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S.C. Supreme Court ignored FOIA in autopsy ruling

Posted: July 18, 2014 9:08 a.m.
Updated: July 21, 2014 5:00 a.m.

Let’s make something perfectly clear: The S.C. Freedom of Information Act (FOIA) is not dead, but the S.C. Supreme Court is sure acting like they’re trying to kill it.

OK, perhaps I’m being a bit too harsh, but last week’s 4-1 ruling concluding that autopsy reports are medical records exempt from the FOIA sure feels like another nail in the open government coffin.

On June 30, I wrote that the  state Supreme Court’s ruling on meeting agendas was wrong in that it leaves open the possibility of public bodies never publishing an agenda ever again. Last week, I wrote that the Court’s ruling in the House Speaker Bobby Harrell could -- but hopefully won’t -- lead to having all grand jury matters secret, even if those matters don’t take place in the grand jury room.

And here we are again.

I think you can tell -- from Robert Ariail’s cartoon on the top of this page to S.C. Press Association (SCAP) Executive Director Bill Rogers’ op-ed on Friday along with that day’s editorial about President Barack Obama’s not-so-transparent administration -- we are very serious about these matters.

And we are serious about them not for our own sake as journalists, but for your sake. You have the right to know what your city or county council or school board is planning to discuss and vote on. You have the right to be able to walk into a courtroom and know whether or not the state’s top prosecutor is going to be in charge of an inquiry into possible criminal activity by a sitting legislator. For that matter, you have the right to have someone other than that legislator’s peers determine whether or not he or she should be punished for alleged crimes.

And you certainly have the right to know exactly what a coroner has concluded about someone’s death -- and why they made that conclusion -- when there are questions as to exactly what happened. Especially when that death was caused by a sworn law enforcement officer.

That was the case at hand before the S.C. Supreme Court on July 15. Our journalistic neighbors to the south, The Sumter Item, had been covering a story about a police-related shooting in September 2010 that killed a man named Aaron Lee Jacobs. As Rogers pointed out in his op-ed Friday, the Item reported that the officer shot Jacobs in the back, despite the Sumter Police Department’s claim that the officer fired in self-defense.

Officers thought Jacobs was a suspected carjacker. After Jacobs’ death, however, officers arrested a teenage boy for the carjacking. They’d confronted and shot the wrong man.

The Sumter Police Department did not just refuse to release an incident report in the case (claiming that because the S.C. Law Enforcement Division  [SLED] was investigating), but claimed there wasn’t an incident report to produce.

With no help from SLED, the Item turned to Sumter Coroner Harvin Bullock for a look at Jacobs’ autopsy report. Bullock and Sumter County Attorney Johnathan Bryan claimed autopsy reports are medical records -- a claim supported by others, including S.C. Attorney General Alan Wilson, but rejected by the SCPA and open government advocates.

As it turns out, the Item was able to obtain the report from elsewhere -- a report that concluded the officer shot Jacobs in the back.

Autopsy reports, the government and state Supreme Court contend, are medical records because they contain medical information. Bullock even cited the Health Insurance Portability and Accountability Act (HIPAA) as requiring him to block access to the report. However, a review of the HIPAA specifically points out that, according to the Association of Health Care Journalists, autopsy records “are not protected health information to the extent they are maintained by state agencies. In addition, if a state FOIA law designates death records and/or autopsy reports as public information that must be disclosed, covered entities may disclose that protected health information without an authorization.”

So, let’s check the S.C. FOIA. Section 30-4-40 covers matters exempt from disclosure. Under that section, paragraph 18 states “Photographs, videos, and other visual images, and audio recordings of and related to the performance of an autopsy, except that the photographs, videos, images, or recordings may be viewed and used by” specific people listed elsewhere in the state code.

As the SCPA points out in its “plain English” explanation of this paragraph, the FOIA does not exempt the reports themselves, only those photos, videos, other images and recordings associated with them.

So, bottom line, the S.C. Supreme Court completely ignored the S.C. FOIA.

The majority in its opinion said -- as it pretty much did on the agenda ruling several weeks ago -- that those who don’t like their conclusion should get the legislature to change the law.

That should definitely be done in response to the agenda ruling, as I pointed out several weeks ago. In this case, though, the FOIA is already clear enough: by simple omission in its exemption section, autopsy reports in and of themselves are not exempt.

Privacy advocates may claim a newspaper shouldn’t be poking around an autopsy. But non-pertinent information can be blacked out. We need to shed this particular layer of privacy in order to shed light where it’s needed.


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