78 Op. Att'y Gen. 71 (1989)
 
78 OAG 71  72  73  74  75  76  77

OPINION NO. OAG 14-89,

Wisconsin Attorney General Opinions

1 June 1989

Ambulances;
Confidential Reports;
Public Records;

Under present law, ambulance records relating
to medical history, condition or treatment
are confidential while other ambulance call
records are subject to disclosure under the
public records law.

JAY GRIGGS, Publisher Hudson Star-Observer

You have asked for my opinion on the state of
the law regarding access to records on
ambulance calls.

As you are well aware, the subject twice
received the attention of the Legislature
during the last session and, as indicated by
the legal opinions you have received from
other sources, the meaning of the resultant
current law is in contention.

Special attention is now given to ambulance
records in section 146.50(12), Stats.

This section was initially created by 1987
Wisconsin Act 70
and then amended by 1987 Wisconsin Act 399.

It reads as follows:

146.50(12)   CONFIDENTIALITY OF RECORDS.

146.50(12)(a)

All records made by a licensed ambulance
service provider or an ambulance attendant
relating to the administration of emergency
care procedures to and the handling and
transportation of sick, disabled or injured
persons shall be maintained as confidential
patient health care records subject to the
requirements of Sections 146.82 and 146.83
and, if applicable, Section 146.025(5)(a)
(intro.), (6), (8) and (9).

For the purposes of this paragraph, a
licensed  ambulance service provider and a
licensed ambulance attendant shall be
considered to be a health care provider under
Section 146.81(1). Nothing in this paragraph
permits disclosure to a  licensed ambulance
service provider or a licensed ambulance
attendant under Section 146.025(5)(a),
except under Section 146.025(5)(a)11.

 
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146.50(12)(b)

Notwithstanding Paragraph 146.50(12)(a), a
licensed ambulance service provider, who is
an authority, as defined in Section 19.32(1),
may make available, to any requester,
information contained on a record of an
ambulance run which identifies the ambulance
service provider and  ambulance attendants
involved; date of the call; dispatch
andresponse times of the ambulance; reason
for the dispatch; location to which the
ambulance was dispatched; destination, if
any, to which the patient was transported by
ambulance; and name, age and gender of the
patient.

No information disclosed under this paragraph
may contain details of the medical history,
condition or emergency treatment of any
patient.

Prior to this enactment, records of an
ambulance service which fell within the
definition of an "authority" under section
19.32(2) were subject to the general
provisions of the state public records law.

That is, records in the custody of an
"authority" are presumed to be available for
inspection and copying unless access is
specifically limited by statute or common law
or unless the custodian properly determines
that the interests to be protected by
nondisclosure outweigh the general
presumption in favor of access.

Hathaway v. Green Bay School Dist.,
116 Wis.2d 388, 397,
342 N.W.2d 682 (1984).

The first sentence of section 146.50(12)(a)
clearly creates a specific statutory
confidentiality provision which is
incorporated into the public records law by
sections 19.35(1)(a) and 19.36(1).

It states as a general rule that ambulance
call records are to be treated as
confidential patient health care records.

However, section 146.50(12)(b) then goes
on to provide that "notwithstanding
Paragraph 146.50(12)(a),"

an ambulance service provider "may make
available, to any requester" certain
specified types of information.

Your district attorney is of the opinion that
the use of the term "may" in section
146.50(12)(b) grants the ambulance provider
the discretion to determine which of the
authorized information will be released.

 
78 OAG 71  72  73  74  75  76  77

Under this interpretation, the term "may"
confers personal discretion on the custodian.

An attorney representing media interest has
maintained that the provisions of section
146.50(12)(b) are intended to make the
described information available under the
general provisions of the public records law.

Under this interpretation, the phrase "may
make available" is used as a general
exception to the confidentiality provision.

The effect is that notwithstanding the
confidentiality provision, the described
information may be made available under the
public records law.

In my opinion, a reasonable person could
arrive at either one of these
interpretations.

Both interpretations are consistent
with the common meaning of the
term "may" in that both are permissive.
 

The difference is that the former
interpretation confers personal discretionary
authority on individual ambulance record
custodians.

The latter interpretation is an
acknowledgement that the custodian may make
the described records available in compliance
with the public records law without fear of
violating the confidentiality provision.

