Editor’s note: This story has been updated with a response from the University. The comment is placed at the bottom.
The University of New Mexico may have violated transparency laws with a near-total redaction of three letters between a Records Custodian and unknown requestor or requestors, according to transparency advocates.
The records were dated between November and December 2018 and the bulk, or in some cases the entirety of the information being sought from the University — including the requestor’s name — was redacted. All the documents were requested by the Daily Lobo though the Inspection of Public Records Act.
Last week, the University was publicly criticized by the Office of the Attorney General for failure to adhere to the state’s Inspection of Public Records Act by not releasing records to the Albuquerque Journal.
The New Mexico Foundation for Open Government Executive Director, Melanie Majors said she had concerns about the amount of redactions.
“I cannot imagine why they would black out the request," Majors said. “There’s nothing that when you file a request for IPRA that says your request is confidential, especially at a public institution. Long story short, I think this is a violation of the Inspection of Public Records Act,” Majors said.
UNM spokeswoman Cinnamon Blair referred the Daily Lobo to the UNM Custodian of Public Records’ response letter to answer why the records were redacted. Blair said the office would provide further comment on Monday.
“We’ll look to provide clarification to the response you’ve received,” Blair told the Daily Lobo on Sunday.
The response letter to the Daily Lobo cited health information, Health Insurance Portability and Accountability Act (HIPAA) Privacy Rule, Family Educational Rights and Privacy Act (FERPA) and protected personal identifier information as the reasons for the redactions. The letter did not mention specific redactions on documents.
Majors said while the information in the actual records request may be protected, she said she is skeptical the letter between the custodian and requester is protected.
“All the things they’re permitted to redact in messages are personal identifiers, it’s like the date of birth except for the year (and) a whole social security number,” Majors said. “I don’t know why they think they can redact a request.”
The Daily Lobo asked the University for all the letters responding to records requests for 2018. The University provided documents for 839 letters. Most letters were displayed in full with blacked-out email addresses, physical addresses, names of requestors, and other names within the request redacted.
Redactions across the records request were inconsistent, even in versions of the same document. Email addresses that were redacted previously were left unredacted in later documents.
Letters relating to three records numbered 18-743,18-760 and 18-762 were redacted almost entirely. Two others, 18-744 and 18-761 had significant portions redacted, including the requestor's name. All the records were filed on two days, Nov. 4, 2018 and Nov. 12, 2018.
18-743 was nearly redacted in its entirety, the only part of the response letter visible was a denial.
“The appropriate UNM departments have confirmed that the Office of University Counsel has already provided you with copies of your grievances. This request is considered fulfilled and will be closed,” was written in the response.
The letter was dated Nov. 30, 2018 and was signed by Christy Armijo, who at publication time was not listed in the UNM directory. A spokesperson told the Daily Lobo they “believe she is no longer with UNM.”
18-760 was filed on Nov. 12, 2018. The final response letter was dated on Nov. 27. The excerpt of the request that is unredacted reads: “This is BOTH a request under the Freedom of Information ACT and a Grievance-Complaint. I request that a copy of the following documents and media [or documents containing the following information] be provided to me:”
Three sections are redacted and a fourth reads: “Marron Lee and All the Boards of Regents witnessed my complaint. Thus per UNMH guidelines, a report should have been available to me within 7 days. Please provide the report.”
The response part of the letter was unredacted. The first item was said to be maintained at a URL: https://hospitals.health.unm.edu/intranet7/apps/doc_management/index.cfm?project_id=1 which includes lists of guidelines and procedures for UNM Hospitals. The second and fifth items were said not to seek any public records.The third and forth items were rejected because there were no responsive documents.
The letter goes on to reject medical billing information for specific doctors and was rejected because “... health information relating and identifying specific individuals as patients is strictly confidential and not a matter of public record.”
The office also laid out it was not permitted to provide copies of medical records or complaints, as UNM has patient advocates to request those documents through.
The final rejection was based on jurisdiction: “UNM is not affiliated with CNM and Kathy Winograd.”
The request was closed.
18-762 was dated Nov. 12, 2018 and was responded to on Dec. 19,2018. The first bullet point asked for photos of CEO Kate Becker, Board of Regents members, UNMH CEO Mike Chicarelli, attorney Jennifer James, doctors at UNMH and CNM CEI Kathy Winograd. In parentheses in red is written (UNM responded to this item on November 27, 2018).
The second item requested “all contracts between CNM UNMH and UNM,” which was granted to the requester in the response letter.
The fifth bullet point was unredacted and asked for “all guidelines for psychologist therapist meeting patients outside of therapy and maintaing relations o u risde of therapy counseling.” All typos are as is. This is followed by: It also has “(UNM responded to this item on November 27, 2018).”
A previous response letter for 18-762 dated Nov. 27, 2018 which responded to other parts of the request denying the issue of requests because the records are unclear, would require making documents or are protected under medical record exemptions.
This is a developing story and more information will be provided as the Daily Lobo receives it.
UNM is subject to Inspection of Public Records Act, which allows for access to all records that don’t fall under confidentiality exceptions. According to the IPRA compliance guide, these exceptions include
- Medical records
- Reference letters
- Opinions on personnel
- Some law enforcement records
- Public hospital records
- Tactical response plans
- Protected personal identifying information, such as social security numbers or dates of birth
- Other exceptions are allowed by client-attorney privilege or asking for a document to be created — that’s not the job of a records custodian.
According to the IPRA compliance guide: “Requested public records containing information that is exempt and nonexempt from disclosure shall be separated by the custodian prior to inspection, and the nonexempt information shall be made available for inspection.”
Greg Williams, an open government advocate and attorney in Albuquerque, has previously criticized the University’s record on transparency when cutting UNM sports. His son played for soccer in its last season at UNM.
He told the Daily Lobo that the reasons for the redactions are unclear, and may have violated state law.
“On their face, UNM’s redactions appear to violate IPRA,” Williams wrote in an email after viewing the letters. “Redactions can only be made in very limited situations, and it would be unusual for IPRA requests and the cover letters for responses to those requests to include the kind of personal information that can be redacted. The block redactions especially raise red flags.”
The University gave an updated statement on Monday afternoon and said the redactions were due to personal information for HIPAA.
“We understand the Daily Lobo’s concern regarding the significant redactions made to five of the over 800 response letters to IPRA requests for 2018 that they received. It is unusual that the request itself would be redacted, but it does occur.
The five records in question were requests from a single individual. This requester, within their requests, discloses extensive and detailed personally identifiable medical history and patient information that is protected as an exception under IPRA
In addition to complying with IPRA, the Custodian of Public Records also has an obligation to comply with local and Federal laws as permitted or required by IPRA and stands by the redactions made to these documents as being not only appropriate but necessary.
Furthermore, without knowing the contents, and knowing that the exceptions were clearly identified as relating to protected information, it is unfair for anyone to assert that it is likely that IPRA was violated.”