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.