Public Records and Public Hospital Districts

Presenters Angela S. Belbeck Associate Municipal Practice Group Ogden Murphy Wallace, P.L.L.C. Donald W. Black 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 “[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 (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 Printed Copy Photograph Every other means of recording Media –Paper –Electronically stored –Magnetically stored –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

s of a Personal Nature: Public Records or Not? Usually not –Not used for conduct of government Exception –When personal use conflicts with employer’s policy AND –Disciplinary action follows

Medical Records Medical records are not public records –Health Care Information Act Ch RCW –Health Insurance Portability and Accountability Act (HIPAA)

Required Procedures: RCW (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 (2) Resource –Municipal Research and Service Center, Appendix C, Public Records Disclosure

Indexing of Records: RCW (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 (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 (7) OR No more than $.15 per page RCW (8) Prohibited charges Allowed charges

Handling a PDA Request Respond within five days RCW –Provide copies or access to records –Deny in whole –Cite statutory basis –Deny in part –Redact records RCW (2) –Cite statutory basis –Estimate time needed to respond –Review for exemptions –Notify 3 rd 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 (1) (b) Personal information in employee files (t) Applications for employment (u) Residential addresses, phone numbers, addresses, etc. of employees and volunteers (ss) Credit and debit card numbers, expiration dates, bank and financial information

PDA Exemptions: RCW (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 (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 Physician Impairment Program records RCW RCW

Other State Statutory Exemptions Health Care Information Act Ch RCW Involuntary commitment records Ch RCW and Ch RCW (for juveniles) Genetic testing for parentage RCW Records regarding HIV/STD testing RCW

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 ( ) 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 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, pdf Attorney General, Public Records Deskbook (last revised 1998) http// shtml AWPHD, Legal Manual chapter 5 ter5/a.asp

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