Media lawyers ask judge to unseal Jeffs' records
 
By Linda Thomson
Deseret Morning News
 
Attorneys for a coalition of news media outlets, including the Deseret Morning News, say sealed records regarding jailed Fundamentalist LDS Church leader Warren Jeffs should be made public because they are not covered by federal medical privacy laws.

The records in question include what may be a mental competency report, a petition, a request for personal physician contact and an order.

News media lawyers filed a legal brief Friday outlining their argument that the Health Insurance Portability and Accountability Act of 1996 (HIPAA) does not apply to courts or court records. Instead, they say the public has a right to know about documents filed in the criminal case pending against Jeffs.

But Jeffs' defense attorneys insist the polygamist leader has a strong interest in maintaining his medical privacy — and his rights to both privacy and a fair trial trump any public interest in the records.

Moreover, Jeffs' lawyers contend that a correctional facility could qualify as a health-care provider if it handles in electronic form "certain transactions" that would include such things as health care claims, payments, coordination of benefits and the like.

Jeffs' defense attorney Walter Bugden Jr., also argues state law "provides for even more stringent protection of health information." Even if HIPAA does not apply, Utah law "continues to protect his medical records," Bugden wrote.

Jeffs, 51, is charged with two first-degree felony rape as an accomplice charges, accusing him of performing a marriage ceremony between a 14-year-old girl and her 19-year-old cousin.

Fifth District Judge James Shumate sealed certain records in the case and expressed concerns about Jeffs' medical privacy.

Among other arguments, news media attorneys noted that the competency hearings for Brian David Mitchell have been public. Among other charges, Mitchell is accused of kidnapping Elizabeth Smart in 2002. His case is still pending.

In Jeffs' case, news media lawyers argue that HIPAA's language covers health insurance plans and health care providers, but not law enforcement or the courts.

"The trial of Mr. Jeffs is an event of substantial public interest that has drawn national media attention. Any documents filed with the court, especially documents relating to Mr. Jeffs' competency to stand trial, are public records subject to a constitutional right to access," news media lawyer David Reymann wrote. "Because Mr. Jeffs has not made any showing sufficient to overcome this constitutional right, the court should unseal the records in this case."

The Washington County Attorney's Office contends that HIPAA applies only to individuals who conduct health or mental competency evaluations. In court papers, prosecutors also said judicial proceedings are an exception to HIPAA — as long as a judge issues a court order.

E-mail: lindat@desnews.com
 
deseretnews.com
Originally published Saturday, May 12, 2007
 
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