State ex rel. Adams Cty. Historical Soc. v. Kinyoun

State of NebraSka ex rel . adamS C ouNty H iStoriCal
SoCiety, appellaNt aNd CroSS-appellee , v.
NaNCy kiNyouN, appellee aNd
CroSS-appellaNt.
765 N.W.2d 212
Filed May 15, 2009. 	No. S-08-339.
1. Judgments: Statutes: Appeal and Error. Statutory interpretation is a matter of
law in connection with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determination made by the
trial court.
2. Records: Mandamus. Nebraska’s public records statutes outline the procedure
to be followed if a request for public records is denied. Under Neb. Rev. Stat.
§ 84-712.03 (Reissue 2008), any person denied any rights granted under the
public records statutes may either file for a writ of mandamus in the district court
with jurisdiction or petition the Attorney General to review the matter.
3. Actions: Records: Proof: Appeal and Error. Neb. Rev. Stat. § 84-712.03
(Reissue 2008) provides that in any suit filed under the public records statutes,
the court has jurisdiction to enjoin the public body from withholding records, to
order the disclosure, and to grant such other equitable relief as may be proper.
The court shall determine the matter de novo, and the burden is on the public
body to sustain its action.
4. Records. Under Neb. Rev. Stat. § 84-712(1) (Reissue 2008), citizens of the state
have the right to examine and make copies of most public records.
5. Records: Words and Phrases. Public records include all records and documents,
regardless of physical form, of or belonging to this state; any county, city, village,
political subdivision, or tax-supported district in this state; or any agency, branch,
department, board, bureau, commission, council, subunit, or committee of any of
the foregoing.
6. Records. Under Neb. Rev. Stat. § 84-712.05(2) (Reissue 2008), medical
records, other than records of births and deaths, may generally be withheld from
the public.
Appeal from the District Court for Adams County: terri S.
H arder, Judge. Writ of mandamus granted.
Thomas R. Burke, of Davis Wright Tremaine LLP, and
Shawn D. Renner, of Cline, Williams, Wright, Johnson &
Oldfather, L.L.P., for appellant.
Paul M. Kaufmann, Special Assistant Attorney General,
for appellee.
Sarah Stilwill, of Peters Law Firm, P.C., and Lucy A.
Dalglish, Corinna J. Zarek, and Hannah Bergman, of Reporters
STATe ex ReL. ADAMS CTy. HiSTORiCAL SOC. v. KiNyOUN 	749
Cite as 277 Neb. 749
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:51 AM CST

Committee for Freedom of the Press, for amici curiae Reporters
Committee for Freedom of the Press et al.
Shane e. Perkins, of Whelan & Scherr, for amici curiae Lee
Wigert et al.
H eaviCaN, 	C.J., 	C oNNolly, 	G errard, 	StepHaN, 	and
mCC ormaCk, JJ.
H eaviCaN, C.J.
iNTRODUCTiON
The Adams County Historical Society (ACHS) brings this
writ of mandamus to compel Nancy Kinyoun, custodian of
records at the Hastings Regional Center (HRC), to release the
names of 957 people buried in the adjoining cemetery. ACHS
claims that the information is a public record as defined by
Neb. Rev. Stat. § 84-712.01 (Reissue 2008) and that Kinyoun
did not have sufficient reason to deny access to that infor-
mation. Kinyoun and the Department of Health and Human
Services (DHHS) claim the federal Health insurance Portability
and Accountability Act of 1996 (HiPAA)1 and Nebraska’s pub-
lic records statutes prevent the release of this information.
Kinyoun and DHHS claim this issue is inappropriate for a writ
of mandamus.
We find that this action is appropriate for a writ of man-
damus and that the information sought is a public record as
defined by § 84-712.01. We therefore grant the request of
ACHS and order Kinyoun to release the requested information
in conformity with our opinion below.
FACTS
The facts of this case are relatively straightforward. HRC
was created in 1887 as an “asylum for the incurable insane.”2
Currently, HRC is a state-run institution operated by DHHS.
HRC burial records date back to 1909 and indicate that the
last burial occurred there in 1959. Graves are marked only by
1 42 U.S.C. § 1320d et seq. (2006).
2 Gen. Stat. ch. 48, § 1, p. 475 (1887).
750 	277 NeBRASKA RePORTS

