The Illinois Supreme Court has agreed the operators of Cook County’s public health system improperly kept journalists at the Chicago Sun-Times from accessing data on whether hospital administrators followed legal requirements to report to police any treatment of walk-in gunshot victims.
Supreme Court Justice Michael Burke wrote the 6-1 opinion issued Nov. 30, with concurrence from justices Anne Burke, P. Scott Neville, David Overstreet, Robert Carter and Lisa Holder White. Chief Justice Mary Jane Theis wrote a dissenting opinion.
The dispute centers on the newspaper’s September 2018 Freedom of Information Act request regarding patients who presented at county-run emergency rooms with gunshot wounds, but without police accompaniment. The Sun-Times said it sought the time and date of each qualifying admission since 2015 and a corresponding time and date when hospital staff provided information about the gunshot victim to police, as required by law.
The county, however, refused to release the records, with its FOIA officer Deborah Fortier citing the federal Health Insurance Portability and Accountability Act (HIPPA), as well as a FOIA provision barring disclosure of private information.
The newspaper sued, arguing it was not seeking any personal or identifying information, so the data should be discoverable.
In November 2019 a Cook County judge rejected the newspaper’s FOIA enforcement request.
However, a state appeals panel reversed that ruling, holding both HIPAA and FOIA allowed release of the year information, so long as anything else that might identify patients was protected.
According to the majority opinion, Stroger Hospital’s trauma coordinator Justin Mis testified during summary judgment proceedings that he could only determine which gunshot victims were accompanied by police through access to each patient’s record. Fortier said the hospital couldn’t remove enough information from its trauma registry and patient logs to protect confidentiality.
On appeal, the county restated its FOIA and HIPAA arguments and alternatively said complying with the Sun-Times’ “request would be unduly burdensome,” Burke wrote, but said the majority didn’t address the latter contention because the litigation didn’t continue beyond summary judgment.
“HIPAA expressly states that a covered entity may use protected health information to create de-identified information for use by a person other than the covered entity,” Burke wrote. “Health information, once de-identified, no longer meets the standard of individually identifiable health information subject to HIPAA’s protection.”
The majority further said the record showed no evidence the county had “actual knowledge” the data the Sun-Times sought could be used to help identify individual patients. The hospital treated about 2,000 gunshot victims for the period requested, 2015 through 2018, “which diminishes the risk of identifying any one individual,” Burke wrote.
Turning to the FOIA argument, the majority held year of admission, once stripped from the context of an individual's medical records, isn’t private information. It further said the cited exemption only covers “unique identifiers.”
In remanding the case to circuit court, the majority said the county can there raise its arguments about the burdensome nature of the newspaper’s request.
In her dissent, Justice Theis said the majority improperly framed the issue and should’ve addressed whether “FOIA requires a public body to review its records to piece together information to create a new document in response to a FOIA request,” she wrote. “FOIA imposes no such requirements on the public body.”
Theis questioned whether the newspaper’s request adequately sought records “subject to production under FOIA” and noted established precedent that the requesting party musty identify a specific public record, not just general statistics. While she agreed the hospital is required to notify police of unaccompanied gunshot victims, there is no law forcing it to log those notifications.
She further said the majority’s opinion “presumably would require the hospital to create a chart that includes a reference number for the patient and the years of patient admission and law enforcement notification,” even though FOIA “does not require a public body to generate new records in response to FOIA requests.”
The Sun-Times was represented in the case by attorneys Matthew Topic, Josh Loevy, Merrick Wayne and Shelley Geiszler, of the firm of Loevy & Loevy, of Chicago.
Cook County Health and Hospitals System was represented by the Cook County State's Attorney's Office.
Justice Michael Burke was defeated in a recent election for a seat on the Illinois Supreme Court. He is completing his current term. He will be replaced on the court by Appellate Justice Mary K. O'Brien, who bested him in the November election for the seat from Illinois' Third Judicial District.
Jonathan Bilyk contributed to this report.