May Shine On – Monthly Chat with First Amendment Foundation

Barbara Petersen with the Florida First Amendment Foundation is back! Last month she discussed what she thinks the State of Florida could be doing to make local and state governments more transparent and open. This month we ask her about taking pictures of documents and how far of a reach the Federal HIPPA law has locally. Sam Steinberg, the First Amendment Foundation’s legal fellow assisted with the answers to these questions.

Let us know what you could use some help with, when it comes to the Florida Sunshine Laws. You can leave questions and comments below or send them to VP of Programs, Lynn Walsh.

SPJ South Florida: Can you photograph photos of records you are viewing?  

Barbara Petersen: Yes.  In general, a person may make photographic copies of records using a variety of devices including a cell phone camera or a portable scanner.  In fact, I am aware of at least one situation of a person rolling in a full service copy machine to copy public records.

There is a provision in the public records law, s. 119.07(3)(a), which says that requestor must be given access to public records for the purpose of making photographs of the records; section 119.07(3)(b)  states that the right to take photographs “applies to the making of photographs in the conventional sense by use of a camera device to capture images of public records.”

Because record custodians are required to make sure that public records aren’t altered or destroyed, they are required to supervise a requestor who decides to make his or her own copies.  If such supervision requires an extensive use of agency resources, s. 119.07(4)(d) allows an agency to charge a reasonable fee based on actual costs incurred for supervisory time.

Finally, public record custodians are allowed to adopt “reasonable rules” governing photographing of public records and if a room other than that where the records are stored has to be provided, the expense of providing that room will be passed on to the requestor.

Bottom Line:  Even though an agency can’t charge a copying fee if a requestor photographs public records or makes his or her own copies, there may be other costs associated with photographing the records.

SPJ South Florida: When is it acceptable for an organization to claim exemption using HIPPA? Would general information referencing medical or health issues apply even if it doesn’t come from a medical professional or is referenced in a medical related file? Or does it have to come from a medical professional?  

Barbara Petersen: Without a doubt, HIPPA, the federal health information privacy law, is the most misunderstood and misapplied law I have to deal with.

In general, HIPPA applies only to personal identifying health information held by “covered entities” including health care providers, health plans, and health care clearinghouses.  Entities not covered by HIPPA include life insurance companies, auto insurance companies, worker’s compensation carriers, and employers.

This means that the vast majority of government agencies in Florida can’t claim HIPPA as a reason for denying a public record request.  However, Florida law contains numerous provisions that protect health and mental health information held by government agencies.  For example, s. 456.046, F.S., exempts patient information held by Florida Department of Health and s. 641.515(2), F.S., provides an exemption for the same information in the hands of the Florida Agency for Health Care Administration.

Remember, if your public record request is denied, (politely) demand the records custodian to state the basis for the denial, including the specific statutory citation.  Section 119.07(1)(f), F.S., specifically requires the custodian to “state in writing and with particularity the reasons for the conclusion that the record is exempt or confidential”  if asked to do so by the requestor.

Click here In case you missed last month’s chat.

Answers to these questions and many more, including questions about application of Florida’s open meetings law, can be found in the 2013 Government-in-the-Sunshine Manual, which is now available in both a print edition and electronically.  Go to the First Amendment Foundation website, www.floridafaf.org, and click on FAF Store for information on how to order the manual.

Barbara A. Petersen, President First Amendment Foundation

A graduate of the University of Missouri-Columbia and Florida State University College of Law, Barbara A. Petersen is president of Florida’s First Amendment Foundation.  Before taking her current position in 1995, Petersen was staff attorney for the Joint Committee on Information Technology Resources of the Florida Legislature, where she worked exclusively on public records legislation and issues.  A passionate advocate of the public’s right to oversee its government, Petersen is the author of numerous reports and articles on open government issues.  She currently sits on the board of the National Freedom of Information Coalition, having served as its president and treasurer, and was recently appointed to the Integrity Florida board of directors.  Petersen served as chair of Florida’s Commission on Open Government Reform.