Can Delaware withhold Planned Parenthood adverse-event reports sent to the state health department from a FOIA request?

Official title

17-IB45 8/31/2017 FOIA Opinion Letter to Mr. Jordan Warfel re: FOIA Complaint concerning the Department of Health and Social Services

Plain-English summary

Jordan Warfel asked the Department of Health and Social Services (DHSS) for any communications from Planned Parenthood of Delaware reporting adverse events under a state regulation requiring facilities that perform invasive medical procedures to report such incidents. DHSS denied the request in full rather than provide redacted copies, and Warfel petitioned the AG arguing the denial should not have been total.

The AG upheld the full denial, but on a broader ground than DHSS's own initial exemption citations. Reports of adverse events flow to DHSS's Division of Long Term Care Residents Protection (LTCRP), which the AG found operates as a "peer review organization" under Delaware law. Records of peer review committees and organizations reviewing medical care and providers' work are made confidential by a separate statute, 24 Del. C. § 1768(b), which the AG read (relying on a 2009 Delaware Supreme Court decision) as a complete bar to disclosure, not subject to court subpoena or discovery. Because that confidentiality statute applied regardless of FOIA's own exemptions, the AG found DHSS did not violate FOIA by withholding the records in their entirety and did not need to separately analyze DHSS's personal-privacy or general-exemption arguments under FOIA itself.

Currency note

This opinion was issued in 2017. 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

Are adverse-event reports that facilities send to Delaware's health department public records?

Under this opinion, not when they are received by a state entity acting as a peer review organization. The AG found that DHSS's Division of Long Term Care Residents Protection functions as such an organization, and records it receives in that capacity are confidential under 24 Del. C. § 1768(b), separate from and broader than FOIA's own exemptions.

Why couldn't DHSS just redact the records and release a partial version?

The opinion treated 24 Del. C. § 1768(b) as a complete bar to access, meaning the confidentiality protection applies to the records as a whole rather than functioning like a FOIA exemption that might allow redacted partial disclosure.

Did the AG rely on DHSS's original stated reasons for denying the request?

Not primarily. DHSS initially cited FOIA's personal-privacy and general-statutory exemptions. The AG instead grounded its determination in the separate peer-review confidentiality statute, finding that basis sufficient on its own and declining to reach whether the FOIA-specific exemptions DHSS cited would also have applied.

Background and statutory framework

Delaware FOIA, 29 Del. C. §§ 10001-10007, lets a requester petition the AG under 29 Del. C. § 10005 when a public body denies a records request. FOIA itself exempts personnel, medical, or pupil files whose disclosure would invade personal privacy (29 Del. C. § 10002(l)(1)) and records exempted by other statute or common law (29 Del. C. § 10002(l)(6)). Separately, 24 Del. C. § 1768(b) makes the records of peer review committees and organizations, including those reviewing medical care and provider work, confidential and unavailable even to court subpoena or discovery. Delaware's Supreme Court held in Office of Chief Medical Examiner v. Dover Behavioral Health Sys. that DHSS's Office of Health Facilities Licensing and Certification qualifies as such a peer review organization, and this opinion extended that reasoning to the Division of Long Term Care Residents Protection as the recipient of the adverse-event reports at issue.

Citations

• 29 Del. C. §§ 10001-10007 (Delaware FOIA)
• 29 Del. C. § 10005 (petition procedure for AG determination)
• 29 Del. C. § 10002(l)(1) (personnel/medical/pupil file privacy exemption)
• 29 Del. C. § 10002(l)(6) (records exempted by other statute or common law)
• 24 Del. C. § 1768(b) (peer review committee/organization records confidential, not subject to subpoena or discovery)
• 29 Del. C. § 1212(d)(7) (LTCRP recognized as a health oversight agency and peer review organization)
• 16 Del. Admin. C. § 4408 (adverse-event reporting requirement for invasive-procedure facilities)
• Office of Chief Medical Examiner v. Dover Behavioral Health Sys., 976 A.2d 160 (Del. 2009) (Office of Health Facilities Licensing and Certification is a peer review organization)

Source

• Landing page: https://attorneygeneral.delaware.gov/2017/08/31/3429/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2017/08/AG-Opinion-No.-17-IB45.pdf

Original opinion text

PRINT VERSION: AG Opinion No. 17-IB45

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 17-IB45

August 31, 2017

VIA U.S. MAIL AND EMAIL

Mr. Jordan Warfel

201 Governors Ave

Greenwood, DE 19950

[email protected]

RE: August 14, 2017 FOIA Correspondence Regarding the Department of Health and Social Services

Dear Mr. Warfel:

I write in response to your correspondence, received on August 14, 2017, alleging that the Department of Health and Social Services ("DHSS") violated the Delaware Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). Specifically, you allege that DHSS violated FOIA by denying your July 26, 2017 request in its entirety rather than provide redacted versions of records responsive to your request. I treat your correspondence as a petition for determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur ("Petition"). I have reviewed the record in this matter, to include the Petition, DHSS's August 17, 2017 response, and DHSS's August 25, 2017 supplemental response. For the reasons set forth below, it is my determination that DHSS did not violate FOIA.

