Hill v. East Baton Rouge Parish

• Decision Date: 22 December 2005
• Docket Number: No. 2005 CA 1236.,2005 CA 1236.
• Citation: 925 So.2d 17
• Parties: John HILL; Gannett River States Publishing Corporation, d/b/a the Times of Shreveport; the News Star, Monroe; the Daily Advertiser, Lafayette; the Town Talk, Alexandria; and the Opelousas Daily World; and the Louisiana Press Association v. EAST BATON ROUGE PARISH DEPARTMENT OF EMERGENCY MEDICAL SERVICES, East Baton Rouge Parish Communications District and Pam Porter.
• Court: Court of Appeal of Louisiana — District of US

925 So.2d 17

John HILL; Gannett River States Publishing Corporation, d/b/a the Times of Shreveport; the News Star, Monroe; the Daily Advertiser, Lafayette; the Town Talk, Alexandria; and the Opelousas Daily World; and the Louisiana Press Association v. EAST BATON ROUGE PARISH DEPARTMENT OF EMERGENCY MEDICAL SERVICES, East Baton Rouge Parish Communications District and Pam Porter.

No. 2005 CA 1236.

Court of Appeal of Louisiana, First Circuit.

December 22, 2005.

Brady D. King, II, A. Jill Futch, Monroe, Counsel for Plaintiffs/Appellants John Hill, et al.

Irys L. Allgood, Special Assistant Parish Attorney, Henry D.H. Olinde, Jr., Scott E. Mercer, Baton Rouge, Counsel for Defendants/Appellees East Baton Rouge Parish, Department of Emergency Medical Services, et al.

Before: KUHN, GUIDRY, and PETTIGREW, JJ.

PETTIGREW, J.

In this appeal, plaintiffs seek reversal of the trial court's judgment denying their request for issuance of a writ of mandamus based on the court's determination that the 911 tapes for which they submitted a public records request pursuant to Louisiana Public Records Law, La. R.S. 44:1-43 is protected from disclosure based on federal law protections covering private health information and the privacy afforded under the state and federal constitutions.

FACTS AND PROCEDURAL HISTORY

On February 21, 2005, John Hill, a correspondent with the Gannett newspaper chain, submitted a request to the Department of Emergency Medical Services (EMS) "to listen to the 911 call or calls made that resulted in EMS going to the home of Secretary of State Fox McKeithen. . . on Thursday, Feb. 17, 2005."¹ Mr. Hill received a letter dated February 25, 2005, from William Weatherford, Assistant Parish Attorney, notifying him that his request was denied. In the letter, Mr. Weatherford stated that the department was unable to grant Mr. Hill's request for the following reasons:

Under the Health Insurance Portability and Accountability Act (HIPAA) of 1996, the Privacy Rule of this Act became effective 2001 (revised in August 2002) with a compliance deadline of April 14, 2003. The City of Baton Rouge/Parish of East Baton Rouge EMS of which the dispatch service (911) and ambulance service is a part is a "Covered Entity" and are not allowed to release "Protected Health Information" (PHI) unless released by the individual whose health information is protected. The 911 recording, which contains PHI, and all related documents contain PHI and cannot be released.

Before HIPAA was enacted this information was considered public record to some extent. However, HIPAA preempts La. R.S. 44:1 et seq. Therefore, we are bound in this instance by the federal statute.

As a result of the denial of his request, Mr. Hill, the Gannett River States Publishing Corporation, doing business as several newspapers throughout Louisiana, and the Louisiana Press Association (collectively "plaintiffs") filed a petition for the issuance of a writ of mandamus directing EMS and the East Baton Rouge Parish Communications District (Communications District) through their custodian of records, Pam Porter (collectively "defendants"), to produce the requested 911 tapes for inspection or to show cause why the 911 tapes should not be produced for inspection.

In answer to plaintiffs' petition, defendants filed a peremptory exception raising the objection of no cause of action in which they asserted the allegations of plaintiffs' petition did not support a claim for damages under La. R.S. 44:1-43. They also filed a memorandum in opposition to plaintiffs' petition in which they alleged that HIPAA and general privacy laws barred disclosure of the requested 911 tapes.

A hearing in this matter was held on April 18, 2005, during which plaintiffs consented to the dismissal of their claim for damages, leaving before the trial court only the issue of whether HIPAA and/or general privacy laws prohibited the inspection of the 911 tapes. After hearing the arguments of counsel and reviewing the evidence submitted, including an in-camera inspection of the 911 tapes at issue, the trial court found the 911 tapes contain protected health care information that was not subject to disclosure without the permission of the individual to whom the information pertained. The trial court signed a judgment on April 22, 2005, denying plaintiffs' petition for the issuance of a writ of mandamus. It is from this judgment that plaintiffs now appeal.