I agree with the suggestion of the media's
counsel that the Legislature probably used
the term "may" rather than "shall" in section
146.50(12)(b) because the use of "shall"
would have made this an absolute right of
access statute.

The provision would have required the
custodian to make available the kinds of
information described in section
146.50(12)(b) and the use of the
terms "shall make available" in this specific
setting would have barred the custodian from
withholding any information under the common
law balancing test which is otherwise
available as a possible exception under the
general public records law.

State ex rel. Bilder v. Delavan Tp.,
112 Wis.2d 539, 553,
334 N.W.2d 252 (1983).

The strength of either interpretation depends
on one's focus.
If you focus on the provisions of section
146.50(12) alone, the interpretation
conferring personal discretion on the
custodian appears intended.

But if the provision is read in context with
an overarching public records law, the other
interpretation has more appeal.

 
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In legal parlance, the statute may be
considered ambiguous because a reasonable
person could reasonably arrive at either of
the two competing interpretations, and such
ambiguity can stem from the interaction with
another statute.
 

State ex rel. Newspapers v. Showers,
135 Wis.2d 77, 87,
398 N.W.2d 154 (1987).

Given this ambiguity, it is appropriate to
examine the legislative history, purpose and
context of the legislation involved [1]
and in particular to look for indicia of the
intended relationship between the provisions
of section 146.50(12) and the public records
law.

An examination of the drafting file in the
Legislative Reference Bureau reveals that the
provisions in section 146.50(12) actually
arose out of an ongoing disagreement over
whether ambulance records were subject to
disclosure under the public records law.

The language in section 146.50(12) was
apparently drafted and submitted by the
Department of Health and Social Services with
the following rationale expressed:

Rationale

For the past two or three years there has
been a  disagreement between the media and
ambulance providers regarding whether
ambulance reports are confidential patient
records or not.

The media has argued that they are public
records; providers have argued that they are
patient records.

Clarification is needed.

These amendments allow disclosure of basic
information about an ambulance run, but
preserve the confidentiality of patient
specific information.

1987 Assembly Bill 678, Legislative
Reference Bureau file.

The page on which the foregoing
appears is dated July 1 1985.

Another record in the file provides the
following "Explanatory Note":

 
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A great deal of information contained in the
ambulance run report forms and other reports
completed during ambulance care and
transportation of a patient deal with the
medical condition of the patient.

Release of such information to the public
without appropriate safeguards could be
embarrassing or detrimental to the patient.

For these reasons, medical records in general
have been exempted from the open records
provisions in the statutes.

However, since the licensed ambulance
attendant and  EMT-Paramedic are not
specifically included in thedefinition of
"health care professionals" in Section
146.81(1), Wis. Stats., most ambulance run
records do not fall into the category of
confidential patient health care records.

The attorney general has issued an informal
opinion  that ambulance run reports created
by services falling under the open records
law must be handled under that law unless
they specifically fit under some statutory
grant of confidentiality.

While the case can be made that certain
ambulance run reports are confidential
because they are completed under the
direction of a physician and others might be
exempted from open records treatment under a
balancing test, the entire area is ambiguous
under current law.

DHSS legal counsel has advised that the best
way to clear up this ambiguity is to specify
in the statutes how ambulance run records are
to be treated.

This change accomplishes that clarification
by making the medical portions of ambulance
run records confidential patient health care
records.

1987 Assembly Bill 678, Legislative Reference
Bureau file.

From this information, it is clear that a
primary purpose of section 146.50(12) was to
address public records issues and it follows
necessarily that its provisions are intended
to be read in the context of the overarching
public records law.

In light of the materials in the drafting
file, it becomes more clear that the primary
purpose of the confidentiality provision is
to protect patient medical information and
not other information about ambulance
operations.

 
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There is the sense of compromise.

The most sensitive information is made
confidential; the rest is not.

Therefore, it is my opinion that in enacting
section 146.50(12)(b), the Legislature
intended that the information described
therein be subject to the public records law.

The individual custodians of ambulances do
not have total personal discretion to grant
or deny access.

Pursuant to the public records law, a
custodian on a case-by-case basis may
consider denying access to the kind of
information described in section
146.50(12)(b) only if he or she determines
that the interest to be protected by
nondisclosure outweighs the general
presumption in favor of access.

DJH:RWL

[1]

Showers,
135 Wis.2d at 87.

 
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