CALIFORNIA — Student journalists at the University of SouthernCalifornia Annenberg are continuing to try to obtain death certificatesof H1N1 victims after being denied requests for the public records by 10counties across California.
In October, reporters for Neon Tommy, Annenberg’s digital newsWeb site, obtained 44 swine flu-related death certificates from Los AngelesCounty with the intent to report on who is dying of this growing epidemic, andif any pre-existing conditions were linked to the deaths.
“We wanted to put some faces behind what is an epidemic, sincemost of the coverage has been on [vaccine availability], who should get thevaccine, and prevention,” said Richie Duchon, Neon Tommy‘snews editor. “There’s not a lot about actually who the disease iskilling, and what we should take away from that.”
But when the reporters returned to the Los Angeles County Health Departmentto ask for any additional death certificates they knew to be public records, thedepartment refused to grant them access to any more death certificates.
“They said their legal process had changed,” Neon Tommyreporter Callie Schweitzer said. “Something that was really troubling tous about that was that of the 44 certificates we had, 20 of them did not sayanything about H1N1, so that means our case study could have been reduced to 24certificates. It seemed like a major pullback from the county.”
Some counties denied requests for the death certificates because theythought the records contained personal health information protected by theHealth Insurance Portability and Accountability Act (HIPAA), Duchon said, whichCongress passed in 1996, part of which requires patients’ hospital records to bekept confidential. But Thomas Burke, Partner at Davis Wright Tremaine LLP, saidwhile HIPAA might apply to those records, under state law, death records are tobe made public.
“There’s an exemption that says any records that are to bedisclosed under state law … are to be made public,” Burke said.”Even if HIPAA did apply, it’s a straight exit out under theexemption that says it’s disclosable. Period. End of story.”
In May of this year, Burke brought a public records lawsuit to the NebraskaSupreme Court, which found that state death records must be made open to thepublic, and that federal patient privacy statutes have no bearing on theirmandatory release.
Burke said the current state of the H1N1 epidemic makes the students’project timely and important.
“The public is entitled to know the extent of this public healthepidemic,” Burke said. “The president has said that this is a veryimportant health crisis, the CDC obviously takes this very seriously, why is itthat the public can’t know the extent of it? Now, you don’t want tohave a panic, of course, but you don’t want to have people unnecessarilypanic. And how are you going to know unless the county makes thatpublic?”
Los Angeles, Fresno, Kern and Sacramento Counties have reversed theirdenials and released the death certificates of swine flu victims to NeonTommy reporters. Schweitzer said the staff of Neon Tommy willcontinue to report more information from counties throughout Los Angeles.
“We’re going to keep pushing,” Schweitzer said.”This is something that needs to stay in the public eye. We’rehoping we’ll be able to get more information now that the county knowswe’re serious.”