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

Plain-English summary

Representative Warren asked the AG whether a county coroner's records about COVID-19 deaths, including identifying information and medical details for the deceased and contact information for next of kin, are public under the Arkansas Freedom of Information Act.

Then-Attorney General Leslie Rutledge said yes, with one carve-out. The controlling statute is Ark. Code Ann. § 14-15-304. Under subsection (a), records "gathered and created during the course of a coroner's investigation" are confidential and exempt from FOIA "only until such time that the coroner issues his or her final report." Once that report issues, the report and the identifying information in it become public records. Under subsection (b), "confidential medical information gathered during the course of the investigation" stays exempt, except to the extent it is quoted in the final report. So if a coroner quotes medical information in the final report, that quoted material comes out with the report.

The opinion rejected several arguments that other statutes might shield the information. Section 14-14-110 (the general county-records privacy provision) is a general statute that yields to the more specific § 14-15-304 (Searcy Farm Supply rule of statutory construction). The Personal Information Protection Act (Ark. Code Ann. § 4-110-101 et seq.) regulates security measures for "businesses," and counties are not "businesses" under § 4-110-103(2). HIPAA is federal and outside the AG's normal scope; HIPAA questions go to the U.S. Departments of Education or Health and Human Services or to a U.S. Attorney.

On the constitutional-privacy question (whether McCambridge v. City of Little Rock's federal informational-privacy right shields a particular record), the AG declined to opine. The McCambridge test is fact-dependent, and the AG cannot act as a factfinder. The opinion noted that the Arkansas Supreme Court has not actually applied McCambridge since it was decided in 1989, and the Eighth Circuit in Dillard v. O'Kelley signaled that the federal informational-privacy right may now be effectively dead.

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

What gets covered by the "confidential medical information" carve-out?
The opinion read it as "medical information" gathered during the death investigation, including records the coroner subpoenas under § 14-15-302(b)(2). Anything not quoted in the final report stays confidential. Anything quoted in the final report comes out with the report.

Why did the AG say HIPAA was outside the opinion's scope?
HIPAA is federal law, codified across Titles 18, 26, 29, and 42 of the U.S. Code. AG opinions interpret state law. Federal questions, including HIPAA's reach over coroner records, get referred elsewhere (citing Op. Att'y Gen. 2008-110).

Does the next of kin's contact info come out too?
Per the opinion, yes, if it appears in the final report, because the statute makes the report itself public on issuance. Subsection (a) does not carve out next-of-kin information separately; only "confidential medical information" gets the (b) carve-out.

What is McCambridge and why didn't it produce a clear answer?
McCambridge v. City of Little Rock, 298 Ark. 219, 766 S.W.2d 909 (1989), recognized a federal constitutional right to privacy in "personal matters" for purposes of resisting disclosure of certain records. The test balances government interest against personal privacy on the specific facts. The opinion noted three later developments that effectively narrowed the doctrine: Hopkins v. City of Brinkley (2014) (no standing, no evidence of "personal matter"), Pulaski Cty. v. Ark. Democrat-Gazette (2007) (waiver), and Dillard v. O'Kelley (8th Cir. 2020) (qualified immunity granted; concurrence calling the right "dead" in the Eighth Circuit). Applying any of those to particular coroner records requires factfinding.

Background and statutory framework

Arkansas's coroner-records statute, § 14-15-304, sets up a temporal rule. During the death investigation, the records are confidential and FOIA-exempt. Once the coroner issues a final report, the records are public, except for confidential medical information that was not quoted in the final report. The legislature's choice to put medical information on a different track reflects a familiar privacy concern, but the carve-out is narrow: anything the coroner quotes in the final report is fair game.

Two competing statutes the legislator suggested as overrides did not fit. Ark. Code Ann. § 14-14-110 governs county records generally and contains a privacy carve-out for "[p]ersonal records, medical records, and other records which relate to matters in which the right to individual privacy exceeds the merits of public disclosure." But Arkansas's specific-controls-general rule (Searcy Farm Supply, Donoho v. Donoho) gives effect to § 14-15-304's coroner-specific scheme. The Personal Information Protection Act regulates security measures by "businesses" and does not reach county government.

McCambridge is a separate constitutional overlay, available in the right factual case, but the AG's office is not the right venue to apply it.

Citations

Statutes:

• Ark. Code Ann. § 14-15-301 (Repl. 2013) (coroner investigation duties)
• Ark. Code Ann. § 14-15-302(b)(2) (Repl. 2013) (subpoena power for medical records)
• Ark. Code Ann. § 14-15-304(a)-(b) (Repl. 2013) (coroner records confidentiality and FOIA)
• Ark. Code Ann. § 14-14-110 (Repl. 2013) (general county records privacy)
• Ark. Code Ann. § 4-110-101 to -108 (Repl. 2011 and Supp. 2019) (Personal Information Protection Act)
• Ark. Code Ann. § 4-110-103(2) (Supp. 2019) (definition of "business")
• Ark. Code Ann. § 25-19-101 et seq. (FOIA)
• Public Law 104-191 (HIPAA, scattered sections of 18, 26, 29, and 42 U.S.C.)

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)

Prior AG opinions:

• Op. Att'y Gen. 2008-110
• Op. Att'y Gen. 2019-026
• Op. Att'y Gen. 2001-373

Source

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

Original opinion text

Opinion No. 2020-041
January 27, 2021
STATE OF ARKANSAS
THE ATTORNEY GENERAL
LESLIE RUTLEDGE
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.

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.

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 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.

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

Sincerely,
LESLIE RUTLEDGE
Attorney General