PUBLIC INFORMATION — "Who is dying of the swine flu? It's a simple question, but the answer
has been hard to come by: Many counties across California and the
nation are refusing to grant public records requests for death
certificates of H1N1 victims," report Holly Butcher, Bethany Firnhaber and Julia James for Neon Tommy, the online news center of the Annenberg School of Communications at USC.


Death certificates can help the public see who is dying, and why, and
help monitor the performance of health officials in responding to one
of the most significant healthcare crises in decades. "We're finding that it is incredibly difficult nationwide for
a variety of reasons to get the actual names of the people who have
died of H1N1," Lucy Dalglish, executive director of the Reporter's
Committee for the Freedom of the Press, said in a telephone interview
last week.

Two counties — Los Angeles and Fresno — reversed previous denials and released death certificates of swine flu victims
to Neon Tommy in recent weeks. Ten other California counties rejected
public records requests: Alameda; Contra Costa; Marin; Napa; San
Bernardino; San Diego; San Francisco; Santa Clara; Shasta and Sonoma.

With limited vaccine supplies
and lingering uncertainty about who is most at risk from the virus, Tom
Burke of the San Francisco law firm Davis Wright Tremaine takes special
issue with county officials' refusal to release death certificates of
H1N1 victims.
"Given the high public interest in this health issue, it's precisely
the type of information people need to know now," Burke said. "It's not
only wrong; it's dangerous and counter-productive to hide the
information."

Some county officials denied requests for the documents on the basis
that they contain personal health information protected by the Health Insurance Portability and Accountability Act, which Congress passed in 1996 to keep patients' hospital records confidential.
Laura Welch, clerk of the board in San Bernardino County, wrote in a
Sept. 28 e-mail: "Even though these individual [swine flu victims] are
now deceased, the production of this health information remains
prohibited as the protection of health information survives an
individual's death."

Not true, legal experts say. County officials are confusing medical
records — which are private — with government records such as death
certificates — which are not. Access to public documents is guaranteed
at the federal level by the Freedom of Information Act and at the state level by the California Public Records Act.
"If death records are to be made public under state law, HIPAA does not
preclude their being publicly released," said Burke in a telephone
interview last week. "The person who has died certainly does not have a
privacy claim, nor does the family." Burke won a 2008 decision by the Nebraska Supreme Court, which found
that state death records are not covered by HIPAA privacy protections
and must be released to the public.