Posted on Dec 16, 2003 in Formal Opinions

Opinion Letter No. 03-19
December 16, 2003
Records of Deceased Persons

A state legislator asked the OIP for an opinion on “whether living or deceased persons’ names may be obtained from State records and put on public display” on a monument to the memory of victims of Hansen’s disease to be erected in Kalaupapa. Soon thereafter, a chief of police and a news reporter wrote to the OIP concerning the reporter’s request for access to the records of deceased police officers.

The OIP reconsidered the treatment of information about deceased persons, which it had addressed in many previous opinions: OIP Op. Ltr. Nos. 90-13, 90-18, 90-26, 91-32, 95-21, and 97-2. Those previous opinions were issued before the appearance of 45 C.F.R. Parts 160 and 164, the medical privacy rules promulgated under the Administrative Simplification subtitle of the Health Insurance Portability and Accountability Act of 1996, Public Law 104-191 (“HIPAA rules”), and before several recent Freedom of Information Act cases showing a trend toward recognizing a privacy interest for deceased persons.

Section 92F-13(4), HRS, allows an agency to withhold records that are protected from disclosure pursuant to federal law. Thus, under the UIPA, an agency may withhold health information about either living or deceased persons when HIPAA rules bar disclosure. The HIPAA rules’ protection of the privacy of health information continues after a person’s death, for as long as a health provider holds the information.

The OIP concluded that agencies that are not directly regulated by the HIPAA rules should also withhold health information about deceased persons under the UIPA’s privacy exception to disclosure, because the HIPAA rules set a new standard for privacy of medical records. For health records older than those the HIPAA rules were intended to apply to, though, the OIP concluded that the privacy exception required balancing the deceased person’s remaining privacy interest (which would diminish over time) against the public interest in the records. Eventually, historical health records become public.

The OIP also concluded that deceased persons retain some privacy interest in non-health information, but that privacy interest diminishes over time. For non-health records, as for older health records, the privacy exception requires balancing the passage of time against the sensitivity of the records to determine the remaining privacy interest, and then balancing the remaining privacy interest against the public interest in disclosure.

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