concurring.
This case raises the issue whether certain information, obtained by the Vital Records Division of the Department of Health, by means of mandatory reports, pursuant to Ark. Code Ann. § 20-18-302, from doctors, hospitals and other health care providers, is open to inspection by the public at large pursuant to the Freedom of Information Act, Ark. Code Ann. § 25-19-101, et seq.
The Freedom of Information Act establishes the broad policy that all government records are open to the public. This legislation creates a presumption that as to any information maintained by any government officer, agent or institution, the public, under certain procedural guidelines, is entitled to access to such information. However, there are certain exceptions to the broad policy of open access, and the presumption of open access can be rebutted by showing that the information sought fits into one of those exceptions, Ark. Code Ann. § 25-19-105(b).
These exceptions can be grouped into two broad categories:
[a] those items of information specifically exempt from access by the language of the FOIA itself, [Ark. Code Ann. § 25-19-105 (b)( 1)—(9)], and
[b] those items of information which are recognizable under the FOIA as exempt from open access by the terms of other statutes [Ark. Code Ann. § 25-19-105(b)(10)]; for instance 20-18-304, et seq. The first category, those exempt by the language of the FOIA, are narrowly construed in order to counterbalance the tendency of bureaucracies for secrecy, and to give liberal interpretation to the broad policy for open access; the exemptions specifically set out in the FOIA are as follows:
“Ark. Code Ann. § 25-19-105 . . .
(b) It is the specific intent of this section that the following records shall not be deemed to be made open to the public by the provisions of this chapter:
(1) State income tax returns;
(2) Medical, scholastic, and adoption records;
(3) The site files and records maintained by the Arkansas Historic Preservation Program and the Arkansas Archeological Survey;
(4) Grand jury minutes;
(5) Unpublished drafts of judicial or quasi-judicial opinions and decisions;
(6) Undisclosed investigations by law enforcement agencies of suspected criminal activity;
(7) Unpublished memoranda, working papers, and correspondence of the Governor, legislators, Supreme Court Justices, and the Attorney General;
(8) Documents which are protected from disclosure by order or rule of court;
(9) Files which, if disclosed, would give advantage to competitors or bidders.”
If the information sought by Plaintiffs fits into one of these exemptions, then it seems that no further inquiry is necessary, as the very act under which the Plaintiff brings this action, forecloses the relief sought. The Defendants/Appellants in this action, Arkansas Dept, of Health, et al., assert that the information sought is exempt as fitting into item (b)(2) in the category above, as well as fitting in the second broad category.
The second category of exemptions, those items of information recognized by the FOIA, as exempt from open access by the language of other statutes, must be strictly construed, and must be specific. Ark. Code Ann. § 25-19-105(b)(10) (Supp. 1993); Troutt Bros. vs. Emison, 311 Ark. 27, 841 S .W. 2d 604 ( 1992 ). Less than clear, or ambiguous exemptions will be interpreted in a manner favoring disclosure. Troutt Bros., supra; Young v. Rice, 308 Ark. 593, 826 S.W. 2d 252 (1992).
I believe resort to a determination if the information sought fits this category of exemptions should occur only if such information does not fit into the former category.
Following this approach, and applying it to the fact and law presented in this case, we should decide if the information sought by Plaintiffs is exempt from disclosure.
On July 1, 1994, Dale W. Morfey, Chairman and President of Westark, requested copies of Aborted Pregnancy reports and files under the FOIA for Washington, Crawford, and Sebastian Counties from 1980 to present or, alternatively, access to the files containing this information. The precise request was for copies of Form ACHS-01 for these counties for that time frame, which is a form entitled a “Report of Induced Termination of Pregnancy.” Completion of Form ACHS-01 is mandatory under Ark. Code Ann. § 20-18-302 and 303, and is filed with the Health Department’s Center for Health Statistics “for statistical use only.” The data required in the form is the facility name, address where the induced termination occurs and the following information about the patient: age; marital status; date of pregnancy termination; address by city, county, state and zip code; residence inside the city limits; race; education level; previous pregnancies; date of last menses; and type of procedure used in the termination.
All the information requested is of the nature that would be available to the clinic, hospital or informer, only as a medical provider, gathered in the course of and for purposes of treatment, diagnosis, examination of a patient.
On July 6, 1994, the General Counsel for the Health Department responded and stated that the Division of Vital Records had interpreted Form ACHS-01 to be “vital records” and prohibited from release under the terms of the Vital Statistics Act. On July 28, 1994, Westark filed suit under the FOIA and alleged that the reports requested were not “vital records” but statistical reports and that their release would constitute no breach of confidentiality. Westark contended that the Health Department had violated the FOIA. The Health Department answered and denied the allegations in the complaint. It filed a Trial Brief, asserting that Form ACHS-01 was not only a “vital record” under the Vital Statistics Act, codified at Ark. Code Ann. § 20-18-101 to 705 (Repl. 1991), but also a “medical record” and exempt under the FOIA at Ark. Code Ann. § 25-19-105(b)(2) (Repl. 1992).
On August 18, 1994, following a hearing on the matter, the circuit court found that Form ACHS-01 was neither a “vital record” nor a “medical report.” The court ordered disclosure of the reports requested by Westark pursuant to the FOIA.
The dual arguments advanced by the Health Department on appeal are that Form ACHS-01 is both a “medical record” as referred to in the FOIA, and thus not subject to disclosure under the act, and a “vital record” as defined in the Vital Statistics Act, prohibited from disclosure under the Vital Statistics Act.
As stated earlier, if the ACHS-01 is a medical record as asserted by the Defendant, then we need not look further for a resolution to this appeal.
The FOIA makes medical records exempt from public access, but does not define a medical record. Ark. Code Ann. § 25-19-105(b)(2). To resolve the first step analysis of the existence of an exemption to disclosure, we must, therefore, resort to a definition found in other parts of the State’s law, or ourselves fashion a definition of a medical record.
In the Arkansas Rules of Evidence we find that this court, in adopting or passing the uniform rules, has previously defined the term “medical record” as follows: “a medical record is any writing, document, or electronically stored information pertaining to, or, created as a result of, treatment, diagnosis or examination of a patient.” A.R.E. Rule 503(a)(5).
In that same evidence rule, a patient is defined as “a person who consults, or is examined, or is interviewed by a physician...” A.R.E. Rule 503(a)(1); a physician is defined as “a person authorized to practice medicine in any state or nation, or reasonably believed by the patient to be so.” A.R.E. Rule 503(a)(2).
The information contained in Form ACHS-01 is transmitted to the Department of Health by a physician (or his clinic or hospital), is a writing, and is information pertaining to and is created as a result of treatment, diagnosis or examination of a patient. A.R.E. Rule 503(a)(5). It seems clear, therefore, that such information is a medical record, regardless of its intended use, and regardless of the fact the information is compiled in a certain fashion for use by the Department. Such information is available because the person providing the information acted as the physician for the person who is the subject of the information.
I would therefore find that the ACHS-Ol is a medical record, and is therefore exempt from disclosure by the language of the FOIA itself. Ark. Code Ann. § 25-19-105(b)(2).
Insofar as the majority opinion finds that the document sought by the Plaintiffs is also a Vital Record under the provisions of the Vital Records Act, and therefore exempt under that act, I concur. Therefore, even if the court did not determine whether the ACHS-01 is a medical record, the document should not be disclosed, because disclosure is prohibited under the Vital Statistics Act. Ark. Code Ann. § 20-18-101 to 705 (Repl. 1991).