REFUTING MILTON Confidentiality laws in Indiana. Though all the winds of doctrine were let loose to...

REFUTING MILTON

Confidentiality laws in Indiana

Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?

John Milton 1608-1674

Why examine confidentiality law?

1Integrity of the system

2People can get hurt

(we have a duty to protect)

3Be prepared to defend the attacks

(and articulate the reasons)

4If we allow abuse,

non-experts will regulate us

5Avoid getting sued

(Whalen v. Roe, 429 US 589 (1977))

6Avoid committing a crime

(as a public servant in IC 5-14-3-10)

Reasons for confidentiality laws:

1Promote free exchange of ideas

2Protect investigation

3Protect innocent against

false (and often public) accusations

Bellevue John Does v. Bellevue School District No. 405, 189 P.3d 139 (Wa SC 2008)

4Protect those NOT falsely accused

5Protect what society deems sacred

(marriage – religion)

EXAMPLES OF CONFIDENTIALITY

General

Indiana

Juvenile prosecutions / adoptions

Search & Seizure

Search warrants sealed

Miranda

Garrity

Use-immunity in grand juries(forces disclosure)

Evidentiary & Hearsay rules

Confidential informants

Shield Laws(IC 34-46-4)

INDIANA CONFIDENTIALITY LAW

IC 5-14-3-10

(a) A public employee, a public official, or an employee or officer of a contractor or subcontractor of a public agency, except as provided by IC 4-15-10, who knowingly or intentionally discloses information classified as confidential by state statute [or declared confidential in IC 5-14-3-4(a) and (b)] commits a Class A misdemeanor.

APRA “shall nots”

(1) Those declared confidential by state statute.

(2) Those declared confidential by rule adopted by a public agency under specific authority to classify public records as

confidential granted to the public agency by statute.

(3) Those required to be kept confidential by federal law.

(4) Records containing trade secrets.

(5) Confidential financial information obtained, upon request, from a person.

(6) Information concerning research, including actual research documents, conducted under the auspices of a state educational

institution, including information:

(7) Grade transcripts and license examination scores obtained as part of a licensure process.

(8) Those declared confidential by or under rules adopted by the supreme court of Indiana.

(9) Patient medical records and charts created by a provider, unless the patient gives written consent under IC 16-39 or as

provided under IC 16-41-8.

(10) Application information declared confidential by the board of the Indiana economic development corporation under IC 5-28-16.

(11) A photograph, a video recording, or an audio recording of an autopsy, except as provided in IC 36-2-14-10.

(12) A Social Security number contained in the records of a public agency.

(13) The following information that is part of a foreclosure action subject to IC 32-30-10.5

APRA “may nots”

(1) Investigatory records of law enforcement agencies.

APRA “may nots”

(2) The work product of an attorney

APRA “may nots”

(3) Test questions, scoring keys, and other examination data used in administering a licensing examination, examination for

employment, or academic examination before the examination is given or if it is to be given again.

APRA “may nots”

(4) Scores of tests if the person is identified by name and has not consented to the release of the person's scores.

APRA “may nots”

(5) The following: (A) Records relating to negotiations between the Indiana economic development corporation, the ports of Indiana, the Indiana state

department of agriculture, the Indiana finance authority, an economic development commission, a local economic development organization (as defined in IC 5-28-11-

2(3)), or a governing body of a political subdivision with industrial, research, or commercial prospects, if the records are created while negotiations are in

progress…

APRA “may nots”

(6) Records that are intra-agency or interagency advisory or deliberative material, including material developed by a private

contractor under a contract with a public agency, that are expressions of opinion or are of a speculative nature, and that

are communicated for the purpose of decision making.

APRA “may nots”

(7) Diaries, journals, or other personal notes serving as the functional equivalent of a diary or journal.

APRA “may nots”

(8) Personnel files of public employees and files of applicants for public employment,

APRA “may nots”

(9) Minutes or records of hospital medical staff meetings.

APRA “may nots”

(10) Administrative or technical information that would jeopardize a record keeping or security system.

APRA “may nots”

(11) Computer programs, computer codes, computer filing systems, and other software that are owned by the public agency or entrusted to it and portions of electronic maps entrusted to a

public agency by a utility.

APRA “may nots”

(12) Records specifically prepared for discussion or developed during discussion in an executive session under IC 5-14-1.5-6.1.

However, this subdivision does not apply to that information required to be available for inspection and copying under

subdivision (8).

APRA “may nots”

(13) The work product of the legislative services agency under personnel rules approved by the legislative council.

APRA “may nots”

(14) The work product of individual members and the partisan staffs of the general assembly.