patient numbers, and the burial records consist of handwrit-
ten journals listing patient name, date of death, and medical
record number. The records also contain maps with the graves
and patient numbers which can be compared to the records in
the journals.
ACHS is a nonprofit organization dedicated to collecting
and preserving the history of Adams County, Nebraska, and the
surrounding area. ACHS requested information from Kinyoun
consistent with its mission to collect and preserve histori-
cal data. Kinyoun denied the request, citing state and federal
privacy laws. ACHS requested that the Nebraska Attorney
General’s office review the matter pursuant to Neb. Rev. Stat.
§ 84-712.03 (Reissue 2008) and recommend that Kinyoun
and DHHS reverse their position. The Attorney General, how-
ever, agreed with the position taken by Kinyoun and DHHS.3
in response, ACHS filed a mandamus action pursuant to
§ 84-712.03. A hearing was held in Adams County District
Court, and Kinyoun’s decision not to release the records
was upheld. We moved the case to our docket to determine
whether the information sought is a public record as defined
by § 84-712.01.
ASSiGNMeNTS OF eRROR
ACHS assigns that the district court erred when it (1)
excluded certain pieces of evidence, based on relevancy, hear-
say, and foundational grounds, and (2) upheld Kinyoun’s
decision to deny access to the records. Kinyoun has cross-
appealed, alleging that mandamus is not an appropriate remedy
in this case.
STANDARD OF ReVieW
[1] Statutory interpretation is a matter of law in connection
with which an appellate court has an obligation to reach an
independent, correct conclusion irrespective of the determina-
tion made by the trial court.4
3 Att’y Gen. Op. No. 04018 (Apr. 20, 2004).
4 Japp v. Papio-Missouri River NRD, 271 Neb. 968, 716 N.W.2d 707
(2006).
STATe ex ReL. ADAMS CTy. HiSTORiCAL SOC. v. KiNyOUN 	751
Cite as 277 Neb. 749

ANALySiS
Resolution of this case revolves around the interpretation of
Nebraska’s public records statutes in conjunction with HiPAA
and our state’s privacy provisions. in essence, the question is
whether the records sought by ACHS can be classified as pub-
lic records under § 84-712.01 and whether HiPAA and/or our
state’s privacy provisions bar release. Because the issue is one
of statutory interpretation, we review the matter de novo and
need not reach ACHS’ claims that evidence was improperly
ruled inadmissible. However, we first address Kinyoun’s claim
that this action is not appropriate for a writ of mandamus.
CaN aCHS requeSt Writ of maNdamuS
iN tHiS matter?
Traditionally, “mandamus” was a law action and was defined
as an extraordinary remedy, not a writ of right, issued to com-
pel the performance of a purely ministerial act or duty, imposed
by law upon an inferior tribunal, corporation, board, or person,
where (1) the relator has a clear right to the relief sought, (2)
there is a corresponding clear duty existing on the part of the
respondent to perform the act, and (3) there is no other plain
and adequate remedy available in the ordinary course of law.5
Kinyoun claims that under the traditional definition of man-
damus, release of the information is not purely ministerial.
Kinyoun also claims that ACHS has no clear right to the names
requested, that she has no duty to release the names, and that
ACHS has other remedies available.
[2,3] Nebraska’s public records statutes outline the pro-
cedure to be followed if a request for public records is
denied, however, and provide the appropriate relief. Under
§ 84-712.03, “[a]ny person denied any rights granted” under
the public records statutes may either file for a writ of man-
damus in the district court with jurisdiction or petition the
Attorney General to review the matter. The statute goes on to
provide that in any suit filed under the public records statutes,
“the court has jurisdiction to enjoin the public body from
withholding records, to order the disclosure, and to grant such
5 State ex rel. Johnson v. Gale, 273 Neb. 889, 734 N.W.2d 290 (2007).
752 	277 NeBRASKA RePORTS

