By Darryl Enrriquez
Milwaukee Journal Sentinel
Copyright 2007 Journal Sentinel Inc.
WAUKESHA, Wis. — The Waukesha Fire Department’s practice of keeping ambulance reports secret led the Journal Sentinel on Thursday to seek a state attorney general’s opinion on whether the policy violates the state open records law.
In a letter to Attorney General J.B. Van Hollen, Managing Editor George Stanley asked if the department had violated state law by severely restricting information on its daily logs and incident reports, a situation brought to light by the wholesale redaction of a report about a suspected drunken mail carrier who crashed his government vehicle into a sign.
At issue is the department’s use of the Federal Health Insurance Portability and Accountability Act (HIPAA) to circumvent the open records law.
The letter to Van Hollen says that on Jan. 10, Journal Sentinel reporter Jacqueline Seibel asked for Fire Department reports “regarding a widely-reported incident in which a mail carrier crashed his postal delivery truck into a sign and was arrested for drunk driving.”
The Police Department reported that a Fire Department ambulance was sent to pick up mail carrier Thomas Lahiff, who was transported to Waukesha Memorial Hospital.
Lahiff was ticketed on suspicion of drunken driving and the case is in Waukesha Municipal Court.
However, Assistant Fire Chief Steve D. Howard denied the newspaper’s request, alleging that HIPAA prevented it from releasing any information about the incident, the letter says.
Howard, the department’s media liaison, contends that the Fire Department is a health-care provider because it offers emergency medical treatment services. HIPAA and state privacy laws prohibit the department from releasing identities of those who were treated, information about their physical or mental conditions and descriptions of medical treatments at emergency scenes, Howard wrote.
Three days later, Howard provided Seibel with a copy of the report with almost every word blacked out.
Assistant City Attorney Miles Eastman expressed confidence Thursday that the Fire Department’s policy based on HIPAA was correct.
“I look forward to hearing what the attorney general has to say about this case,” Eastman said.
Kevin St. John, a state Department of Justice spokesman, said the Journal Sentinel request would be assigned to an investigator Thursday. He could not say when a finding would be made available.
Bob Dreps, an attorney representing the Journal Sentinel, said HIPAA was designed to improve efficiency within the nation’s health care system by encouraging the sharing of electronic information, and it does allow disclosure of information when required by law.
Wisconsin law says that ambulance records are confidential but allows disclosure under open records of dates of call, dispatch and response times, reasons for dispatches, locations of dispatches, destinations of patient transport and name, age and gender of patients.
The statute prohibits only disclosure of treatment information, Dreps said.
HIPAA does not pre-empt state open records laws, meaning that the Fire Department erroneously relied on HIPAA to routinely redact information, Dreps said.
“When it comes to public records, HIPAA causes a lot of confusion,” Dreps said. “Early on, some police departments refused to provide accident reports and police reports with information about injuries. When a cop reports that a driver had a broken arm, it doesn’t mean it’s medical advice or treatment.
It is important that the public be kept aware of emergency medical responses to accidents that are of legitimate public interest “like the wayward postal worker who crashed his vehicle in a very public way,” Dreps said.
Stanley, who is on the board of directors of the Wisconsin Freedom of Information Council, agreed.
“Folks have a right to know that a mail carrier was driving drunk in their neighborhood before crashing his delivery truck into a sign,” Stanley said.
“You have to know this basic information before you can ask whether the Postal Service is doing a good job of screening and hiring, whether they’re keeping unsafe drivers off the road, whether people had complained about this driver in the past, or whether it was a first offense that couldn’t have been anticipated.
“The main thing is that this information belongs to the public, not government officials who decide for themselves what to keep secret and what to release,” Stanley said.
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