a. Communicable or Infectious Disease Reports
A number of exemptions exist for communicable or infectious disease reports. See, e.g., s. 381.0031(6), F.S. (information submitted in public health reports to Department of Health is confidential and is to be made public only when necessary to public health); s. 384.29, F.S. (sexually transmissible diseases). See Ocala Star-Banner v. State, 697 So. 2d 1317 (Fla. 5th DCA 1997) (upholding court order sealing portions of a battery prosecution case file pertaining to transmission of sexually transmissible diseases to victims due to s. 384.29, F.S., confidentiality requirements). However, notwithstanding any other provision of law to the contrary, the Department of Health, the Department of Children and Families, and the Agency for Persons with Disabilities may share confidential information on any individual who is or has been the subject of a program within the jurisdiction of each agency. Section 402.115, F.S. The shared information remains confidential or exempt as provided by law. Id. See AGO 98-52.Results of screenings for sexually transmissible diseases conducted by the Department of Health in accordance with s. 384.287, F.S., may be released only to those persons specified in the exemption. Section 384.287(5), F.S.
Notification to an emergency medical technician, paramedic or other person that a patient they treated or transported has an infectious disease must be done in a manner to protect the confidentiality of patient information and shall not include the patient’s name. Section 395.1025, F.S.
There are strict confidentiality requirements for test results for HIV infection; such information may be released only as expressly prescribed by statute. See ss. 381.004, and 384.287(6), F.S. Any person who violates the confidentiality provisions of s. 381.004, F.S., and s. 951.27, F.S., is guilty of a first degree misdemeanor. Section 381.004(5)(b), F.S. And see s. 381.004(5)(c), F.S., establishing felony penalties for disclosure in certain circumstances. Thus, information received by the clerk of court indicating that an individual has complied with an order to be tested for HIV and the attendant test results “would appear to be confidential and should be maintained in that status.” AGO 00-54. Cf. Florida Department of Corrections v. Abril, 969 So. 2d 201 (Fla. 2007) (an entity that negligently violates a patient’s right of confidentiality in disclosing the results of HIV testing may be held responsible in a negligence action).
Results of HIV and hepatitis tests performed on persons charged with certain offenses may not be disclosed except as authorized in the exemption. Section 960.003, F.S. See also s. 951.27, F.S. (limited disclosure of infectious disease test results, including HIV testing pursuant to s. 775.0877, F.S., of inmates as provided in statute).
b. Hospital Records
(1) Public Hospitals
Like other governmental agency records, public hospital records are subject to disclosure in the absence of a statutory exemption. For example, the court in Tribune Company v. Hardee Memorial Hospital, No. CA 91-370 (Fla. 10th Cir. Ct. August 19, 1991), available online in the Cases database at the open government site at MyFloridaLegal.com, held that a settlement agreement entered in a lawsuit against the public hospital alleging that the hospital had swapped babies was a public record. The court held that the agreement was subject to disclosure despite a confidentiality provision contained within the agreement and claims by the hospital that it constituted work product. Cf. Bert Fish Foundation, Inc. v. Southeast Volusia Hospital District, No. 10-20801-CINS (Fla. 7th Cir. Ct. December 22, 2010), available online in the Cases database at the open government site at MyFloridaLegal.com (governing boards of hospital district and medical center violated the Sunshine Law when they held numerous closed meetings to discuss an affiliation or merger with a healthcare corporation). For information on exemptions applicable to public hospitals, please refer to Appendix D and the Index. Cf. AGO 14-10, noting that an exemption in s. 395.3035(5), F.S., for certain records and meetings relating to a “strategic plan” for operation of a hospital must be narrowly construed and would not apply to an evaluation conducted pursuant to s. 155.40(5), F.S., for purposes of the sale or lease of a public hospital.(2) Private Hospitals/Private Organizations Operating Public Hospitals
A private organization leasing the facilities of a public hospital is acting on behalf of a public agency and thus constitutes an agency subject to open records requirements in the absence of statutory exemption. See Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 729 So. 2d 373 (Fla. 1999).Section 395.3036, F.S., however, provides that records of a private entity that leases a public hospital or other public health care facility are confidential and exempt from disclosure when the public lessor complies with the public finance accountability provisions of s. 155.40(18), F.S., with respect to the transfer of any public funds to the private lessee and when the private lessee meets at least three of five criteria set forth in the exemption. See Indian River County Hospital District v. Indian River Memorial Hospital, Inc., 766 So. 2d 233 (Fla. 4th DCA 2000) (nonprofit corporation leasing hospital from hospital district). And see Baker County Press, Inc. v. Baker County Medical Services, Inc., 870 So. 2d 189 (Fla. 1st DCA 2004), upholding the constitutionality of the exemption. Cf. Memorial Hospital-West Volusia, Inc. v. News-Journal Corporation, 927 So. 2d 961 (Fla. 5th DCA 2006) (private corporation that purchased hospital from public hospital authority not subject to Public Records Act); and s. 155.40(21), F.S., describing and construing the term “complete sale” as applied to a purchase of a public hospital by a private entity.
