Attorney general’s opinion sought on keeping coroner records closed

After weeks of pushing off requests to release complete coroner’s reports for those who died with COVID-19, Garland County officials have requested an attorney general’s opinion on whether those records must be made public.

The move by Garland County attorney John Howard and coroner Stuart Smedley is among several actions by local officials to keep parts of death reports private.

Legal experts say these records should be open under state law and are key to the public’s understanding of the COVID-19 pandemic that has infected more than 40,000 Arkansans and killed more than 400.

State Rep. Les Warren, R-Hot Springs, sent the attorney general’s opinion request, dated July 22, on behalf of the county attorney, he said. State legislators are among those who can receive attorneys general’ opinions under Arkansas law.

The letter, provided to the Arkansas Democrat-Gazette on Monday, contains 16 points for the attorney general to consider, including the “substantial risk of invasion of privacy to the family and next of kin of the decedent,” and “the strong public interest in such information during the ongoing pandemic.”

The request’s central question: “Are these records of county coroners regarding people who have died of the ongoing COVID-19 pandemic, or those whose deaths are COVID-19 related, subject to public disclosure and release under the Arkansas FOIA?”

FOIA is the state’s Freedom of Information Act and requires most documents produced by government officials in their work be made public.

Democrat-Gazette reporter Eric Besson has requested death reports from dozens of counties since the state announced its first coronavirus death in March. So far, coroners across the state have turned over more than 300 reports.

At least four county coroners have provided redacted records. Benton, Sebastian and Washington counties have redacted the next of kin and other limited information. Garland County’s coroner redacted much of his reports’ data, including the deceased’s name, age, city of residence and large portions of the narrative.

Open records experts said in interviews that these redactions were questionable, at best.

Some coroners, such as Pulaski County coroner Gerone Hobbs, have provided

complete reports quickly after investigations are complete, as required under the state’s public records law.

In one other county, Nevada, calls, emails and a fax to the numbers listed online for the county coroner have gone unreturned. No records had been provided as of late Tuesday.

Benton County coroner Daniel Oxford, with advice from county attorney George Spence, redacted information about next-of-kin or responsible parties from reports and cited HIPAA prohibitions, from the federal Health Insurance Portability and Accountability Act. State public records experts have argued that HIPAA doesn’t apply to county coroners.

Garland County’s Howard said earlier this month that the county would request an opinion from Attorney General Leslie Rutledge on the matter after the Democrat-Gazette raised objections to redactions.

“They’re really undermining our ability to get a full grasp of the situation,” newspaper managing editor Eliza Gaines said in an interview. “And just to have a full understanding of COVID deaths in our community, we need to have all the information that is legally available. It’s our duty to inform the public of what’s going on with the situation.”

In reporting on COVID-19, the newspaper has used coroners’ reports to develop the “Lives Remembered” series, in which reporters contact family members of those who have died with COVID-19 to tell a more complete story about their lives. The coroners’ reports also have been used to learn more about deaths in prisons and nursing homes as well as circumstances shared by multiple deaths.

In a July 20 email to Besson regarding the redactions, Howard referenced HIPAA and Ark. Code Ann. 14-14-110. He also cited McCambridge v. Little Rock and the Arkansas Personal Information Protection Act in a July 15 email.

These laws are:

• HIPAA — A federal privacy rule that covers health plans, health care clearinghouses and health care providers who conduct certain financial and administrative transactions electronically.

• Ark. Code 14-14-110 — A law regarding county government that exempts personal records, medical records, and other records from disclosure.

• McCambridge v. Little Rock — A 1989 Arkansas Supreme Court case regarding disclosure of crime scene photographs and a suicide note.

• Arkansas Personal Information Protection Act — A state law requiring businesses to secure the personal records of customers.

Through Howard, Smedley declined to comment further on the matter.

“The press is exactly the vehicle” to provide coroners’ death report information to the public, said John Tull, an expert on the state’s open-records law and general counsel for the Arkansas Press Association. “And the public has a right to know about hot spots so they can protect themselves, they have the right to know what the incident is, the death rate … that might influence the care they might take.”

Tull said he believes none of the laws cited by Garland County should result in records being withheld. He said he believes HIPAA doesn’t apply to coroners and that the need for public disclosure outweighs the need for privacy.

Robert Steinbuch, co-author of the sixth edition of The Arkansas Freedom of Information Act reference book, agreed with the need for public disclosure.

He added that “it’s an extremely high bar,” for personal privacy to override public interest and that information such as next-of-kin and age “doesn’t even come close.”

“This is throwing jelly at the wall and hoping some of it sticks,” he said of the reasoning provided behind keeping the records secret.