Dear Maryland State Health Chief: What Actions Are You Taking on the Incident Report of the North Baltimore Aquatic Club Swimmer’s Drowning?

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Following is the text (minus salutation and closing) of an email sent Thursday night to Dr. Joshua Sharfstein, Maryland’s Secretary of the Department of Health & Mental Hygiene.

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I am following up on requests for answers to questions I posed to the Department after receiving your response to my public information request for the incident report submitted by the Meadowbrook Aquatic Center in Baltimore in connection with the October 2012 drowning death of 14-year-old Louis Lowenthal. For your reference, I have attached a PDF file of the response from Dr. Clifford Mitchell. (Dr. Mitchell is being cc’d here, as is Karen Black of your communications staff.)

After studying the Maryland Public Information Act Manual, I seriously question whether DHMH is justified in redacting certain information disclosed by Meadowbrook on the grounds that it “would be considered protected health information.” I say so for a couple of reasons. What I think is the compelling and specific reason is that the report pertains to a deceased person, the circumstances of whose death are by definition a matter of public interest; by implication at least, that is the same category as an autopsy. The second and more general reason is that an overbroad interpretation of protected information defeats the fundamental function of this particular disclosure form; such an interpretation, on its face, is counterintuitive and tautological. Accordingly, I have asked counsel to help assess whether I should file a legal appeal.

In the meantime, for my ongoing coverage, I seek your statement for the record on the following questions in the aftermath of the Baltimore tragedy:

1. Meadowbrook appears not to have been compliant with the requirement to file the incident report within 24 hours of the Lowenthal drowning. What is the general enforcement mechanism for this provision? And what is DHMH’s specific disposition of the lapse here?

2. Is there a routine procedure for follow-up on an incident report involving a public pool death? What is that procedure? What has happened subsequent to the incident report vis-a-vis the Lowenthal matter — in terms of contacts between DHMH and the aquatic center; site visits by an inspector or investigator; and/or recommendations or comments for prospective corrective action?

Respectfully,
Irvin Muchnick

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