c. Patient and Clinical Records
(1) Patient and Clinical Records Generally
Patient records are generally protected from disclosure. For example, patient records in hospitals and surgical facilities licensed under Ch. 395, F.S., are confidential and may not be disclosed without the consent of the patient, or the patient’s legal representative, except as provided in the statute. Section 395.3025(4), (5), (7) and (8), F.S. And see s. 119.0712(1), F.S. (personal identifying information contained in records relating to an individual’s personal health or eligibility for health-related services held by the Department of Health); and s. 400.022(1) (m), F.S. (nursing home residents’ medical and personal records).Patient clinical records are also protected. See, e.g., s. 393.13(4)(i)1., F.S. (central client records of persons with developmental disabilities); s. 394.4615(1), F.S. (clinical records of persons subject to “The Baker Act”); and s. 397.501(7), F.S. (individuals receiving services from substance abuse service providers). And see ss. 397.6760(1), F.S. (petitions for involuntary assessment and stabilization and related court records filed with a court under Part V of Ch. 397, F.S.[substance abuse]); and 394.464(1) (petitions for voluntary and involuntary admission for mental health treatment, courts orders and related records filed with or by a court under the Baker Act). Cf. s. 381.987, F.S. (patient or caregiver identifying information in the medical marijuana use registry).
(2) Disclosure of Patient Records
Patient medical records made by health care practitioners may not be furnished to any person other than the patient, his or her legal representative or other health care practitioners and providers involved in the patient’s care and treatment without written authorization, except as provided by ss. 440.13(4)(c) and 456.057, F.S. Section 456.057(7)(a), F.S. See State v. Johnson, 814 So. 2d 390 (Fla. 2002) (state attorney’s subpoena power under s. 27.04, F.S., cannot override notice requirements of s. 395.3025[4][d], F.S., which provides for disclosure of confidential patient records upon issuance of subpoena and upon proper notice to the patient or the patient’s legal representative). Cf. s. 408.051(3), F.S., permitting a health care provider to release or access an identifiable health record of a patient without the patient’s consent for use in the treatment of the patient for an emergency medical condition, as defined in s. 395.002(8), F.S., when the health care provider is unable to obtain the patient’s consent or the consent of the patient representative due to the patient’s condition or the nature of the situation requiring immediate medical attention.The recipient of patient records, if other than the patient or the patient’s representative, may use such information only for the purpose provided and may not disclose any information to any other person or entity, unless expressly permitted by the written consent of the patient. See ss. 395.3025(7) (hospital patient records) and 456.057(11), F.S. (health care practitioner patient records). Thus, predeath medical records in the possession of the medical examiner are not subject to public inspection. Church of Scientology Flag Service Org., Inc. v. Wood, No. 97-688CI-07 (Fla. 6th Cir. Ct. February 27, 1997), available online in the Cases database at the open government site at MyFloridaLegal.com.
Similarly, clinical records maintain their confidentiality even when disclosed to another agency such as the clerk of the circuit court. AGO 91-10. And see Sarasota Herald-Tribune v. Department of Children and Families, No. 2001-CA-002445 (Fla. 2d Cir. Ct. April 8, 2002), available online in the Cases database at the open government site at MyFloridaLegal.com (confidentiality of clinical record is maintained even though Department of Children and Families may have filed portions of the records in court proceedings throughout the state; department has no authority to waive confidentiality of clinical records). Cf. AGO 01-69 (documents submitted to the statewide provider and managed care organization claim dispute resolution program pursuant to s. 408.7057, F.S., found to be subject to disclosure after redaction of patient-identifying information).
d. Emergency Medical Services
With limited exceptions, s. 401.30(4), F.S., provides, in relevant part, that “[r]ecords of emergency calls which contain patient examination or treatment information are confidential and exempt from the provisions of s. 119.07(1) and may not be disclosed without the consent of the person to whom they pertain.” Such records may be released only in certain circumstances and only to the persons and entities specified in the statute. AGO 86-97. Thus, a city commissioner is not authorized to review records of an emergency call by the city’s fire-rescue department when those records contain patient examination and treatment information, except with the consent of the patient. AGO 04-09. See Lee County v. State Farm Mutual Automobile Insurance Company, 634 So. 2d 250 (Fla. 2d DCA 1994), upholding the county’s right to require the patient’s notarized signature on all release forms, to ensure that these confidential records are not improperly released. And see AGO 09-30 (entire record of emergency call containing patient examination and treatment information which is maintained as required by s. 401.30[1], F.S., is confidential and exempt; reports containing statistical data, required by the Department of Health, are public records and must be made available for inspection and copying following redaction of any patient-identifying information).However, s. 401.30(4), is not violated by the city attorney, or an attorney under contract to the city, and other city officials having access to the city fire-rescue department’s records of emergency calls that contain patient information when such access is granted to such individuals in carrying out their official duties to advise and defend, or assess the liability of, the city in a possible or anticipated claim against the city arising out of the provision of such care. AGO 95-75. And see AGO 08-20 (s. 401.30[4], F.S., permits emergency medical services transportation licensee to release records of emergency calls including patient’s name, address, and pertinent medical information to local law enforcement agency that does not provide regulatory or supervisory responsibility over licensee).