other equitable relief as may be proper. The court shall deter-
mine the matter de novo, and the burden is on the public body
to sustain its action.”
We note that ACHS attempted to follow both procedures
outlined under § 84-712.03, first by requesting the Attorney
General to review Kinyoun’s decision, then by petitioning the
district court for a writ of mandamus after the Attorney General
upheld Kinyoun’s decision. ACHS has therefore exhausted its
statutory remedies. This writ of mandamus is properly before
us. We next turn to the question of whether HiPAA and/or our
privacy laws preclude release of these records.
Hipaa’S appliCatioN to HrC’S reCordS
Kinyoun claims that HiPAA precludes the release of burial
records because such records constitute “protected health infor-
mation.”6 HiPAA was enacted to safeguard medical information
and to “improve the efficiency and effectiveness of the health
care system by facilitating the electronic exchange of informa-
tion with respect to financial and administrative transactions
carried out by health plans, health care clearinghouses, and
health care providers.”7 Under 42 U.S.C. § 1320d(6),
[t]he term “individually identifiable health information”
means any information, including demographic informa-
tion collected from an individual, that—
(A) is created or received by a health care provider,
health plan, employer, or health care clearinghouse; and
(B) relates to the past, present, or future physical or
mental health or condition of an individual, the provi-
sion of health care to an individual, or the past, present,
or future payment for the provision of health care to an
individual, and—
(i) identifies the individual; or
(ii) with respect to which there is a reasonable basis to
believe that the information can be used to identify the
individual.
6 Brief for appellee at 10.
7 Standards for Privacy of individually identifiable Health information, 67
Fed. Reg. 14776 (Mar. 27, 2002).
STATe ex ReL. ADAMS CTy. HiSTORiCAL SOC. v. KiNyOUN 	753
Cite as 277 Neb. 749

Kinyoun claims, and we agree, that HRC is an entity covered
by HiPAA and that the burial records constitute the “individu-
ally identifiable health information” that HiPAA was designed
to protect.8 And, under 45 C.F.R. § 164.502(f) (2008), “[a] cov-
ered entity must comply with the requirements of this subpart
with respect to the protected health information of a deceased
individual.” Therefore, HiPAA and its attendant regulations do
apply to deceased individuals.
Under the Code of Federal Regulations governing HiPAA
and the dissemination of private medical information, how-
ever, there is an exemption for information required to be
released by law, and 45 C.F.R. § 164.512 (2008) defines
“[u]ses and disclosures for which an authorization or opportu-
nity to agree or object is not required.” Subpart (a)(1) of that
section defines the standard for uses and disclosures and states
that those disclosures may be made to the extent required by
law, if in compliance with and limited to the relevant require-
ments of such law. “Required by law” is defined under 45
C.F.R. § 164.103 (2008) as “a mandate contained in law that
compels an entity to make a use or disclosure of protected
health information and that is enforceable in a court of law.”
This provision includes statutes and regulations that require
the production of the information, such as Nebraska’s public
records statutes.9
[4-6] Nebraska, like the federal government and many other
states, has broad public records laws that generally provide
open access to governmental records. Under Neb. Rev. Stat.
§ 84-712(1) (Reissue 2008), citizens of the state have the right
to examine and make copies of most public records. “Public
records” include “all records and documents, regardless of
physical form, of or belonging to this state, any county, city, vil-
lage, political subdivision, or tax-supported district in this state,
8 Brief for appellee at 9.
9 See, e.g., Abbott v. Texas Dept. of Mental Health, 212 S.W.3d 648 (Tex.
App. 2006); State ex rel. Enquirer v. Daniels, 108 Ohio St. 3d 518, 844
N.e.2d 1181 (2006); HiPAA Frequent Questions, Permitted Use and
Disclosure, Disclosures Required by Law, http://www.hhs.gov/hipaafaq/
permitted/require/506.html (last visited May 12, 2009).
754 	277 NeBRASKA RePORTS

