Speaking of things Jason Ravnsborg doesn’t really know, our Attorney General has issued an opinion saying that dead people have rights.
Minnehaha County Coroner Kenneth S. Snell asked the A.G.’s office, “Is the report of an autopsy performed at the request of a county coroner exempt from the state open records laws?” In his second official Attorney General’s opinion, the dumbest statewide elected official in South Dakota says sure, why not:
Considering the plain and ordinary meaning of the operative terms, I conclude that an autopsy report is a medical record exempt from public disclosure according to SDCL 1-27-1.5(2). An autopsy is an examination of a person’s body that reveals information concerning the general medical condition of the deceased at the time of death. An autopsy report may contain such information as the presence of any disease and evidence of prior medical treatments or procedures. The type of information included in an autopsy report would surely be recognized as a medical record if the person were alive. I decline to change the nature of the record because of the person’s death [Attorney General Jason Ravnsborg, Official Opinion 19-02: Autopsy Report Exempt from State Public Records Laws, 2019.04.16].
Ravnsborg’s first silly is positing that if we did an autopsy on a living person, we’d call the report a medical record. Actually, Jason, we’d call it evidence in a homicide.
Ravnsborg’s bigger silly is failing to offer any justification for a central point of his opinion, that the state has any compelling reason to extend to a dead person the same privacy right extended to a living person. Ravnsborg “decline[s] to change the nature of the record because of the person’s death.” Why, Jason? The nature of many other records and rights change upon a person’s death. Ownership disappears. Rights disappear. Legal claims disappear. If I had died last month, you surely would not have declined to change the nature of the lawsuit I had submitted against you and Steve and Kristi. You’d have hooted, “Cory’s dead! The plaintiff no longer exists! The suit is moot!” Judge Kornmann couldn’t have said, “I decline to change the nature of the lawsuit because of the plaintiff’s death.”
South Dakota’s exemption of medical records (“including all records of drug or alcohol testing, treatment, or counseling, other than records of births and deaths“) exists to protect the privacy of living individuals. If the medically recorded person is dead, and we’re just recording the cause of death (a fact that can be of sufficient public interest), there’s no privacy to protect.
If Ravnsborg is going to opine that medical records should remain secret after an individual’s death, Ravnsborg has to look past the corpse (who doesn’t care) to the relatives of the deceased, who may make some claim to privacy, or just plain decency. Invoking the rights of the survivors might give Ravnsborg some ground here, but he invokes no such rights of the living. Ravnsborg simply asserts a right for the dead.
Ravnsborg gets on firmer ground when he says an autopsy is part of an investigation by a public body and thus is exempt under SDCL 1-27-1.5(5). That’s the same exemption that Attorney General Marty Jackley and Judge Kathleen Trandahl cited to keep Bob Mercer and the rest of us from seeing Richard Benda’s death investigation. I didn’t like that precedent, but it’s there, ready to make the argument for all subsequent Attorneys General. But Ravnsborg didn’t cite that precedent (probably out of ignorance, possibly out of the Republican blindspot for recalling the party’s long tradition of corruption).
Ravnsborg tacks on a third reason to hide autopsy records from the public, claiming that since autopsy records are used by the coroner to decide what to write on the death certificate, autopsy reports qualify for the exemption in SDCL 1-27-1.9:
No elected or appointed official or employee of the state or any political subdivision may be compelled to provide documents, records, or communications used for the purpose of the decisional or deliberative process relating to any decision arising from that person’s official duties. Any document that is otherwise already public is not made confidential by reason of having been used in deliberations [SDCL 1-27-1.9].
That last sentence seems to throw things into knots. Any public documents used in deliberations don’t suddenly become private because a coroner or some other elected official consulted them before making a decision. So that statute seems to say it cannot be applied until all other statutes have been checked to ensure that a document is not public. If other statutes already make a document not public, there’s no need to invoke this statute. Ravnsborg may not be wrong here, but he’s redundant, showing off all the statutes his staff found for him without really adding substance to his argument.
