In life, there are questions which – no matter how many times you ask – simply cannot be answered. Who shot JFK?? Did men really walk on the moon?? Is there a God??
But when the question involves your civil liberties and possibly being arrested for taking photographs, there should be a clear-cut answer.
Our question for today is direct:
If you are taking photographs of paramedics treating an accident victim on the street in Arlington, Texas, will you be arrested for violating the federal Health Insurance Portability and Accountability Act (HIPAA), a rule which protects information about patient treatment and medical records?
Why did the Arlington Fire Department, the Arlington Police Department, and the Arlington City Attorney wait until this author asked for comments for this story – after trading emails on the subject for weeks – before they finally answered what seems to be such a simple question?
Arlington is a medium-sized city between Dallas and Fort Worth along Interstate 30. Sports fans will recognize it as the home of both the Dallas Cowboys and the Texas Rangers, with their stadiums just a few blocks apart. It’s the home of the original Six Flags Over Texas theme park. General Motors has their largest plant in the country in Arlington, with nearly 1,200 employees building only large and extended-size SUVs. A large tax base helps fund 640 sworn law enforcement officers and almost 400 firefighters and paramedics, using the most current equipment and professional training in the North Texas area to serve nearly 370,000 residents.
Back in late September, an Arlington resident identified as The Battousai posted a video shot earlier in the same month. He was videotaping the treatment of an accident victim by Arlington Fire Department paramedics when Arlington Police Department officers approached him and said, Per the paramedics, just so you know, per HIPAA you cannot film him (not sic).
That simple – but absolutely incorrect – statement got my attention. I wrote about this same issue nearly ten years on my own blog: BarkingDogs.org – Dallas Fire-Rescue apologizes for not allowing photos of wall-crasher (2006). But years later, I continue to encounter a few Dallas firefighters who have no problem misquoting the rules when a photographer shows up.
Just a few months ago, while I was covering a recent accident in Dallas, the firefighter in this photo decided to make a point about my taking photographs of the scene.
Quoting from my email to the Jason Evans, thedepartment’s PIO:
At some point, as happens, even though she [the victim] was in shock, she raised her hand up to block me [and yelled, No pictures!] Nothing unusual.
What is really unusual is that one of your officers turned around and told me to stop taking pics. I politely replied, NO.
He said, She wants you to stop taking pics. I again said NO. This is where it gets fun … The officer stood up and walked towards me. Even the Dallas Police Department officers were gawking.
He said – Then take my picture.
Jason’s reply was so correct that it should be memorized by PIO’s all over the country.
I spoke with this firefighter late last night and made sure that he was aware of the media’s rights, as well as those of the general public, to take pictures at the scenes of emergency calls so long as their actions don’t interfere with the abilities of first responders to perform their sworn duties.
I empathized in the sense that I completely understand the position we are put in when a patient is pleading that their picture not be taken. Please understand that as first responders we feel a duty to help the people we’re responding to, even if that assistance falls outside of the responsibilities of why we were called in the first place.
That said, I reminded him that being at the scene and taking pictures is your lawfully-protected right, and encouraged him to just conduct himself as if there was no one on the scene besides him, the patient and the first responders who were assigned to the call with him.
In October 2014, Mickey Osterreicher, general counsel for the National Press Photographers Association, presented the NPPA’s Right to Photograph and Record in Public Program, supported by a grant from the Society of Professional Journalists and local sponsors, to more than 200 law enforcement officers from North Texas agencies. The event was held at the Dallas Sheriff’s Training Academy, and the Dallas Police Department was a co-host.
Attending this groundbreaking event were representatives of the Arlington Police Department – Lt. Christopher Cook (the department’s spokesperson), Zhivonni McDonnell, Steven Winchester and Robert Vorphal. In this photo, Officers McDonnell and Cook are speaking to Mickey during a session break.
Given their participation in the NPPA event, I came to the conclusion that the confusion over HIPAA and its misapplication to photography of any kind could be resolved by simply contacting Lt. Cook and reminding him of Mickey’s presentations. I sent him an email, referring back to the event and our own brief conversation about local issues, on October 18th, which started a rapid-fire exchange of emails.
Hi there. I attended your class and it was very informative. This incident that you are referring to is under investigation by our department.
Thank you for bringing this to our attention. The gentleman doing the recording filed a complaint with our Internal Affairs Division.
Let me point your attention to this story, just posted on the PINAC site.
At your convenience, please confirm that your officers and paramedics have been informed HIPAA does NOT prohibit the photography of person(s) being treated by paramedics???
I saw that and reviewed the content. The use of force incident is also under investigation at this time.
And moments later, he added in another email:
I will refer the HIPAA stuff to our City Attorney as we have about 640 officers to see if this is something that has already been pushed out. I am in our Media Office and handle public relations for our department. I will keep you posted.
On November 10th, I asked again for an update. His reply:
I do not know the outcome or whether it’s complete. Please understand that I am assigned to the Media Office so I will have to check with their chain of command as I do not receive regular updates on cases that are not in the media. I will see what we can share or direct you to the open records process if necessary.
Anytime we receive a complaint, we fully investigate the matter and there are several factors that are taken into consideration. It is my understanding that the investigation is still ongoing.