DISCUSSION

Louisiana Public Records Law

Plaintiffs argue on appeal that the trial court erred in denying Mr. Hill's public records request made pursuant to La. R.S. 44:1-43 because defendants did not carry their burden of establishing that there was a valid exception/exemption to their request under state law. Article 12, Section 3 of the Louisiana Constitution provides "[n]o person shall be denied the right to observe the deliberations of public bodies and examine public documents, except in cases established by law." Louisiana Revised Statutes 44:31(B) further states:

(1) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person of the age of majority may inspect, copy, or reproduce any public record.

(2) Except as otherwise provided in this Chapter or as otherwise specifically provided by law, and in accordance with the provisions of this Chapter, any person may obtain a copy or reproduction of any public record.

(3) The burden of proving that a public record is not subject to inspection, copying, or reproduction shall rest with the custodian. (Emphasis added.)

It is undisputed that the Communications District is a public body and the 911 tapes being public records. The contention lies in whether there is an exception/exemption provided by law that would prevent inspection and production of the items requested. As set forth in La. R.S. 44:4.1, there are numerous exceptions, exemptions, and limitations to the laws pertaining to public records. Included in the list of exceptions is a reference to La. R.S. 13:3734, a statute entitled "Privileged communications between a health care provider and a patient." La. R.S. 44:4.1(B)(5). Louisiana Revised Statutes 13:3734(B) provides that in civil proceedings, "testimonial privileges, exceptions, and waiver with respect to communications between health care provider and his patient are governed by the Louisiana Code of Evidence." In turn, the Louisiana Code of Evidence sets forth the general rule of privilege:

In a non-criminal proceeding, a patient has a privilege to refuse to disclose and to prevent another person from disclosing a confidential communication made for the purpose of advice, diagnosis or treatment of his health condition between or among himself or his representative, his health care provider, or their representatives.

La.Code Evid. art. 510(B)(1).

"Health care provider" is defined, in pertinent part, as "a hospital . . ., person, corporation, facility, or institution licensed by the state to provide health care or professional services ... and an officer, employee, or agent thereof acting in the course and scope of his employment." La. R.S. 13:3734(A)(1); La.Code Evid. art. 510(A)(2). However, this definition is broadened by the Louisiana Code of Evidence to include "persons reasonably believed to be such by the patient or his representative." La.Code Evid. art. 510(A)(7). Moreover, it is further made clear that the health care provider has authority to claim the privilege on behalf of a patient or deceased patient. La.Code Evid. art. 510(D).

The Louisiana Code of Evidence broadly defines confidential communication as follows:

(8)(a) "Confidential communication" is the transmittal or acquisition of information not intended to be disclosed to persons other than:

(i) A health care provider and a representative of a health care provider.

(ii) Those reasonably necessary for the transmission of the communication.

(iii) Persons who are participating in the diagnosis and treatment under the direction of the physician or psychotherapist.

(iv) A patient's health care insurer, including any entity that provides indemnification to a patient.

(v) When special circumstances warrant, those who are present at the behest of the patient, physician, or psychotherapist and are reasonably necessary to facilitate the communication.

(b) "Confidential communication" includes any information, substance, or tangible object, obtained incidental to the communication process and any opinion formed as a result of the consultation, examination, or interview and also includes medical and hospital records made by health care providers and their representatives.

La.Code Evid. art. 510(A)(emphasis added).

Applying the above principles of law to the instant case, we conclude that the 911 tapes at issue qualify as a confidential communication. It is reasonable to believe that a person who calls 911 to request medical assistance would expect that any information transmitted through the call would be considered privileged material that would not be subject to inspection or production under the Louisiana Public Records Law. As correctly noted by defendants on appeal, "Those who call 911 must be confident that they can provide honest and candid medical information to 911 dispatchers without fear of embarrassment or reprisal due to public disclosure." Compare Sarphie v. Rowe, 618 So.2d 905, 908 (La.App. 1 Cir.), writ denied, 620 So.2d 1324 (La.1993) (holding that "when an individual walks into a doctor's office and opens his mouth, that everything spilling out of it, whether it be his identity or his false teeth . . ., is presumptively privileged and beyond the reach of discovery"). See also, In re Commitment of W.C., 96-0777, p. 6 (La.App. 1 Cir. 12/20/96), 685 So.2d 634, 638 (noting that the holding of Sarphie "was based upon the underlying concept of protecting the communication process between doctor...