This article is part of a series of articles in which Curt Varone will address questions on important fire service legal issues. If you would like to submit a question, please email Shannon Pieper at firstname.lastname@example.org.
Question: An employee on an EMS unit takes a picture of an injury such as a burn or some other severe trauma before bandaging to be able to show doctors at the hospital what is under the dressing. What is the appropriate way for the department to handle that picture now that it exists? Can it or should it simply be deleted, or must we collect and keep that picture even though the purpose and intent was fulfilled by the time the ambulance crew leaves the hospital?
Answer: There are two major considerations with regard to the retention of any imagery taken by fire and EMS personnel in the performance of their duties. The first pertains to evidentiary issues associated with the imagery; the second pertains to public records law. Both considerations are best addressed by having a policy to preserve every image taken in a secure archive.
Let’s start with images as evidence. Firefighters respond to emergencies where people are killed and injured, and their property is destroyed. This reality means there is an inherent potential for litigation in much of what we do. Spoliation is the destruction or loss of evidence that is relevant to a legal proceeding. It has both criminal and civil consequences, both of which need to be avoided. When we possess evidence that we know, or should know, is relevant to a legal proceeding, the law imposes a duty on us to properly preserve it. Our failure to do so can be used against us in the event we are sued and can be disastrous for the outcome of the case.
For example, let’s assume the medic takes a photo of a badly angulated fractured arm prior to splinting. The patient is packaged and transported. The image is shown to a doctor in the emergency department and then deleted. Should the patient later sue the fire department and/or the medic for malpractice, the loss of that image may prove to be a point of contention in the suit.
The medic may argue she had no reason to believe the photo was relevant to a legal proceeding, but the patient may claim the medic should have based on complaints the patient made while the arm was being splinted (questioning the medic’s competency), and the excruciating pain the patient experienced. If the medic is found to have spoliated the photo, the jury may be instructed that they can infer the medic deleted the image because it would have been hurtful to her case. In other words, the jury may infer the medic deleted it because she was concerned it may show she was negligent.
The decision to delete imagery must be evaluated in hindsight, and that hindsight simply does not exist in the moments after the image is taken.
A more common example occurs when a fire apparatus is involved in a crash and firefighters take photos at the scene. Any time there is an accident involving fire apparatus, there is the potential for litigation.
The evidentiary relevance of a given photo may not be immediately apparent to a firefighter or medic at the time it is taken. For that reason, personnel must be trained not to delete incident-related imagery. The decision to delete imagery must be evaluated in hindsight, and that hindsight simply does not exist in the moments after the image is taken.
The other big consideration with regards to retaining digital imagery relates to public records concerns. All 50 states plus the federal government have laws that require agencies and individual employees who are in possession of public records to retain them for the duration of what is called the record retention period. Public records are typically defined as any document, correspondence, report or image created or received by a public employee in the course of his/her duties. Deleting a public record prior to the expiration of the record retention period—or refusing to produce a public record when lawfully ordered to do so—is a criminal offense in many jurisdictions, and a finable civil infraction in the others.
When spoliation-related concerns are coupled with a legal duty to retain public records, the scope of the problem becomes apparent. Fire departments need to require that all imagery taken or received in the course of business be retained and archived.
An area of confusion commonly arises with regards to EMS-related imagery. The fact that we retain an image for public records purposes does not mean the entire image will be released to the public; nor does the fact that an image contains medically confidential information mean it is exempt from the public records law. The connection here is somewhat paradoxical.
Public records laws allow and/or require public agencies to redact certain types of information from a record prior to release. Medically confidential information and personal information (date of birth, Social Security number) are precisely the types of information that can be redacted from a public record when released. However, a public agency cannot withhold an entire public record simply because some parts of it contain protected information. As such, an image taken of a patient may constitute a public record, but portions of the photo may have to be redacted before it is released.
This is no different than the public records aspect of a patient care report. A typical public records request for a PCR will result in the release of a document that is little more than a blank report with black boxes where virtually everything pertaining to the patient has been redacted. The same approach must be taken with imagery.
The determination of whether an image must be released to the public, and/or how much of the image must be released, should be made by attorneys familiar with the intricacies of public records laws. It should not be made by individual firefighters deleting images. The original unredacted images themselves should be retained.
All fire departments need a record retention policy to ensure compliance with both the evidentiary and public records concerns discussed above. The policy should explain the retention periods required by state law and have provisions for what is commonly referred to as a “litigation hold.” A litigation hold is a way of flagging certain records for retention beyond the standard time limits because they may be relevant to a legal proceeding.