Ellis heard of a patient becoming pregnant in a state facility. When he moved to KDFW in September 2003, he received e-mails from patients’ family members about concerns of abuse. Ellis set out to see if sexual assault was happening in Dallas facilities. It began as a routine request.

“In the type of work I do, we go on fishing expeditions all the time.”

Katherine Garner, executive director of the Freedom of Information Foundation of Texas, said the original intent of HIPAA was to protect doctor-patient confidentiality and to protect private medical records. However, HIPAA has been used outside of the intent of the law: Coaches have concealed football player injuries, police conceal accident reports, and hospitals prevent ministers from locating their parishioners, she said.

“HIPAA was being used for all sorts of things it wasn’t intended for,” Garner said.

The appellate court decision provides guidelines for when public information outweighs privacy.

“I think the big picture is that the state Public Information Act trumps the federal HIPAA privacy rule,” said First Amendment lawyer Joel White, who is a director of the Freedom of Information Foundation of Texas.

Ellis said HIPAA doesn’t get in the way of his reporting often because he tries to negotiate with agencies to get only the data he needs, not personal information such as Social Security numbers.

“In this case, I have no interest in someone’s medical records from that agency — never did,” he said.

Case proceedings

According to Texas law, when an agency doesn’t want to release its records it must contact the attorney general for a decision. In 2004, Texas Attorney General Greg Abbott sided with Ellis, and the agency appealed Abbott’s decision. Abbott v. Texas Department of Mental Health and Mental Retardation has been a legal battle between lawyers in the attorney general’s office ever since.

These battles are fairly rare in Texas, which has had 19 other Public Information Act cases go before the Appeals Court or state Supreme Court since 2000, according to the attorney general’s office.

“The extent that they are going to — to conceal those simple numbers — is just a waste of taxpayer money,” said Ellis, who has filed successful requests with the agency before.

“For the most part, the public records laws in our state work the way they are supposed to.”

Practice, practice, practice

Ellis has been filing public information requests for nine years as a producer and while in college. He said reporters should know their state open records laws like the backs of their hands.

“If we don’t have that knowledge, then we don’t have any power,” he said.

To find stories by using state open records law, Ellis recommends practicing and learning the law by sending requests — even if it’s just for a list of pet licenses.

“I think it’ll help you become a better digger,” he said. “What I do and the people I work with, (we) don’t just rely on tips. We go digging. We go fishing.”

Find stories by fishing

The majority of the stories in Ellis’ career have come from public information requests. It was difficult for him to pick examples, but he landed big stories with routine requests. In:

* San Antonio, Ellis filed a public information request that showed a judge and city councilman shared a bank account. The councilman was a court-ordered attorney, and the judge gave him more cases in her court than any other attorney.

“The money he was making from his court appearances was going into her bank account,” Ellis said.

* Austin, Ellis found records about parole officers. He found everything from officers being supervised by people drinking alcohol on the job to officers convicted of crimes to officers losing their parolees.

* Austin, he tracked sex offenders and found 500 were living within 1,000 feet of schools.


Brea Jones, a 2006 graduate of California State University in Chico, is the Society of Professional Journalists’ Pulliam/Kilgore intern at the Society’s headquarters in Indianapolis. She recently accepted a job at The Record in Stockton, Calif.

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