Now more than ever, the Official Opinions of the Attorney General “may or may not be agreed with by a court or other body faced with the same issue at a later date.”
The dumbest attorney in the state & the dumbest female theocrat in the state making decisions that affect us all. Yay us…
“Ravnsborg’s first silly is positing that if we did an autopsy on a living person, we’d call the report a medical record. Actually, Jason, we’d call it evidence in a homicide.”
🙄🙄🙄🙄🙄🙄🙄🙄🙄🙄🙄🙄🙄🙄🙄🙄🙄🙄
Is Ravsbutt the most moronic state official in SD’s history?
I expect Economic Eunuch to give Ravsbutt a call any day now, asking him to join the likes of wacked out Jue-Lee-Ahn-Knee on the WH crack[ed up] legal team.
As Mr. bat from bear creek said on 23 May, 2019, in the wee hours, to my good friend Bob
However one wonders if autopsy reports might contain information that would violate HIPPA as it relates to living people.
Cory, privacy of a devastated family after a suicide, retraumatized decade after decade by press release to satisfy the general public’s fetish for gory details, should be balanced with decades of ptsd. We have talked about this here many times. If a qualified coroner determines suicide by stomach wound, without evidence of criminal cause, then that’s what a coroner is for. Seems simple. The public can speculate at the coffee shop all it wants, and stare wall-eyed at a victim who comes in searching for normalicy, but this is beneath journalistic ethics.
Sometimes it is good for a wise judge to just rule STFU. :(
I agree however Jason is unqualified. If the SD Bar Assn can’t educate the public the Barnett legacy serves(d) no other purpose than a cushy admin job and abusive political power. What else is new in GOP’s SD?
Grudz, five seconds of Googling take me to the HHS website, which explains, “The HIPAA Privacy Rule protects the individually identifiable health information about a decedent for 50 years following the date of death of the individual.” HIPAA extends this protection out of concern for surviving relatives and friends. HIPAA does not appear to conceive of a dead man having rights. Ravnsborg cites neither this easily findable federal rule nor any concern for relatives.
However, HIPAA does not appear to apply to autopsy reports.
Leslie, while I acknowledge concerns about the emotional well-being of relatives of the deceased, and while I will still push back that sometimes the public interest is more substantial than a grisly fetish and should be satisfied, I’ll focus here on the fact that Ravnsborg cited no such concerns to justify his evidently arbitrary choice to extend rights to dead people.
Hopefully, this person will be the one trying to defend the State’s “riot boosting” statutes rather than any qualified and experienced member of his staff….
Autopsies might contain medical records which could show medication people might have been taking that could give away conditions of other family members, personal medical history of the deceased, procedures such as abortions or deviant sexual practices which again, could cast public shame upon other living people. The public’s grisly deviant curiosity aside, there is no reason to release that all to the Argus when the coroner says “no foul play”.
Deviant behavior is prying into the private business of others.
Again, Grudz, the question of whether autopsies are public records requires balancing the proper concerns you raise with the public interest in causes of death that could signal risks to public health or safety. Determining how much if any of autopsy records should properly remain open to the public requires more nuance than your snarky dismissal and certainly more nuance and legal study than Ravnsborg’s poorly informed and problematic opinion.
An eager reader notes that the final sentence of SDCL 1-27-1.9 was added by 2013 HB 1115, which arose from Governor Daugaard’s super-duper 2012 Open Government Task Force.
There is no way i am agreeing with the crooked lobbyist. Greivers, get over it.
https://m.youtube.com/watch?v=h1WJqKWqUHQ
Way to sell out, Ms. leslie
You could be a lobbyist
I’m not sure your bet (e.g. https://davidmallenmd.blogspot.com/2013/08/are-national-institute-on-drug-abuse.html?m=1) qualifies to stay in the game with nida science articles. Does shouting big pharma make for denial?