Transcript www.awphd.org

Public Records and
Public Hospital Districts
Presenters
Angela S. Belbeck
Donald W. Black
Associate
Municipal Practice
Group
Ogden Murphy
Wallace, P.L.L.C.
Member, Business and
Healthcare Practice
Groups
Ogden Murphy
Wallace, P.L.L.C.
Richard Goldsmith
Director
Legal Services and
Health Policy
Association of Washington
Public Hospital Districts
Webcast Outline
• Purpose of the Public Disclosure
Act (PDA)
• What is—and isn’t—a public record
• Required procedures
• Handling requests
• Legal actions
• Legislative update
• Resources
Purpose of the PDA
• RCW 42.17.250-42.17.348
• “[A] strongly worded mandate for
broad disclosure of public records"
Hearst Corp. v. Hoppe, 90 Wn.2d 123, 127 (1978)
• Liberal construction in favor of
disclosure
• Exemptions narrowly construed
• Immunity for good faith release
• No immunity for good faith
withholding
Definition of Public Record
RCW 42.17.020 (36)
• Any writing:
– With information relating to:
– Conduct of government OR
– Performance of any governmental or
proprietary function
– Prepared, owned, used or retained
by:
– State agency
– Local agency (PHD)
– Regardless of:
– Physical form
– Characteristics
What Is a Writing?
• Handwritten
• Typewritten
• Media
– Paper
• Printed
– Electronically
stored
• Copy
– Magnetically
stored
• Photograph
• Every other
means of
recording
– Other type of
storage
When a Writing Isn’t a Public
Record
• Created for convenience of drafter
for personal use
AND
• Not intended for distribution
• Examples
– Handwritten notes to self
– Telephone messages
– Daily appointment calendars
E-mails of a Personal Nature:
Public Records or Not?
• Usually not
– Not used for conduct of government
• Exception
– When personal use conflicts with
employer’s e-mail policy AND
– Disciplinary action follows
Medical Records
• Medical records are not public
records
– Health Care Information Act
Ch. 70.02 RCW
– Health Insurance Portability and
Accountability Act (HIPAA)
Required Procedures:
RCW 42.17.250(1)
• Establish and display procedures
– Where to make a request
– Form of request
– Rules of procedure
– Statement of general policy
Public Contact
• Designate Public Records Officer
• Publicize contact information
– Place of business
– Internet site
– Other
List of Laws that Exempt
or Prohibit Disclosure
• Maintain list RCW 42.17.260(2)
• Resource
– Municipal Research and Service
Center, Appendix C, Public Records
Disclosure
Indexing of Records:
RCW 42.17.260(3)
• Create index, including:
– Final opinions
– Statements of policy and statutory
interpretation adopted by agency
– Administrative staff manuals and
instructions to staff that may affect
the public
– Planning policies, goals and decisions
– Factual staff reports, etc.
– Certain correspondence
• But . . .
When Indexing Is Not Required:
RCW 42.17.260(4)
• “Unduly burdensome”
– Adopt and publish resolution
– Make publicly available indexes that are
maintained
• Types of PHD-indexed documents
–
–
–
–
–
–
–
Bylaws
Policies
Rules and regulations
Minutes
Resolutions
Financial statements
Audits
Copy Charges
• Actual cost per page
RCW 42.17.260(7)
OR
• No more than $.15 per page
RCW 42.17.260(8)
• Prohibited charges
• Allowed charges
Handling a PDA Request
• Respond within five days
RCW 42.17.320
– Provide copies or access to records
– Deny in whole
– Cite statutory basis
– Deny in part
– Redact records RCW 42.17.310 (2)
– Cite statutory basis
– Estimate time needed to respond
– Review for exemptions
– Notify 3rd Party
– Request clarification
Handling Large Requests
• Cannot deny “overbroad requests”
• May opt to handle in installments
• May request 10% deposit
• May stop fulfilling remaining
installments where installment is
not picked up
Is Disclosure Required?
• Disclosure is required unless
agency can show record exempt
from disclosure
– State statutes
– Federal statutes
• Redactions
PDA Exemptions:
RCW 42.17.310(1)
• (b) Personal information in
employee files
• (t) Applications for employment
• (u) Residential addresses, phone
numbers, e-mail addresses, etc. of
employees and volunteers
• (ss) Credit and debit card numbers,
expiration dates, bank and financial
information
PDA Exemptions:
RCW 42.17.310(1), continued
• (g) Real estate appraisals
• (i) Preliminary drafts, notes,
recommendations
• (j) Non-discoverable records
relevant to controversy
– Attorney-client privilege
– Work product
PDA Exemptions:
RCW 42.17.310(1), continued
• (hh) Documents created for, and
collected and maintained by:
– Quality Improvement Committee
– Peer Review Committee
– Nursing Home Quality Assurance
Committee
– Boarding Home Quality Assurance
Committee
• (ddd) Information regarding the
infrastructure and security of
computer and telecommunications
networks
PDA Exemptions:
RCW 42.17.316
• Physician Impairment Program
records RCW 18.71.300 - RCW
18.71.340
Other State Statutory
Exemptions
• Health Care Information Act
Ch. 70.02 RCW
• Involuntary commitment records
Ch. 71.05 RCW and Ch. 71.34
RCW (for juveniles)
• Genetic testing for parentage
RCW 26.26.450
• Records regarding HIV/STD testing
RCW 70.24.105
Examples of Federal
Exemptions
• HIPAA privacy regulations
45 CFR 160 and 164
• Substance abuse records
42 USC 290dd-2
• Alcohol and drug abuse patient
records 42 CFR Part 2 (2.1-2.67)
• Social security numbers
42 USC 405(c)(2)(vii)(l)
Legal Actions: PHDs
• Enjoin release of record
• Show disclosure:
– Not in the public interest
AND
– Would “substantially and irreparably
damage any person or vital
government function”
Legal Actions: Requestor
• Require agency to show cause for
denial
• Mandatory penalties for PHD
– $5-$100 per day
– Court will consider good faith of
agency when determining amount of
penalty
– Attorney’s fees
• Statute of Limitations: 1 year from
denial or last installment
Legislative Update
• Substitute House Bill 1133 Chapter 274, Laws of 2005
– Public Disclosure Act recodified as
“Public Records Act” in new chapter
of title 42 RCW
– Reorganizes exemptions by subject
matter
– Does not change exemptions
– Effective date: July 1, 2006
Resources
• MRSC, Public Records Disclosure for
Washington Cities and Counties, 2004
http://www.mrsc.org/Publications/prdpub
04.pdf
• Attorney General, Public Records
Deskbook (last revised 1998)
http//www.atg.wa.gov/records/deskbook.
shtml
• AWPHD, Legal Manual chapter 5
http://www.awphd.org/legalmanual/chapt
er5/a.asp
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