Indiana Public Access Counselor Luke Britt released an informal opinion last December stating the information gathered by Terminated Pregnancy Reports, or TPRs, could be used to identify patients — “especially in smaller communities.”
Attorney General Todd Rokita released an advisory opinion Thursday that said the decision to not disclose the individual reports complicates enforcement of Indiana law.
Rokita said the reports have been publicly available since the 1970s, but there was “an abrupt change” in policy following the public access counselor’s opinion.
However, with fewer patients receiving abortions following the near-total abortion ban, the Indiana Department of Health raised concerns that releasing the full individual reports could violate patient confidentiality — especially with increased reporting requirements added in 2022.
Britt’s opinion said the statute requires IDOH to provide aggregated data in quarterly public reports, which suggests the individual forms are “non-public.”
Legal counsel for IDOH directed the concern to the public access counselor who provides advice “concerning Indiana’s public access laws” to the public and government officials.
At a press conference presenting his advisory opinion, Rokita said IDOH and the public access counselor should have consulted him. Rokita also accused IDOH and the public access counselor of “collusion” to make enforcement of the law more difficult moving forward.
READ MORE: Indiana appeals court rules abortion ban likely violates religious freedom protections
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The Access to Public Records Act has an exception for medical records, which is not defined within the act. Rokita’s advisory opinion is based on the term referring to “confidential patient records maintained by providers for diagnosis, treatment, and prognosis.”
The public access counselor’s opinion said that the IDOH should treat the form “with the same confidentiality considerations as any other patient medical record” because the context in which it was created is an “immediate consequence of a medical service.”
Rokita claimed the reports should be released in their entirety for the sake of enforcement. Despite that, Rokita’s response to patient privacy concerns was that IDOH can redact information that could be used to identify patients.
The public access counselor’s opinion pointed to the state medical licensing board's recent decision – even disclosing partial or seemingly “non-identifiable” information could lead to a patient being identified and the provider facing legal consequences.
Dr. Caitlin Bernard received a letter of reprimand and a fine in 2023 over a patient privacy complaint Rokita filed to the Indiana Medical Licensing Board. It was related abortion care she provided shortly after Ohio's six-week ban took effect. Bernard told an Indianapolis Star reporter about providing care to a 10-year-old Ohio rape victim. The Medical Licensing Board decided that was enough information to violate federal and state confidentiality laws.
At the time, a spokesperson for the attorney general’s office declared victory for patient privacy.
Rokita said the information is not being disclosed and is “going to a state agency for investigatory purposes.”
He called back to the Bernard case.
“No one's taking this information, for example, and going to a political rally for a reporter to pick them up or anything like that,” Rokita said. “So it's unlike recent situations we've had in the past.”
However, the advisory opinion said they should be accessible as public records, which would require them to be disclosed to more than just a state agency. Rokita said that anyone who requested the information from IDOH “should” be able to access it.
Neither Rokita’s advisory opinion nor the public access counselor’s opinion are legally binding.
Abigail is our health reporter. Contact them at aruhman@wboi.org.