or any agency, branch, department, board, bureau, commission,
council, subunit, or committee of any of the foregoing.”10 As a
state-supported institution, HRC is subject to the public records
statutes. Under Neb. Rev. Stat. § 84-712.05(2) (Reissue 2008),
however, “[m]edical records, other than records of births and
deaths,” may generally be withheld from the public. (emphasis
supplied.) ACHS argues that the records sought in this case are
records of deaths as defined by the statute.
Kinyoun counters this argument by claiming that the records
ACHS is requesting are part of the deceased patients’ medical
records. She contends that because all of those patients buried
in the HRC cemetery had been patients at HRC when they
died, releasing their names is equivalent to releasing medical
records. For that reason, Kinyoun claims, the burial informa-
tion is part of the medical record that HRC is required to
keep, and HiPAA prohibits the release of the medical records
because they constitute “individually identifiable health infor-
mation” as a result.11
We do not find Kinyoun’s argument persuasive, however, and
we find that the records sought are “records of . . . deaths.”12
First, the information sought by ACHS is more limited than the
information available on a death certificate. Death certificates
are available to the public. Neb. Rev. Stat. § 71-605(2) (Cum.
Supp. 2008) requires that death certificates include the Social
Security number of the deceased, as well as “the cause, dis-
ease, or sequence of causes ending in death”; the death certifi-
cate entered into the record as an exhibit in this case shows the
“Place of Burial or Removal.”
Second, those patients admitted to HRC were admitted for
a variety of reasons. The record reflects that patients were
admitted to HRC for issues relating to substance abuse, senil-
ity and dementia relating to old age, various psychotic dis-
orders, “mental deficiencies,” and other undiagnosed mental
disorders. The fact that the deceased persons were treated at
10 § 84-712.01(1).
11 See 42 U.S.C. § 1320d(6).
12 See § 84-712.05(2).
STATe ex ReL. ADAMS CTy. HiSTORiCAL SOC. v. KiNyOUN 	755
Cite as 277 Neb. 749

HRC does not indicate the nature of their diagnoses, or even
the causes of death—information routinely released via death
certificates. Furthermore, the records sought by ACHS do
not include diagnosis or treatment information, but instead
are limited to the names of the deceased and the locations
of burial.
ACHS cites two cases from other states in which courts
have allowed the release of information in spite of HiPAA
due to the application of state open records laws.13 Kinyoun,
in contrast, has not cited any cases which address the inter-
section of HiPAA with state or federal open records laws.
Although the cases ACHS cited are not directly on point,
the cases are instructive, because the information sought did
not identify individuals. Both cases demonstrate that HiPAA
can and does give way to state laws requiring disclosure of
certain kinds of information.14 Therefore, in this situation,
HiPAA does not bar release of the information, and Kinyoun
has not met her burden to establish a reason to withhold the
burial records.
NebraSka StatuteS do Not preveNt
releaSe of reCordS
Kinyoun also argues that the burial records should remain
private under various Nebraska statutes. Under the Nebraska
Mental Health Commitment Act’s section on records, Neb.
Rev. Stat. § 71-961 (Cum. Supp. 2008), all records of any
mental health patient are to remain confidential unless other-
wise provided by law. Neb. Rev. Stat. § 83-109 (Reissue
2008) states that “[a] record of every patient or resident of
every institution shall be kept complete from the date of his
or her entrance to the date of his or her discharge or death . .
. .” Neb. Rev. Stat. § 27-504(3) (Reissue 2008) states that the
physician-patient privilege “may be claimed by the patient
or client . . . or by the personal representative of a deceased
patient or client.”
13 See, e.g., Abbott v. Texas Dept. of Mental Health, supra note 9; State ex
rel. Enquirer v. Daniels, supra note 9.
14 Id.
756 	277 NeBRASKA RePORTS

None of these statutes are applicable to the records in this
case, however, for the same reasons that HiPAA does not
apply. Sections 27-504(3), 71-961, and 83-109 all deal with
medical records or patient histories. As already stated, we find
that the records requested by ACHS are records of deaths, and
§ 84-712.05(2) specifically allows release of “records of births
and deaths.” Because we have found that these records are
records of deaths, they are not prohibited from release under
§ 27-504(3), § 71-961, or § 83-109.
CONCLUSiON
Although HiPAA prevents the release of individually identi-
fiable medical information, it also provides for release of infor-
mation when required by state law. Nebraska’s public records
statutes require that medical records be kept confidential, but
exempt birth and death records from that requirement. Our pri-
vacy laws also apply to medical records and patient histories,
but not to records of deaths. The records sought by ACHS are
records of deaths and therefore are public records. Kinyoun
is hereby ordered to release the information under the public
records statutes.
Writ of maNdamuS GraNted.
miller-lermaN, J., participating on briefs.
WriGHt, J., not participating.
tex r. H arvey et al ., appellaNtS aNd CroSS-appelleeS, v.
NebraSka life aNd H ealtH iNSuraNCe G uaraNty
aSSoCiatioN, appellee aNd CroSS-appellaNt.
765 N.W.2d 206
Filed May 15, 2009. 	No. S-08-520.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. in reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
HARVey v. NeBRASKA LiFe & HeALTH iNS. GUAR. ASSN. 	757
Cite as 277 Neb. 757