APRA “may nots”

(15) The identity of a donor of a gift made to a public agency

APRA “may nots”

(16) Library or archival records:

APRA “may nots”

(17) The identity of any person who contacts the bureau of motor vehicles concerning the ability of a driver to operate a motor vehicle

safely and the medical records and evaluations made by the bureau of motor vehicles staff or members of the driver licensing medical advisory board regarding the ability of a driver to operate a motor vehicle safely.

However, upon written request to the commissioner of the bureau of motor vehicles, the driver must be given copies of the driver's medical

records and evaluations.

APRA “may nots”

(18) School safety and security measures, plans, and systems, including emergency preparedness plans developed under 511

IAC 6.1-2-2.5.

APRA “may nots”

(19) A record or a part of a record, the public disclosure of which would have a reasonable likelihood of threatening public safety

by exposing a vulnerability to terrorist attack

APRA “may nots”

(20) …information concerning a customer of a municipally owned utility (as defined in IC 8-1-2-

APRA “may nots”

(21) …information about a complainant contained in records of a law enforcement agency:

APRA “may nots”

(22) Notwithstanding subdivision (8)(A), the name, compensation, job title, business address, business telephone number, job description, education and training background,

previous work experience, or dates of first employment of a law enforcement officer who is operating in an undercover capacity.

APRA “may nots”

(23) Records requested by an offender

INDIANA PRIVILEGES

Attorney-client IC 34-46-3-1

INDIANA PRIVILEGES

Physician-patient IC 34-46-3-1

INDIANA PRIVILEGES

Clergymen IC 34-46-3-1 -1

INDIANA PRIVILEGES

Spousal IC 34-46-3-1 -1

INDIANA PRIVILEGES

Counselor-client privilege IC 25-23.6-6-1

OTHER STATUTORY CONFIDENTIAL DECLARATIONS

Inspector general informant identity IC 4-2-7-8

Property tax assessment information IC 6-1.1-35-9

DOC medical inmate data to the inmates IC 11-8-5-2

Insurance Commission information IC 27-18-9-2

CASA and guardian ad litem reports IC 31-19-24-9

AOPA mediation statement IC 4-21.5-3.5-18

Victim communications IC 35-37-6-9

Child abuse reports IC 23-19-6-7

Mental health records IC 16-39-2-3

Historic preservation and archeology records IC 14-21-1-32

School assessment ratios IC 6-1.1-34-11

Carbon dioxide records IC 14-39-1-5

Department of Financial Institutions records IC 28-1-2-30

Economic Development Corporation records IC 5-28-15-8

Demutualization of Mutual Insurance Companies records 27-15-7-2

Child Fatality Review Team records IC 31-33-24-12

Prescription information IC 25-26-13-15

Address confidentiality programs records IC 5-26.5-2-3

Pharmacist data IC 12-15-35-43

Peer review committee records IC 34-6-2-99

Health Care Quality Indicator Data Program IC 16-40-4-10

Trade secrets IC 22-8-1.1-48.4

Minority and Women’s Business Enterprises records IC 4-13-16.5-7

Medical records IC 34-43-1-10

Children's Health Insurance Program records IC 12-17.6-9-7

Immunization Data Registry records IC 16-38-5-3

Law enforcement license plates IC 9-18-3-5

Real Estate Agency Relationships IC 25-34.1-10-14

Voter registration data IC 3-7-16-3218

Medicaid drug utilization review records IC 12-15-35-34

Hospital Financial Disclosure Law revelations IC 16-21-6-12

Trade secrets IC 24-2-3-2

Adoption proceedings records IC 31-19-24-6

Central Repository for Controlled Substances Data IC 35-48-7-11.1

Emergency Management and Disaster Law data IC 10-14-3-14

Department of Workforce Development IC 22-4-19-6

Patient Safety Programs IC 16-40-5-6

Toll road project records IC 8-15.5-4-6

Registration Procedures at Public Assistance Agencies IC 3-7-15-6

Address confidentiality program IC 34-26-5-7

Cancer registry IC 16-38-2-5

Communicable disease records IC 16-41-10-5

Lottery disclosures IC 4-30-14-4

Foster care placements IC 31-37-20-5

Coroner health records IC 36-2-14-21

IN SUMMARY

Don’t make it a game – it’s a game you’re going to lose.

IN SUMMARY

A quick and complete response will gain you credibility

IN SUMMARY

A quick and complete response will gain you credibility

If we don’t respond to confidentiality laws…

Though all the winds of doctrine were let loose to play upon the earth, so Truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and Falsehood grapple; who ever knew Truth put to the worse, in a free and open encounter?

John Milton 1608-1674

What is our role in Government Oversight?

Gotcha?

Create a level playing field, so the performers can perform?

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