Open Records Office gives mixed ruling on swimming pool injury request

The Pennsylvania Office of Open Records recently ruled on a Tribune-Review appeal, siding with county officials saying that providing the age and gender of swimming pool victims treated by health care personnel violates federal law restricting the release of medical information.

But the state’s arbitrator of Right-to-Know disputes also ruled that the Allegheny County Health Department failed to demonstrate that lifeguards are subject to the Health Insurance Portability and Accountability Act (HIPAA), which broadly protects patient privacy. In addition, Erin Burlew, the Open Records appeals officer who reviewed the appeal, found the county erred when redacting the incident date on reports.

The mixed ruling means the health department must release the age and gender of swimmer victims who were treated by lifeguards.

Pennsylvania’s leading news association said the ruling was ripe for a court review.

“How would the public find out who any of these people are?” said Melissa Melewsky, media law counsel for the Pennsylvania NewsMedia Association. “Unfortunately, the way HIPAA is interpreted leaves a lot of room for questions under the law and agencies err on the side of redacting. I think the courts might reach a different conclusion.”

The health department has 30 days to comply or file an appeal in Commonwealth Court.

“This is a win for the Tribune-Review and a win for your readers who will learn as a result from these disclosures,” Melewsky said.

The decision stemmed from a newspaper’s Right-to-Know request that asked for non-identifying details about Allegheny County swimming incidents – including three drownings – that occurred at public pools over the past three years. The request was part of an examination of pool inspection reports in Allegheny and Westmoreland counties, which found oversight disparities.

In its response, the Allegheny County Health Department redacted the victim gender and age as well as the incident date from 60 pool incidents from 2016 through 2018.

Amie Downs, an Allegheny County spokeswoman, declined to comment on the ruling.

It’s unclear what, if anything, the Sept. 11 legal decision narrowly defining releasable information would have on hospitals that routinely provide in mass casualty incidents, for example, victim gender, age and general health conditions.

UPMC, through a representative, declined to comment. Highmark officials did not respond to multiple phone calls and emails.