South Carolina Attorney General Issues Opinion That Information in State Prisoners’ Death Certificates Is Public Information
by Matt Clarke
On May 14, 2021, the Office of the Attorney General (AG) of South Carolina issued an opinion that information relating to the death of state prisoners contained in their death certificates is public information subject to disclosure under the state’s Freedom of Information Act (FOIA), S.C. Code § 30-4-30(A)(l), and is not exempted from disclosure.
In response to some prison staff’s complaints that the DOC was violating privacy mandates contained in the federal Health Insurance Portability and Accountable Act (HIPAA), 42 U.S.C. § 1320d-2(d)(2) by releasing the names and causes of death of prisoners who died in state custody, South Carolina Department of Corrections (DOC) Director Bryan Stirling requested an AG’s opinion on whether the DOC was required to withhold the information. The DOC began withholding the information, a move that earned it derision in the media.
“What is the prison system going to do after an execution, say an unnamed inmate was executed for some crimes he committed long ago?” asked veteran media attorney Jay Bender who represents both the South Carolina Press Association and The State Media Company. “The notion that an inmate who dies has a right to privacy is bizarre because your right to privacy dies with you.” The detailed and thoughtful analysis in the opinion largely agreed with Bender. It first noted that the state Supreme Court had previously differentiated between autopsy reports, which clearly are medical records and thus exempt from FOIA disclosure, and death certificates, which are not medical records even though they may contain some medical information regarding the cause of death. Perry v. Bullock, 761 S.E.2d 251 (2014). Based on this, a list of prisoners’ names and causes of death are not medical records.
The opinion went on to note that information about prisoner deaths was of great importance and an issue in which the public had a strong interest.
Further, a prisoner has a diminished right to privacy while in prison and any right to privacy is a personal right which does not survive a person’s death. Because of this, a list of prisoners’ names and causes of death must be disclosed under FOIA.
The opinion also found that, whereas the DOC is subject to the requirements of HIPAA, and HIPAA’s privacy rules prohibit the disclosure of a persons’ medical information for 50 years after death, HIPAA itself contains an exception from nondisclosure for the reporting of deaths. Further, Attorney General opinions from Nebraska, Ohio and Texas had all found prisoner death certificates to be exempted from HIPAA privacy requirements. Therefore, the opinion was that the names and causes of death of prisoners was not exempted from disclosure under FOIA and such disclosure was mandatory.
Sources: A.G.’s Opinion, dated May 14, 2021; thestate.com