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Freedom of Information Workshop
Jeff Stein, J.D.Wartburg College
The opinions expressed during this workshop are
not to be construed as specific legal advice, nor
as a replacement for consultation with a lawyer familiar with all aspects of
a given situation.
The First Amendment
• Congress shall make no law abridging freedom of speech or of the press…
• With rights come responsibilities
Covering the Courts
•Specialty•No greater right of access
than the general public•“Front Loaded” Coverage•“File” Material
Covering the Courts
•Decorum in the Courtroom•No right to copy evidence• Judges Ethics Rules Regarding
Statements to the Media•Lawyer Ethics Rules
Regarding Statements to the Media
Expanded Media Coverage
•The one “journalists only” tool
•EMC system/IFOIC—coordinator
•Respect for the proceedings
Expanded Media Coverage
•Regional coordinators•Advance notice; judicial
approval needed•Pool coverage
Expanded Media Coverage
•Party may object•Presumption in favor of EMC
Expanded Media Coverage
•Witness may object•Specific reasons must be
articulated•All alternatives must be
considered
Expanded Media Coverage
•Cannot show jurors•May have to limit coverage of
some witnesses•Failure to follow rules can
lead to suspension of privileges
Iowa Sunshine Laws
•Chapter 21: Meetings•Chapter 22: Records
Presumption of Openness
• 21.1: “This chapter seeks to assure…that the basis and rationale of governmental decisions…are easily accessible to the people. Ambiguity in the construction or application of this chapter should be resolved in favor of openness.”
Presumption of Openness
• 22.2(1): “Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.”
Iowa Open Meetings
•Definition of “Governmental Body”–board, council, commission or
other governing body expressly created by law, or of a political subdivision or tax-supported district, or an entity created by a body covered by this definition
Iowa Open Meetings
•What is a Meeting?–gathering in person or by
electronic means of a majority of the members of a governmental body where there is deliberation or action on a matter
Iowa Open Meetings
•Notice Requirements– time, date and place– tentative agenda– advising news media who
requested notice and posting notice on public bulletin board
–24 hours notice minimum
Iowa Open Meetings
•When can it be closed?–open, roll call vote–2/3 of the members, or all those
present at the meeting–not required to close a meeting–11 categories allowing closure
Iowa Open Meetings
•Penalties–fines against the members who
supported illegally closed meeting
– action taken at the meeting is void
– removal of members for repeat offenses
– ignorance is no excuse
Iowa Public Records
•What is a Record?– records, documents, tape or
other information– stored or preserved in any
medium
Iowa Public Records
•When can they be withheld?–57 categories–NOTE: presumption of
openness
Iowa Public Records
•Time in which to respond?–no more than 20 calendar days– typically within 10 business
days
Iowa Public Records•Penalties– criminal offense (simple
misdemeanor)– civil enforcement through courts– custodian fined; enjoined from
further offenses; removed from office
– ignorance is no excuse
Examples
•UNI graduate looking for job; prospective employer wants to check grades
•Books checked out at the library
•Policy as mandated by the warden regarding Iowa prison riots
Examples
•Material prepared by the County Attorney concerning lawsuit filed against the county
•Personal papers of a state legislator are donated to a library, conditional on constituent letters not being ‘public’
HIPAA
•Health Insurance Portability & Accountability Act of 1996– “Kennedy-Kassebaum Act”
•“to protect the confidentiality and security of health data through setting and enforcing standards”
HIPAA
•Affects health care providers, health plans, public health authorities, life insurers, information systems vendors, etc.
HIPAA•Hospital: fines up to $25K for
multiple similar violations in a calendar year; up to $250K and 10 years prison for knowing misuse of information
•Media Misrepresentation: up to $100K and up to 5 years prison
HIPAA
•Hospitals must ask each patient (or legal representative) if s/he agrees to disclose information
•Patients may opt to refuse release of information or limit the information released
HIPAA
•Media MUST have a patient’s name in order to ask for information
•Condition will only be provided if patient has approved release
•No information beyond condition will be released
HIPAA
• Hospital may only release the “Hospital Directory”–Patient’s Name– Location in the Hospital–General Condition (One Word)
•Only if patient agrees to release information
Patient Conditions• Undetermined
– awaiting assessment• Good
– vitals stable; conscious; comfortable; indicators are excellent
• Fair– vitals stable; conscious; uncomfortable; indicators
are favorable• Serious
– vitals unstable; acutely ill; questionable indicators• Critical
– Vitals unstable; unconscious; unfavorable indicators
Patient Conditions•Death–American Hospital Association
believes release of this information is permissible
– Information about the specifics of death NOT released without permission of next of kin, including time, date, or cause of death
Patient Conditions•Unconscious–Cannot decide if they want to be
included in the Hospital Directory–Hospitals can release if patient has
not objected in the past and release is in the best interest of the patient
–Most hospitals opt not to disclose
Protected Health Info
• Information that identifies an individual and is maintained or exchanged either electronically or by hard copy
• If the information has components that could identify a person, it would be protected
Law Enforcement Agencies
•Police, firefighters and other law enforcement agencies are NOT considered “covered entities” under HIPAA
•Fire department with ambulance service (EMS) may be covered (“hybrid agency”)
HIPAA Does NOT Cover
•HIPAA does NOT extend to–police incident reports–fire incident reports– court records– records of agencies that do not
provide health care or bill for health care
HIPAA Does NOT Cover
•HIPAA does NOT extend to– family members–witnesses–neighbors– “Good Samaritans”– journalists
Elements of Libel
•Publication• Identification•Defamation•Falsity•Degree of Fault
Publication
•Means published, broadcast, or otherwise disseminated to a third person
Identification
•Story must be “of or concerning” Plaintiff
Defamation
•Harm to reputation
Falsity
•Not substantially true•Gist or Sting of Story
Degree of Fault
•Prior to 1964, any error meant ‘libel’
•Standard changed with New York Times v. Sullivan
Degree of Fault
•Public Persons must prove “actual malice”– knowledge of falsity or
reckless disregard for the truth
•Private Persons must prove “negligence”– failure to follow normal
standards
Libel
• Iowa Law: Retraction Statute•Charlottesville Lawsuit•Ames Lawsuit
Use of the Internet
•www.JeffStein.org
