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Perry v. Bullock

Supreme Court of South Carolina

July 16, 2014

Joe Perry and Osteen Publishing Co., Inc., Appellants,
v.
Harvin Bullock, in his capacity as Sumter County Coroner, Respondent

Heard February 5, 2014

Appeal fro Sumter County. Appellate Case No. 2012-212669. The Honorable Clifton Newman, Circuit Court Judge.

Jay Bender, of Baker, Ravenel & Bender, L.L.P, of Columbia, for Appellants.

Andrew F. Lindemann, of Davidson & Lindemann, P.A., of Columbia, for Respondent.

JUSTICE HEARN. TOAL, C.J., BEATTY and KITTREDGE, JJ., concur. PLEICONES, J., dissenting in a separate opinion.

OPINION

Page 252

[409 S.C. 138] HEARN JUSTICE 

The central issue in this case is whether autopsy reports are " medical records" under Section 30-4-20(c) of the South Carolina Code (2007), and therefore exempt from disclosure under the South Carolina Freedom of Information Act, Title 30, Chapter 4 of the South Carolina Code (the FOIA). The appellants brought a declaratory judgment action under the FOIA requesting production of an autopsy report from a [409 S.C. 139] coroner. The circuit court granted summary judgment in favor of the coroner, finding the records were exempt from disclosure as medical records. We affirm.

FACTUAL/PROCEDURAL BACKGROUND

Joe Perry, a reporter for The Item, a newspaper, sent a FOIA request to Harvin Bullock, the Sumter County Coroner, for the report of the autopsy performed on Aaron Leon Jacobs.[1] Sumter County denied Perry's request on the basis that pursuant to the FOIA, the autopsy report is a " medical record" and is therefore by definition not a public record subject to disclosure.

Perry, along with Osteen Publishing Company, Inc. (collectively, Appellants), filed this declaratory judgment action against Bullock in his official capacity as Sumter County Coroner. Appellants sought injunctive relief, alleging the autopsy report is not a medical record and therefore must be disclosed pursuant to the FOIA. Appellants therefore requested production of the records and attorney's fees.

Bullock answered, asserting the records are exempt from the FOIA as medical records. He also asserted the records are subject to the authorization and consent provisions of the Health Insurance Portability and Accountability Act of 1996, Pub. L. 104-191, 110 Stat. 1936 (HIPAA) and thus any state law requiring disclosure of the autopsy report would be preempted by HIPAA.

The parties filed cross motions for summary judgment. In support of his motion, Bullock submitted an affidavit of Dr. Janice Ross, the pathologist who performed the autopsy, which indicated she considered the report to be a medical record. Additionally, Bullock argued the issue was moot because Perry received the autopsy reports from another source.[2] Appellants objected to the court's consideration of [409 S.C. 140] Dr. Ross's affidavit, arguing that whether the autopsy report was a medical record within the meaning of the FOIA was a question of law and an expert witness is not competent to opine on matters of law.

After a hearing on the motions and an in camera review of the report, the circuit court granted summary judgment in favor of Bullock, holding that autopsy reports are medical records and ...


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