By email dated July 26, 2017, you submitted a FOIA request to DHSS for the following:

any communications or documents from Planned Parenthood of Delaware or its representatives to DHSS reporting any adverse events as required by section 4.3 "Report of adverse events" under section 4408 "Facilities that perform invasive medical procedures" under title 16 of the administrative code, beginning from January 1, 2017 till the present.

On August 3, 2017, DHSS denied your request on the basis that the requested information was exempted from FOIA pursuant to 29 Del. C. § 10002(l)(1) (exempting "[a]ny personnel, medical or pupil file, the disclosure of which would constitute an invasion of personal privacy, under this legislation or under any State or federal law as it relates to personal privacy") and (6) (exempting "[a]ny records specifically exempted from public disclosure by statute or common law").

DHSS's Office of Health Facilities Licensing and Certification ("OHFLC") promulgated 16 Del. Admin. C. § 4408. [1] Pursuant to 16 Del. Admin. C. § 4408-4.3.1, facilities that perform "invasive medical procedures" are required to report all adverse events to DHSS. The facility must also "conduct an investigation of all adverse events to [DHSS] within forty-eight (48) business hours of the occurrence" [2] and "forward a complete investigative report to [DHSS] within 30 calendar days of the event." [3] According to DHSS's counsel, DHSS receives reports of adverse events through the Division of Long Term Care Residents Protection ("LTCRP"). [4]

Title 24, Delaware Code, Section 1768(b) provides that the records of certain "committees and organizations . . . are confidential and may be used by those committees or organizations and the members thereof only in the exercise of the proper functions of the committee or organization." Indeed, "[t]he records and proceedings [of such entities] are not public records and are not available for court subpoena, nor are they subject to discovery." [5] Among those entities are "peer review committees or organizations whose function is the review of medical records, medical care, and physicians' work, with a view to the quality of care and utilization of hospital or nursing home facilities, home visits, and office visits . . . ." Pursuant to 29 Del. C. § 1212(d)(7), LTCRP "shall be recognized as a 'public health authority' and as a 'health oversight agency,' and it shall be recognized in the performance of its functions as a peer review organization or auditor or evaluator with respect to such aspects of healthcare delivery systems or providers." Similarly, OHFLC, which promulgated 16 Del. Admin. C. § 4408, is a peer review organization. [6] Although the record is not clear as to why LTCRP, rather than OHFLC, receives the records submitted pursuant to Section 4408, I am satisfied that DHSS receives the records in its capacity as a peer review organization as contemplated by 24 Del. C. § 1768(b). As Section 1768(b) serves as a complete bar to access, [7] it is my determination that DHSS did not violate FOIA by denying your request in its entirety pursuant to 29 Del. C. § 10002(l)(6). [8]

Very truly yours,

LaKresha S. Roberts

Chief Deputy Attorney General

cc:

Michelle E. Whalen, Deputy Attorney General (via email)

A. Ann Woolfolk, Deputy Attorney General (via email)

[1] See http://regulations.delaware.gov/register/april2013/proposed/16%20DE%20Reg%201033%2004-01-13.pdf (last visited August 30, 2017) ("The Office of Health Facilities Licensing and Certification, Health Systems Section, Division of Public Health, Department of Health and Social Services, is proposing regulations for medical facilities.").

[2] Id . at § 4408-4.3.2.

[3] Id . at § 4408-4.3.3.

[4] Supplemental Response at 1.

[5] 24 Del. C. § 1768(b).

[6] See Office of Chief Medical Examiner v. Dover Behavioral Health Sys. , 976 A.2d 160, 165 (Del. 2009) (concluding that Office of Health Facilities Licensing and Certification a peer review organization).

[7] See id . at 167-69 (concluding that report concerning patient's death created at the direction of and provided to the Office of Health Facilities Licensing and Certification not subject to public records request, court-related discovery, court subpoena or administrative subpoena).

[8] Having determined that the records are exempted pursuant to Section 10002(l)(6), I need not determine whether or to what extent the records are also exempted pursuant to Section 10002(l)(3) (cited in DHSS's supplemental response dated August 26, 2017) or Section 10002(l)(1).