Abortion records exempt from disclosure

Abortion records exempt from disclosure

12/18/95

ARKANSAS–State records of fetal abortions are “vital records” exempt from Arkansas’s Freedom of Information Act, the state’s Supreme Court ruled in mid-November.

The case arose in July 1994 when the Arkansas Department of Health refused to provide the Fort Smith-based Westark Christian Action Council with state records of abortions from three Arkansas counties.

The group had requested copies of a state form entitled, “Report of Induced Termination of Pregnancy.” The form lists the abortion facility’s name and address, as well as information about the patient: age, marital status, date of pregnancy termination, address by city, county, state and zip code, race, education level, previous pregnancies, date of last menses, and the type of procedure used in the termination.

An Arkansas Health Department attorney refused the request on the ground that the records were vital statistics, which are exempt from the public records law. The Vital Statistics Act exempts from the state FOI Act “reports of birth, death, marriage, divorce, or annulment and the data related thereto.”

The coalition sued in Sebastian County Circuit Court for the release of the documents, asserting that abortion records do not fall under the vital records exception for “reports of death.” The Health Department countered in its trial brief that the reports were exempt under both the Vital Statistics Act as vital records and under the state FOI Act as medical records.

In August 1994 Judge Don Langston of Fort Smith agreed with the coalition that abortions were subject to neither exemption and ordered the disclosure of the records.

The Arkansas Supreme Court overturned that ruling, declaring that abortions fall under the broader category of “death” as set forth in the vital records exemption. “‘Induced termination of pregnancy’ is a subset of ‘fetal death,'” the court opined, “and data relating to death reports constitutes a ‘vital record.'”

The court did not address whether the abortion records were also exempt from the state FOI Act as medical records. (Department of Health v. Westark Christian Action Council)