If you are wanting the full details related to either of these incidents, you will need to submit an Open Record Request through our City Attorney’s Office.
I am not looking for reports on incidents. I simply want to know if the City Attorney has reviewed the HIPAA rules and notified paramedics that they cannot prohibit the public from taking pictures of any person being treated by them in a public right of way (despite the comments heard on the earlier videotape in which your officers told civilians to stop taking photographs of a patient being treated by paramedics). HIPAA does not apply any requirements on the public at large, but simply protects the RECORDS of the treatment and the patient.
If you can tell me who to contact in the City Attorney’s office, I will contact them. I can’t file an Open Records Request for a document that does not exist, nor can I ask the City Attorney to issue that kind of statement.
Please note – I have every intention of coming out to Arlington one weekend in the near future, in the hope that I can find an EMT situation and then take photographs. I sincerely hope your officers do not intend to intimidate me in the same manner.
Lt. Cook replied a few hours later:
You can contact Police Legal Advisor Tiffany Bull at ———–. I would sincerely hope that you receive no issues at all anytime you are in Arlington filming police, fire or EMS calls as we have an excellent relationship with our local media partners. Please let me know if I can be if further assistance.
I left a detailed voicemail for Ms Bull, followed up by an email:
I am NOT asking for any documents, because most of what your office has would be considered protected by attorney-client rules.
Here is what I am trying to confirm, and I am trying to be as detailed and exact as possible in this issue –
– Has the Arlington City Attorney reviewed HIPAA requirements as regarding photography of patients by the general public/civilians?
– Has the Arlington City Attorney informed police and fire/rescue personnel HIPAA does NOT apply to the general public/civilians observing the treatment of patients in the public view/right of way?
– Has the Arlington City Attorney informed police and fire/rescue personnel HIPAA does not prohibit photography of any patient being treated by paramedics in the public view or right of way?
– Has the Arlington City Attorney informed police and fire/rescue personnel that ordering the general public/civilians to stop taking photographs of patients being treated by paramedics in the public view/ right of way would be considered a violation of their First Amendment rights and illegal prior restraint???
The next day, Ms Bull replied:
While I understand you are interested in knowing the advice and subject matter of communications our office had with city personnel, I am not able to share that with you. Just as attorney-client privilege makes many of the documents our office maintains confidential, it also applies to many of our oral and written communications.
However, I can assure you that the City of Arlington strives to ensure the rights of all individuals are protected in accordance with applicable law and its employees are informed regarding appropriate legal parameters.
Really? The Arlington City Attorney couldn’t or wouldn’t tell me their officers have been told to respect the right of anyone to photograph in public – and HIPAA does not apply to photography – because of attorney-client privelege?
So when the photographer gets arrested for taking pictures like the one below (from the bicycle accident referred to previously), you won’t be able to tell him why he was taken into custody??
I also reached out directly to the Arlington Fire Department and left several messages with their PIO, Lt. Lee Tovar. He did not reply to any of my voicemails. I sent a detailed query by email on November 12th to Battalion Chief Brent Shanklin, who supervises the department’s medical operations, but did not receive a reply.
Now, you may be asking, Well, why don’t you just drive out to Arlington, wait around for an accident, then try to take photographs?
Getting a ticket – or worse, getting arrested and taken into custody in the Tarrant County jail – won’t answer this question, but it will make my lawyers happy and rich. I do not look forward to spending a night in a jail with a bunch of drunk cowboy wanna-be’s doing the Cotton Eyed Joe.
After I prepared a draft of this story for PINAC, I emailed Lt. Cook for a comment. Despite this being Thanksgiving weekend, he replied – at 1215am Saturday morning!
The Arlington Police Department respects the rights of anyone, whether they are a journalist or a private citizen, to record encounters with officers or other matters of public safety so long as they have a lawful right to film from where they are standing in a public place. In major critical incident scenes, we try to set up media staging areas to assist with factual dissemination of information, however you are certainly allowed to go anywhere that any other citizen is walking while in a public place.
In instances where an officer challenges your ability to record an encounter, my suggestion is to politely gather the officer’s name and request to speak to a supervisor to address the issue. We have no statutory authority to enforce any provision related to HIPAA so I apologize for the misinformation that was originally provided by one of our officers in the video that you display.
I hope you had a great Thanksgiving and please continue to reach out to me if you experience any resistance if you decide to film within our city.
That statement was forwarded to Battalion Chief Shanklin, who replied Monday afternoon, with a copy to NPPA’s Mickey Osterreicher:
I agree with the comments from Lt. Cook.
The Arlington Fire Department respects the rights of all individuals including the right to take photographs from a place the person lawfully has a right to be so long as they are not interfering with our ability to perform our duties.
I give Lt. Cook and Chief Shanklin kudos for acknowledging the public’s right to photograph and record, even at emotion-laden events like an auto accidents. They clearly understand their job is to treat the victim and our job is to document the event.
If you live in Arlington, please keep me posted on future encounters with paramedics and police officers at any incident. I might even come out and wander around the city one evening. Lord knows the Dallas Cowboys are just another accident waiting to happen anyways (said the diehard Philadelphia Eagles fan).
(All Photos Copyright 2015 / Avi S. Adelman)