Are an Arkansas coroner's COVID-19 death investigation records public, including identifying and medical info?

Plain-English summary

Representative Les Warren asked whether records concerning COVID-19 deaths, including identifying details and medical information about the deceased and contact information for next of kin, could be disclosed from a county coroner’s file. The Attorney General answered under Arkansas’s coroner-records statute: investigation records were confidential until the coroner issued a final report. After that, the records were public except for confidential medical information gathered during the investigation that the final report did not quote. Medical information quoted in the final report was public with it.

The AG found that the general county-records provision did not displace the more specific coroner-records statute, and that the Personal Information Protection Act did not apply to counties. Footnote 3 addressed HIPAA separately: the AG called that federal law outside the usual scope of her opinions and cited earlier guidance referring fact-specific HIPAA questions to federal authorities. The opinion did not resolve HIPAA’s application to a particular coroner’s file.

The AG also declined to decide whether constitutional privacy required withholding a particular record. She said the McCambridge balancing test depended on facts she could not find in an advisory opinion. Footnote 14 cited later cases addressing that right, including an Eighth Circuit concurrence in Dillard that called the right “dead” in that circuit. The AG did not adopt that description as her holding.

Currency note

This opinion was issued in 2021. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

When did coroner investigation records become public under this opinion? The cited statute kept them confidential until the coroner issued a final report. Once issued, the report and investigation records were generally open, subject to the medical-information exception.

What happened to medical information collected during an investigation? The statute kept confidential medical information closed unless it was quoted in the final report. The AG said medical information quoted there was subject to disclosure with the report.

Did the AG decide whether HIPAA blocked disclosure?
No. Footnote 3 said HIPAA was outside the usual scope of the office’s opinions and cited a prior opinion referring its application to particular facts to federal authorities.

Did the AG decide the constitutional privacy issue?
No. She said applying the McCambridge test required a fact-specific balance that she could not perform in an advisory opinion. Footnote 14 cited subsequent cases, but did not decide that question for these records.

Did the answer include next-of-kin identifying information? The question expressly included that information. The AG answered that the quoted medical information and identifying information the representative mentioned were subject to public disclosure under the relevant statutes, while leaving constitutional privacy unresolved.

Background and statutory framework

Ark. Code Ann. § 14-15-304(a) protected records during a coroner’s investigation until the final report; subsection (b) continued to protect confidential medical information except as quoted in that report. The AG treated this specific provision as controlling over the general county-records provision in § 14-14-110. The Personal Information Protection Act addressed businesses rather than counties. She separately noted that the federal constitutional privacy test described in McCambridge v. City of Little Rock required facts beyond the advisory record.

Citations

Statutes:

• Ark. Code Ann. § 14-15-304(a)-(b) (Repl. 2013)
• Ark. Code Ann. § 14-14-110 (Repl. 2013)
• Ark. Code Ann. § 4-110-101 (Personal Information Protection Act)
• Pub. L. 104-191 (HIPAA, footnote 3)

Cases:

• McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989)
• Hopkins v. City of Brinkley, 2014 Ark. 139, 432 S.W.3d 609 (2014)
• Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, 264 S.W.3d 465 (2007)
• Dillard v. O’Kelley, 961 F.3d 1048 (8th Cir. 2020)
• Searcy Farm Supply, LLC v. Merchants & Planters Bank, 369 Ark. 487, 256 S.W.3d 496 (2007)
• Donoho v. Donoho, 318 Ark. 637, 887 S.W.2d 290 (1994)

Source

• Landing page: https://arkansasag.gov/divisions/opinions-foia/attorney-general-opinions-search/

Original opinion text

STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE

Opinion No. 2020-041

January 27, 2021

The Honorable Les A. Warren
State Representative
Courtyard Plaza, Suite 3

534 Ouachita Avenue

Hot Springs, AR 71901

Dear Representative Warren:

This is in response to your request for an opinion on the following question concerning the release of coroners’ records:

Are the records of county coroners regarding people who have died of COVID-19, or whose deaths are COVID-19 related, subject to public disclosure and release under the Arkansas FOIA?

