THE STATE OF NEW HAMPSHIRE
BELKNAP COUNTY SUPERIOR COURT
DOCKET #: 12-CV-193
UNION LEADER CORPORATION
V
CITY OF LACONIA
ORDER
The underlying facts surrounding this litigation are as follows. On January 28, 2012 the City of Laconia, through its firefighters, police, EMTs, and transport services, assisted a resident of the Millview Apartment complex in connection with a fire at that facility which, the Plaintiff alleges on information and belief, was started by this resident smoking a cigarette while using an oxygen tank. It is reported that the Millview Apartment complex is owned by the Laconia Area Community Land Trust, Inc., a quasi-public, non-profit entity providing housing to New Hampshire residents. The Plaintiff sought the name of the resident who purportedly started the fire and was treated for injuries by various medical personnel. The only request by the Plaintiff was for the name of the individual that was in fact included as part of the police department's incident report of the fire. Although a copy of the incident report was forwarded to the Plaintiff, any information identifying the individual who purportedly caused the fire was redacted. When the Defendant refused to divulge this information, the within lawsuit was brought.
[2] In its Answer to the Plaintiff's petition for disclosure of the name of the requested resident of the apartment complex, the Defendant responded as follows:
The City appropriately declined to disclose the requested information for three reasons: (1) pursuant to HIPAA, which is applicable to the City and its responding personnel as a health care provider, which does not allow for such a disclosure of protected health information; (2) pursuant to RSA 91-A:5 IV and applicable case law regarding an invasion of privacy, as the burn victim has a discernible privacy interest in not having his name released, and this interest is not outweighed by the de minimis public interest in that information; and (3) the burn victim declined to assent to his name being released.
With respect to the first stated reason for non-disclosure, the Defendant takes the position that under HIPAA, no matter what the circumstances, if an individual receives medical care by one of its employees or agencies, that federal law completely protects the name of the individual. At a hearing held on the Plaintiff's petition on July 2, 2012, the Court gave the extreme example of a bank robber fleeing from the police and being shot in the incident. The Defendant argues that even under that scenario it could not disclose the name of the criminal if he or she is medically treated.
The summary of HIPAA submitted to the Court by the Defendant clearly states in its introduction that the law was passed "for the protection of certain health information." Logic would seem to indicate that "health information" would not include the name of the patient, however the Defendant has cited in its pleadings a section of that elongated federal law that also seems to include identity. The parties disagree as to whether or not the City of Laconia is a "covered entity" under that law. Under the facts of this case, given the stated purpose of HIPAA, the Court finds and rules that disclosing the name of the individual as it appears on the police incident report does not violate that law.
[3] The second reason offered by the Defendant for not releasing the name of the person who apparently caused the fire and was treated for burn injuries is that this individual has a "discernible privacy interest." However even the Defendant recognizes that a balancing test must be conducted by the Court to determine whether or not the individual's privacy interest is outweighed by the public interest in the release of his name. See Lamy v. N.H. Public Utilities Commission, 152 N.H. 106 (2005). In conducting such a balancing test in this case, the Court has no difficulty finding that there is a legitimate public interest that trumps the individual's right of privacy.
The Court's finding in this regard is based on two factors. First, an individual smoking a cigarette while using an oxygen tank in a facility wherein other people reside raises general safety issues and therefore is of public interest. Secondly, the Millview Apartment complex is not a private residential building; rather, it arguably is part of the public domain in the sense that it is a non-profit entity providing housing to New Hampshire residents under some type of quasi-public control. Again, that fact weighs heavily for disclosure as it might result in investigation to determine whether or not past practices were lax or whether future measures should be employed so that such an incident does not reoccur. The Court's ruling would not be the same if the Plaintiff sought the name of all of the residents in the apartment complex who played no part in the cause of the fire.
The last reason offered by the Defendant for non-disclosure is the fact that the individual did not want his name released to the press. That is by far the weakest argument the Defendant can make, as presumably most people who are involved in some type of incident involving fire and police do not want their names disclosed. The [4] public interest that the Court has alluded to herein outweighs the individual's expressed right of privacy.
While the Court appreciates the fact that the Defendant believed it had to take the position of non-disclosure based on the HIPAA regulations, the alleged right-to-know argument is surprising. Every day in newspapers across the state and country, there are reports of motor vehicle accidents with the name of the individuals involved prominently announced even though they may have received significant injuries and have been medically treated. There is a general public interest in such accidents, and there certainly is no exemption in the right-to-know law, or in HIPAA for that matter, for motor vehicle incidents.
In summary, for all the reasons set forth herein, the Court grants the Petition for Access to Public Records and Information filed under the Right-to-Know Law and orders the Defendant to disclose the name only of the individual who purportedly caused the fire at the Millview Apartment Complex on January 28, 2012 and was treated for his injuries.
So ordered.