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Freedom of Information Workshop Jeff Stein, J.D. Wartburg College.

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Presentation on theme: "Freedom of Information Workshop Jeff Stein, J.D. Wartburg College."— Presentation transcript:

1 Freedom of Information Workshop Jeff Stein, J.D. Wartburg College

2 The opinions expressed during this workshop are not to be construed as specific legal advice, nor as a replacement for consultation with a lawyer familiar with all aspects of a given situation.

3 The First Amendment Congress shall make no law abridging freedom of speech or of the press… With rights come responsibilities

4 Covering the Courts Specialty No greater right of access than the general public “Front Loaded” Coverage “File” Material

5 Covering the Courts Decorum in the Courtroom No right to copy evidence Judges Ethics Rules Regarding Statements to the Media Lawyer Ethics Rules Regarding Statements to the Media

6 Expanded Media Coverage The one “journalists only” tool EMC system/IFOIC—coordinator Respect for the proceedings

7 Expanded Media Coverage Regional coordinators Advance notice; judicial approval needed Pool coverage

8 Expanded Media Coverage Party may object Presumption in favor of EMC

9 Expanded Media Coverage Witness may object Specific reasons must be articulated All alternatives must be considered

10 Expanded Media Coverage Cannot show jurors May have to limit coverage of some witnesses Failure to follow rules can lead to suspension of privileges

11 Iowa Sunshine Laws Chapter 21: Meetings Chapter 22: Records

12 Presumption of Openness 21.1: “This chapter seeks to assure…that the basis and rationale of governmental decisions…are easily accessible to the people. Ambiguity in the construction or application of this chapter should be resolved in favor of openness.”

13 Presumption of Openness 22.2(1): “Every person shall have the right to examine and copy a public record and to publish or otherwise disseminate a public record or the information contained in a public record.”

14 Iowa Open Meetings Definition of “Governmental Body” –board, council, commission or other governing body expressly created by law, or of a political subdivision or tax-supported district, or an entity created by a body covered by this definition

15 Iowa Open Meetings What is a Meeting? –gathering in person or by electronic means of a majority of the members of a governmental body where there is deliberation or action on a matter

16 Iowa Open Meetings Notice Requirements –time, date and place –tentative agenda –advising news media who requested notice and posting notice on public bulletin board –24 hours notice minimum

17 Iowa Open Meetings When can it be closed? –open, roll call vote –2/3 of the members, or all those present at the meeting –not required to close a meeting –11 categories allowing closure

18 Iowa Open Meetings Penalties –fines against the members who supported illegally closed meeting –action taken at the meeting is void –removal of members for repeat offenses –ignorance is no excuse

19 Iowa Public Records What is a Record? –records, documents, tape or other information –stored or preserved in any medium

20 Iowa Public Records When can they be withheld? –57 categories –NOTE: presumption of openness

21 Iowa Public Records Time in which to respond? –no more than 20 calendar days –typically within 10 business days

22 Iowa Public Records Penalties –criminal offense (simple misdemeanor) –civil enforcement through courts –custodian fined; enjoined from further offenses; removed from office –ignorance is no excuse

23 Examples UNI graduate looking for job; prospective employer wants to check grades Books checked out at the library Policy as mandated by the warden regarding Iowa prison riots

24 Examples Material prepared by the County Attorney concerning lawsuit filed against the county Personal papers of a state legislator are donated to a library, conditional on constituent letters not being ‘public’

25 HIPAA Health Insurance Portability & Accountability Act of 1996 –“Kennedy-Kassebaum Act” “to protect the confidentiality and security of health data through setting and enforcing standards”

26 HIPAA Affects health care providers, health plans, public health authorities, life insurers, information systems vendors, etc.

27 HIPAA Hospital: fines up to $25K for multiple similar violations in a calendar year; up to $250K and 10 years prison for knowing misuse of information Media Misrepresentation: up to $100K and up to 5 years prison

28 HIPAA Hospitals must ask each patient (or legal representative) if s/he agrees to disclose information Patients may opt to refuse release of information or limit the information released

29 HIPAA Media MUST have a patient’s name in order to ask for information Condition will only be provided if patient has approved release No information beyond condition will be released

30 HIPAA Hospital may only release the “Hospital Directory” –Patient’s Name –Location in the Hospital –General Condition (One Word) Only if patient agrees to release information

31 Patient Conditions Undetermined –awaiting assessment Good –vitals stable; conscious; comfortable; indicators are excellent Fair –vitals stable; conscious; uncomfortable; indicators are favorable Serious –vitals unstable; acutely ill; questionable indicators Critical –Vitals unstable; unconscious; unfavorable indicators

32 Patient Conditions Death –American Hospital Association believes release of this information is permissible –Information about the specifics of death NOT released without permission of next of kin, including time, date, or cause of death

33 Patient Conditions Unconscious –Cannot decide if they want to be included in the Hospital Directory –Hospitals can release if patient has not objected in the past and release is in the best interest of the patient –Most hospitals opt not to disclose

34 Protected Health Info Information that identifies an individual and is maintained or exchanged either electronically or by hard copy If the information has components that could identify a person, it would be protected

35 Law Enforcement Agencies Police, firefighters and other law enforcement agencies are NOT considered “covered entities” under HIPAA Fire department with ambulance service (EMS) may be covered (“hybrid agency”)

36 HIPAA Does NOT Cover HIPAA does NOT extend to –police incident reports –fire incident reports –court records –records of agencies that do not provide health care or bill for health care

37 HIPAA Does NOT Cover HIPAA does NOT extend to –family members –witnesses –neighbors –“Good Samaritans” –journalists

38 Elements of Libel Publication Identification Defamation Falsity Degree of Fault

39 Publication Means published, broadcast, or otherwise disseminated to a third person

40 Identification Story must be “of or concerning” Plaintiff

41 Defamation Harm to reputation

42 Falsity Not substantially true Gist or Sting of Story

43 Degree of Fault Prior to 1964, any error meant ‘libel’ Standard changed with New York Times v. Sullivan

44 Degree of Fault Public Persons must prove “actual malice” –knowledge of falsity or reckless disregard for the truth Private Persons must prove “negligence” –failure to follow normal standards

45 Libel Iowa Law: Retraction Statute Charlottesville Lawsuit Ames Lawsuit

46 Use of the Internet

47 Jeff Stein (319) 352-8534 office (319) 230-8988 cell (319) 352-8585 fax

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