As background for this question, you state:

It is understood that coroners’ records are generally considered public information. This question is directed only toward COVID-19 deaths. This question specifically relates to all identifying information and medical information of the deceased and identifying and contact information of the next of kin contained in a coroner’s file.

You ask that I consider your question in light of a number of factors, including the application of McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989); Ark. Code Ann. §§ 14-14-110 (county records), 4-110-101 (the Personal Information Protection Act), and 14-15-304 (coroners’ records); Pub. L. 104-191 (HIPAA), and HIPAA-related guidance issued by the Arkansas Department of Health.

323 CENTER STREET, SUITE 200 * LITTLE ROCK, ARKANSAS 72201
TELEPHONE (501) 682-2007 * FAX (501) 682-8084
INTERNET WEBSITE * http://www.ag.state.ar.us/

The Honorable Les A. Warren
State Representative

Opinion No. 2020-041

Page 2

RESPONSE

Although your question about coroners’ records is asked generally, I gather from the stated background that you are primarily concerned about medical information that is quoted in a coroner’s final report of a death investigation. With that understanding, it is my opinion that the answer to your question is “yes,” that is, the quoted medical information and the identifying information you mention is subject to public disclosure under the relevant statutes.

You also ask me to consider whether a constitutional right to privacy prohibits disclosure. But based on the limited facts before me, I cannot answer this constitutional question, which requires a balancing of interests under the particular facts.

DISCUSSION

As you appear to acknowledge in your request for my opinion, a coroner’s records are generally subject to disclosure once the coroner issues his “final report”:

Records gathered and created during the course of a coroner’s investigation shall be confidential and deemed exempt from the Freedom of Information Act of 1967, § 25-19-101 et seq., but only until such time that the coroner issues his or her final report.'

The only exception to disclosure under this statute relates to “confidential medical information”:

Confidential medical information gathered during the course of the investigation shall remain exempt from public inspection and copying except as quoted in the coroner’s final report.”

This is the most relevant statute when addressing the disclosure of coroners’ records under Arkansas law.? None of the other statutory provisions you cite are controlling in this situation.

' Ark. Code Ann. § 14-15-304(a) (Repl. 2013) (emphasis added). 2 Id. at § 14-15-304(b).

3 You included HIPAA (Pub. L, No. 104-191, codified as amended in scattered section of Titles 18, 26, 29, and 42 of the United States Code) among the factors for my consideration in addressing

The Honorable Les A. Warren
State Representative

Opinion No. 2020-041

Page 3

You have asked that I consider Ark. Code Ann. § 14-14-110 (Repl. 2013). This statute, which provides some limitations on disclosure, addresses county records generally.* But the above statute—Ark. Code Ann. § 14-15-304—specifically addresses coroners’ records. Accordingly, section 14-15-304 controls as the specific statute on the subject, and the limitations in section 14-14-110 do not apply?

You also ask that I consider Ark. Code Ann. § 4-110-101, which is part of the Personal Information Protection Act.® This Act does not apply in the context of your question concerning county coroners’ records. The Act requires security measures for the protection of computerized data maintained by individuals and businesses, and counties are not included in the Act’s definition of “business.”

The controlling statute, then, is Ark. Code Ann. § 14-15-304. With the exception of “confidential medical information,” this statute plainly requires public access to all of the coroner’s death investigation records when the coroner’s final report is issued. Regarding “confidential medical information,” this refers to the “medical

your question. This federal law is outside the usual scope of an opinion from this office. See Op. Att’y Gen. 2008-110 (noting that the applicability of HIPAA to a particular set of facts is a matter that should be referred to the U.S. Department of Education, the U.S. Department of Health and Human Services, or the Office of U.S. Attorney).

