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Amicus Briefs

January 9, 2009

A “Brief” Word from Your Attorney

Capitolbeat exists for several reasons.  In addition to being a resource and repository of information for statehouse reporters, organizing an incredibly educational (and fun) conference each year, the association also acts as a voice advocating for the rights of statehouse reporters across the country.

In recent years Capitolbeat has officially endorsed and opposed major legislation that would affect reporters of all stripes.  We have also joined amicus – also known as “friend of the court” – briefs that seek to enlighten a court as to how a pending case will affect newsgathering and publication.  Our participation in recent years has been limited to only those cases which attack the core values of statehouse reporters, with the most notable (and, perhaps, only) endeavor being Capitolbeat’s support for the Baltimore Sun in its fight against Maryland governor Robert Ehrlich, who had directed his staff to refuse many types of access to a Sun reporter and a Sun columnist.

Adams Co. v. Kinyoun

The Board is seeking to increase our advocacy in the future so that we can be a stronger influence on legal policy.  In that regard, Capitolbeat joined the American Society of Newspaper Editors, The Associated Press, the Nebraska Broadcasters’ Association, the Nebraska Press Association, the Radio-Television News Directors Association, and the Society of Professional Journalists on an amicus brief filed in the Nebraska Supreme Court by the Reporters Committee for Freedom of the Press.  The case is State of Nebraska ex. Rel. Adams County Historical Society v. Nancy Kinyoun.

At issue is a request filed by the Adams County Historical Society under the Nebraska’s version of the freedom of information seeking death records relating to 957 individuals buried on the grounds of a state mental institution between 1909 and 1959.  Those graves are currently marked by number, not name; the records request seeks information that would allow the public to identify the person buried in each grave.  The request was rejected by the Nebraska officials citing the federal Health Insurance Portability and Accountability Act of 1996 (“HIPAA”).  A Nebraska trial court upheld the denial, despite the fact that Nebraska law mandates disclosure of state government whenever possible and the plain language HIPAA and guidance by the federal government that HIPAA should not preempt these state laws.

Our brief argues:

  • HIPAA does not prevent the release of these records; in fact, the federal law has been interpreted by the United States Department of Health and Human Services to have no effect on state open records laws. Every state court that has  been faced with the intersection of a state law and the federal HIPAA law has ruled that the records at issue must be released.  Allowing these records to be withheld would place Nebraska at odds with these states and the prevailing view as to HIPAA’s effect on state law.
  • These death records are clearly “public records” under Nebraska law that must be available for public review. There is no privacy interest that would prevent release of the records, as the subject of each record is already deceased (and the privacy right generally dies with the person).
  • There is a strong public interest in release of these records, as the information contained in the records can shed light on the State of Nebraska’s treatment of those held in its mental health institutions, some of whom were likely committed against their will.  As the brief states: “When the state’s power is used so forcefully, it must be clear to the public who it is used against to prevent misuse.”  Release of these records allows the press and public to serve as a watchdog with regard to the state mental health system and the expenditure of state funds generally.

Future briefs

As the filing of this brief has garnered measurable media coverage, which helps to increase Capitolbeat’s profile, we hope this is the first of many amicus efforts in the near future.  In its last telephone conference call, your Board of Directors authorized me to seek out more amicus opportunities.   I’ll be reviewing any briefs I receive in the course of my work and soliciting the approval of the organization’s Officers, with participation generally occurring when the following factors are present:

a. The issue is one of clear importance to coverage of state government issues and the public interest.

b. The case has already reached the State Supreme Court level, meaning the case will impact the entire state.

c. Because of (a) and (b), there is likely to be an impact in other states as well.  This case is a perfect example:  the intersection of a state right to know law and HIPAA is an issue that has only been encountered in a handful of states to date (largely with favorable results for our side); thus, the more victories we can roll up early, the less likely it is that a state will buck the trend later on.

d. Others signing on to the brief are media organizations or companies or relatively mainstream civil liberties groups (nobody too controversial).

e. There is no cost or minimal cost clearly within our budget to join.

So if you know of a situation that is ripe for Capitolbeat’s participation, let your legal counsel or an Officer know.

Kevin M. Goldberg
Fletcher, Heald & Hildreth, P.L.C.

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