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State ex rel. Adams County Historical Soc'y v. Kinyoun

Supreme Court of Nebraska

May 15, 2009, Filed

No. S-08-339.

Opinion

 [*750]  [**214]   HEAVICAN, C.J.

INTRODUCTION

The Adams County Historical Society (ACHS) brings this writ of mandamus to compel Nancy Kinyoun, custodian of records at the Hastings Regional Center (HRC), to release the names of 957 people buried in the adjoining cemetery. ACHS claims that the information is a public record as defined by Neb. Rev. Stat. § 84-712.01 (Reissue 2008) and that Kinyoun did not have sufficient reason to deny access to that information. Kinyoun and  [***2] the Department of Health and Human Services (DHHS) claim the federal Health Insurance Portability and Accountability Act of 1996 (HIPAA) 1 and Nebraska's public records statutes prevent the release of this information. Kinyoun and DHHS claim this issue is inappropriate for a writ of mandamus.

We find that this action is appropriate for a writ of mandamus and that the information sought is a public record as defined by § 84-712.01. We therefore grant the request of ACHS and order Kinyoun to release the requested information in conformity with our opinion below.

FACTS

The facts of this case are relatively straightforward. HRC was created in 1887 as an "asylum for the incurable insane." 2 [**215]  Currently, HRC is a state-run institution operated by DHHS. HRC burial records date back to 1909 and indicate that the last burial occurred there in 1959. Graves are marked only by  [*751]  patient numbers, and the burial records consist of handwritten journals listing patient name, date of death, and medical record number. The records also contain maps with the graves and patient numbers which can be compared to the records in the journals.

ACHS  [***3] is a nonprofit organization dedicated to collecting and preserving the history of Adams County, Nebraska, and the surrounding area. ACHS requested information from Kinyoun consistent with its mission to collect and preserve historical data. Kinyoun denied the request, citing state and federal privacy laws. ACHS requested that the Nebraska Attorney General's office review the matter pursuant to Neb. Rev. Stat. § 84-712.03 (Reissue 2008) and recommend that Kinyoun and DHHS reverse their position. The Attorney General, however, agreed with the position taken by Kinyoun and DHHS. 3 In response, ACHS filed a mandamus action pursuant to § 84-712.03. A hearing was held in Adams County District Court, and Kinyoun's decision not to release the records was upheld. We moved the case to our docket to determine whether the information sought is a public record as defined by § 84-712.01.

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277 Neb. 749 *; 765 N.W.2d 212 **; 2009 Neb. LEXIS 80 ***; 37 Media L. Rep. 2098

STATE OF NEBRASKA EX REL. ADAMS COUNTY HISTORICAL SOCIETY, APPELLANT AND CROSS-APPELLEE, v. NANCY KINYOUN, APPELLEE AND CROSS-APPELLANT.

Prior History:  [***1] Appeal from the District Court for Adams County: TERRI S. HARDER, Judge.

Disposition: WRIT OF MANDAMUS GRANTED.

CORE TERMS

records, public record, patient, burial, writ of mandamus, medical record, deceased, health information, disclosure, death certificate, healthcare, privacy, cases

Civil Procedure, Appeals, Standards of Review, De Novo Review, Governments, Legislation, Interpretation, Writs, Common Law Writs, Mandamus, Administrative Law, Freedom of Information, Methods of Disclosure, Record Requests, Business & Corporate Compliance, Medical Treatment, Patient Confidentiality, Medical Records Under HIPAA, Healthcare Law, Human Remains, General Overview