4 Section 14-14-110(b) states: “Personal records, medical records, and other records which relate to matters in which the right to individual privacy exceeds the merits of public disclosure shall not be available to the public unless the person they concern requests they be made public.”

5 See Searcy Farm Supply, LLC v. Merchants & Planters Bank, 369 Ark. 487, 492, 256 S.W.3d 496, 501 (2007) (“[I]t is blackletter law for statutory construction to give effect to the specific statute over the general.”); Donoho v. Donoho, 318 Ark. 637, 639, 887 S.W.2d 290, 291 (1994) (“[A] general statute does not apply when there is a specific statute covering a particular subject matter.”); Op. Att’y Gen, 2001-373.

® Ark. Code Ann. § 4-110-101-108 (Repl. 2011 and Supp. 2019).

7 Id. at § 4-110-103(2) (Supp. 2019).

The Honorable Les A. Warren
State Representative

Opinion No. 2020-041

Page 4

information” that is gathered during the investigation.* This information remains closed to the public “except as quoted in the ... final report.’?

Turning to your question concerning those who have died of COVID-19, or whose deaths are COVID-19 related, I take it that the question regarding the release of the deceased’s medical information and the other information you mention arises because some medical information is quoted in the coroner’s final report. As explained above, section 14-15-304 makes that report—and medical information quoted therein—subject to public disclosure.'!° Any medical information gathered during the investigation that is not quoted in the report is plainly exempt from disclosure.!!

You have raised a constitutional question regarding the information’s release. In the case you mention, McCambridge v. City of Little Rock,'* the Arkansas Supreme Court indeed recognized a federal constitutional right to privacy in “personal matters.”!> The Arkansas Supreme Court has not applied this right since McCambridge."

8 See Ark, Code Ann. § 14-15-301 (Repl. 2013) (“When a death is reported to the coroner, he or she shall conduct an investigation concerning the circumstances surrounding the death of an individual and gather and review background information, including, but not limited to, medical information and any other information which may be helpful in determining the cause and manner of death.” (Emphasis added)). In carrying out his investigation into the cause and manner of death, a coroner is authorized to issue subpoenas to secure pertinent medical records. Ark, Code Ann. § 14-15-302(b)(2) (Repl. 2013).

9 Ark. Code Ann. § 14-15-304(b).
10 Ig.

"| See id. (“Confidential medical information gathered during the course of the investigation shall remain exempt from public inspection and copying except as quoted in the coroner’s final report.” (Emphasis added)).

"2 298 Ark. 219, 766 S.W.2d 909 (1989).
'3. 298 Ark, at 229-31, 766 S.W.2d at 914-15.

"| See, e.g., Hopkins v. City of Brinkley, 2014 Ark. 139, 11, 432 S.W.3d 609, 616 (2014) (citing McCambridge, but holding that plaintiff lack standing and failed to present evidence of a “personal matter”); Pulaski Cty. v. Ark. Democrat-Gazette, Inc., 371 Ark. 217, 221, 264 S.W.3d 465, 468 (2007) (holding that plaintiff had waived any right to privacy). Cf Dillard v. O’Kelley, 961 F.3d 1048 (8th Cir. 2020) (reversing a denial of qualified immunity in a § 1983 action, finding no clearly established federal constitutional right to informational privacy); id. at 1057 (Grasz, J., concurring

The Honorable Les A. Warren
State Representative

Opinion No. 2020-041

Page 5

Regardless, the test applied in McCambridge is a fact-dependent one. And | cannot act as a factfinder in issuing opinions.'!° Therefore, I cannot answer the constitutional question suggested in your opinion request.

Sincerely,

ee J Koblity

LESLIE RUTLEDGE
Attorney General

in part and concurring in the result) (“The constitutional right to informational privacy in the Eighth Circuit is dead.”).

'S See Op. Att’y Gen. 2019-026 (and opinions cited therein).