Q&A: hip hip, HIPAA!

Q.  I am researching water-related deaths (for example, swimming, boating, falling or being swept into lake), and I want to get information about the sobriety of the victims.  What I am looking for is whether they were under the influence of drugs or alcohol when they died.  I have been denied a FOIA [in Michigan] when I asked for toxicological results in writing.  Also, I have been told verbally that HIPAA laws would prevent release of such information.  

A. The HIPAA Privacy Rule issued by the U.S. Department of Health and Human Services (HHS) generally provides that the health information of deceased individuals is protected from disclosure for 50 years.  The following HHS guidance explains how the Privacy Rule works.  Further, HHS guidance indicates that unless state law mandates the disclosure of the information you seek, a state agency covered by HIPAA would be required to protect it in response to a freedom of information request. 

FOIA News: Email shows Mills was told of key Clinton FOIA request

Email shows Mills was told of key Clinton FOIA request

By Josh Gerstein, Politico, August 10, 2016

A newly-released email message shows that Hillary Clinton's State Department Chief of Staff Cheryl Mills was alerted within days in December 2012 when a liberal watchdog group requested records describing all the email accounts used by Clinton.

Six months later, State sent a letter to Citizens for Responsibility and Ethics in Washington saying no records could be found. A State Department inspector general report issued in January described the episode as part of a pattern of "inaccurate and incomplete responses" to FOIA requests.

The incident is noteworthy because had State's response been more thorough, Clinton's exclusive use of a private email server as Secretary of State could have been exposed years before it became public in March 2015.

Read more here.

Court opinion issued Aug. 8, 2016

Andrus v. U.S. Dep't of Energy (D. Idaho) -- ruling that: (1) plaintiff, the former Governor of Idaho, failed to exhaust his administrative remedies with respect to one of his five requests concerning the disposal of nuclear waste; (2) agency failed to adequately explain its Exemption 5 withholdings and ordering it to submit documents for in camera review; (3) plaintiff properly challenged agency's decision under Administrative Procedure Act because DOE failed to follow a regulation that requires release of documents if in "public interest" notwithstanding the applicability of FOIA exemptions.

Summaries of all opinions issued since April 2015 available here. 

FOIA News: National Reconnaissance Office Redacts Paper That Was Public Four Years Ago

National Reconnaissance Office Redacts Paper That Was Public Four Years Ago

By Matt Novak, Gizmodo, August 9, 2016

If you’re one of the country’s most important spy agencies, you’d probably have a pretty strict list of what documents to keep secret, right? Well, judging from my latest FOIA request, the National Reconnaissance Office (NRO) might just be winging it.

Back in April, I filed a Freedom of Information request for a list of history papers held by the NRO, the American intelligence agency tasked with keeping an eye on the globe from satellites in space. I was expecting to get more information than had already been released to other organizations like Government Attic back in 2012. And a couple of days ago, I did. But I also received evidence that the FOIA redaction process can be pretty random—seemingly subject to the whims of whatever FOIA officer is assigned to the task of looking at your FOIA request that day.

In the response to my request for a bibliography of history papers housed at NRO, the intelligence agency fully redacted the title of a paper that had been made public in a previous release just four years earlier.

Read more here.

FOIA News: Judicial Watch releases 296 pages of State Department records

Judicial Watch Uncovers New Batch of Hillary Clinton Emails

Judicial Watch, August 9, 2016

Judicial Watch today released 296 pages of State Department records, of which 44 email exchanges were not previously turned over to the State Department, bringing the known total to date to 171 of new Clinton emails (not part of the 55,000 pages of emails that Clinton turned over to the State Department).  These records further appear to contradict statements by Clinton that, “as far as she knew,” all of her government emails were turned over to the State Department

The new documents reveal that in April 2009 controversial Clinton Foundation official Doug Band pushed for a job for an associate. In the email Band tells Hillary Clinton’s former aides at the State Department Cheryl Mills and Huma Abedin that it is “important to take care of [Redacted]. Band is reassured by Abedin that “Personnel has been sending him options.” Band was co-founder of Teneo Strategy with Bill Clinton and a top official of the Clinton Foundation, including its Clinton Global Initiative.

Included in the new document production is a 2009 email in which Band, directs Abedin and Mills to put Lebanese-Nigerian billionaire and Clinton Foundation donor Gilbert Chagoury in touch with the State Department’s “substance person” on Lebanon.  Band notes that Chagoury is “key guy there [Lebanon] and to us,” and insists that Abedin call Amb. Jeffrey Feltman to connect him to Chagoury.

