The following letter was sent to fire Chief Brian Cummings today on behalf of the Greater Los Angeles chapter of the Society of Professional Journalists and the Press Photographers Association of Greater Los Angeles regarding the Los Angeles Fire Department’s policy to restrict the free flow of information:
Dear Chief Cummings:
This law office represents the Society of Professional Journalists – Greater Los Angeles Chapter (“SPJ/LA”) and the Press Photographers Association of Greater Los Angeles (“PPAGLA”). I write on behalf of SPJ/LA and PPAGLA to express their shared concern with recent policy changes announced by the Los Angeles Fire Department (“LAFD”) that seriously threaten the newsgathering rights of journalists and photojournalists, and endanger the public’s right to know about the functioning of its government.
The LAFD’s new policy of refusing to disclose information to the media about basic response details – including times and locations of incidents and the nature of emergencies as well as the age and gender of victims – is a sharp departure from the previous practice of the LAFD. It contravenes a directive from Mayor Antonio Villaraigosa that the LAFD “immediately resume releasing information that provides LAFD incident specifics[.]” Letter, Hon. A. Villaraigosa to Chief Cummings, Mar. 21, 2012. The timing of the policy shift is highly suspicious in light of recent revelations about inaccuracies in the LAFD’s reported response times to emergency situations.
More light must be shed on the LAFD’s practices, not less. SPJ/LA and PPAGLA condemn in the strongest terms this unlawful change in LAFD policy.
Among other things, the new LAFD policy violates: the First and Fourteenth Amendments to the United States Constitution; Article 1, Section 3(b) of the California Constitution; the California Public Records Act, Government Code §§ 6250, et seq.; and Penal Code § 409.5(d) (requiring media access to disaster scenes and emergencies). The LAFD is subject to the California Public Records Act (“CPRA”). Gov’t C. § 6252(d). The CPRA requires immediate access to all communications related to the LAFD’s functions while it is conducting business, which is around-the-clock. Gov’t C. §§ 6252(e), 6253(a),
6253.9(a). The CPRA also provides that an agency shall disclose basic information such as “the time, substance and location of all complaints or requests for assistance received by the agency and the time and nature of the response thereto … the time and date of the report, the name and age of the victim, the factual circumstances surrounding the … incident, and a general description of any injuries, [or] property … involved.” Gov’t C. § 6254(f)(2).
We are aware of your March 20, 2012 posting asserting that the LAFD is a “hybrid entity” under the Health Insurance Portability and Accountability Act (“HIPAA”). Nothing in HIPAA or the HIPAA Privacy Rule mandates or supports the LAFD’s new media blackout policy. Most importantly, the information that the LAFD used to disclose routinely – but now refuses to disclose – is simply not private. A fire is not private. A car crash on a public street is not private. The California Supreme Court held, for example, that a car accident victim does not have a reasonable expectation of privacy in the existence of an accident and what could be viewed from a public roadway. Shulman v. Group W Productions, Inc., 18 Cal. 4th 200, 232-233 (1998). Nothing in HIPAA restricts the dissemination of information about the times and locations of incidents, the nature of emergencies or the age and gender of victims. HIPAA plainly only applies to “individually identifiable health information” – i.e., not the kind of information at issue here. See, e.g., 45 C.F.R. § 164.500 (2000). Moreover, HIPAA only applies to the “covered functions” – i.e., the “health care components” – of “hybrid entities.” 45 C.F.R. §§ 164.501, 164.504(b) (2000). Even if “individually identifiable health information” obtained during a call could conceivably be covered by HIPAA – which SPJ/LA and PPAGLA do not concede is the case – merely receiving and responding to a emergency call is not a “covered function.” Disclosing the location, time, nature and de-identified information about the call does not implicate HIPAA in any sense, and may not serve as a justification for the LAFD’s new policy.
The public interest is served by understanding what the LAFD does and how it does it. The public disclosure also is served by learning, through the media, about emergency situations. The law requires that the LAFD abandon its ill-conceived effort to keep the public in the dark.
Very truly yours,
BOSTWICK & JASSY LLP
(Copies of this letter were also sent to Mayor Antonio Villaraigosa, City Attorney Carmen Trutanich and Councilman Mitch Englander, chair of the Public Safety Committee.)
Photo: An LAFD training session at Station 88 | Photo by Zach Behrens