Read more here.

FOIA News: State Dep't under siege for Bill Clinton's schedules

New Clinton email fight: Bill Clinton's schedules

An RNC lawsuit is trying to force release of the records, but it may not gain traction before the election.

By Josh Gerstein, Politico, Aug. 9, 2016

Republicans have opened a new front in the sprawling legal war over the release of State Department emails: a battle to open up thousands of pages of schedules for former President Bill Clinton.

But the clock is ticking down on the GOP's hopes to use the trove of details on Clinton's post-presidency against his wife, Democratic presidential nominee Hillary Clinton, before the November election.

The records turned up recently in response to a broad-ranging Republican National Committee Freedom of Information Act lawsuit for all emails between various aides to Hillary Clinton during her four-year tenure as secretary of state and certain private Web domains used by the Clintons, the Clinton Foundation and related organizations.

State turned over 14 pages of heavily redacted Bill Clinton schedules to the RNC in June amid a smattering of other records. Just about the only substantive information left in the daily calendars for the former president were weather forecasts for the Clintons' home in Chappaqua, New York.

Read more here.

Court opinions issued Aug. 5, 2016

Labow v. U.S. Dep't of Justice (D.C. Cir.) -- affirming the district court's grant of summary judgment in favor of the FBI on claims under Exemption 7(D) and under the exclusion set forth in 5 U.S.C. § 552(c)(1); reversing the grant of summary judgment on challenges to FBI's withholdings under Exemption 3, specifically the Pen Register Act and Fed. R. Crim. P. 6(e) (grand jury records); vacating as moot the district court's opinion with regard to Exemption 7(A).

GMBH v. Cent. Intelligence Agency (D.D.C.) -- determining that the CIA conducted a reasonable search for records pertaining to the head of East Germany's state security service, and that the agency properly withheld certain information pursuant to Exemption 3 (The National Security Act and the CIA Act).  

Summaries of all opinions issued since April 2015 available here. 

FOIA News: Records about Gold King Mine spill to be made searchable

EPA: Released documents will be made searchable

Agency uploaded 29,000 documents in response to Gold King Mine spill

By Shane Benjamin, The Journal, Aug. 6. 2016

Thousands of emails related to the Gold King Mine spill that were posted online last week by the Environmental Protection Agency will eventually be made searchable, the agency said Thursday.

The documents were posted largely in response to multiple open records requests from media outlets across the country that are seeking more information about the Aug. 5, 2015, spill.

They generally consist of email communications involving EPA employees – pre-spill and post-spill – in addition to attachments and meeting invites, the EPA said Thursday in an email to the The Durango Herald. The oldest document is from March 2013, and the most recent is from November 2015.

The documents were uploaded as PDFs to a file-sharing site but are unsearchable without opening each of the 29,126 links. Even then, because the PDFs have been uploaded as images rather than text documents, it is difficult to perform keyword searches without using optical reading software. There’s about 20 gigabytes worth of uploads.

Read more here.

Court opinion issued Aug. 4, 2016

Myrick v. Johnson (D.D.C.) -- concluding that the Department of Homeland Security properly relied on Exemption 7(E) in refusing to confirm or deny the existence of records pertaining to a specific undercover operation.

Summaries of all opinions issued since April 2015 available here. 

FOIA News: FOIA Request helps AP reporter "take down flossing"

How an AP reporter took down flossing

By Kristen Hare, Poynter, August 5, 2016

Tell us about the process behind this story. It started with a FOIA, right?

My work started with a careful look at the research. Much of it was identified in five medical literature reviews undertaken over the past decade. I also began to wonder how floss had gained such wide acceptance, who had promoted it, and why.

I found that the federal government had been promoting floss for decades, chiefly in its Dietary Guidelines for Americans. By law, the guidelines must be based on science, so I asked staffers at the responsible agencies — the departments of Health and Human Services and Agriculture — for the documentation behind the floss recommendation. Weeks of requests failed to turn up anything. So I filed a formal FOIA request.

Six months passed. On Jan. 7, the government put out a new edition of the guidelines, as scheduled. The flossing recommendation had quietly been dropped. The next day, HHS wrote a letter to me in reply to my FOIA request. It said that no relevant records could be located and then added that floss had never been researched by the committees that review science for the guidelines.

It said that flossing had simply been taken as a "general public health recommendation." In the end, this appeared to be a rare instance where simply filing a FOIA changed government policy.

Read more here.