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LAFD Chief Brian Cummings' Media Blackout Is Illegal and Self-Serving, Says LA.'s Top Free-Speech Attorney

If he keeps this up, Chief Cummings will be the new Sheriff Baca in no time.
If he keeps this up, Chief Cummings will be the new Sheriff Baca in no time.
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[Update: Mayor Antonio Villaraigosa, who hand-picked Cummings and has been lovingly tugging at the chief's puppet strings ever since, totally humiliated his political plaything this afternoon by demanding -- via passive-aggressive "open letter" -- that the LAFD go back to its old method of full disclosure. More, after the jump. Originally posted at 12 p.m.]

Brian L. Cummings, chief of the Los Angeles Fire Department, not only put the city in jeopardy by releasing false response times earlier this year.

Nope. He has also managed to violate the California Public Records Act by now halting the release of response times and addresses to L.A. news outlets.

Kelli Sager, a star L.A. attorney who often deals with the First Amendment and the media, says Cummings' argument for the public-info blackout has absolutely "no legal basis" and, as far as she can tell, violates state law.

Cummings claims he was advised by L.A. City Attorney Carmen Trutanich to stop giving out the details of LAFD responses because that might violate the HIPAA Privacy Rule. His statement reads:

"The City Attorney has preliminarily opined that the Department should immediately cease the practice of releasing [Private Health information] to any source not specifically authorized under the Privacy Rule's treatment, billing, and operations exemption."

The decision comes in the midst of both a response-time scandal at the L.A. Fire Department and a sticky situation for the City Attorney, re: Demi Moore's leaked 911 call.

Although Sager had not been notified of the LAFD blackout at the time we spoke with her, she says it appears that the two city agencies are "taking a law that was meant for something entirely different and trying to make it" fit their interests.

According to Sager, the Public Records Act stipulates that cops, firefighters, paramedics, etc. must release the names and addresses involved in emergency calls.

"There is a general provision about privacy that says they can withhold information that would unreasonably interfere with someone's privacy rights," she says. But "the mere fact that [someone is] making the call doesn't reveal private information."

Releasing a response time or address "doesn't reveal anything about the nature of what happened at the address," argues Sager.

The firestorm began on Tuesday, when City News Service asked LAFD officials for times and locations on a fire-hydrant shearing and fatal food-truck crash.

After speaking with LAFD media officers, City News reported that the department would no longer be releasing "basic information about fires, medical calls, traffic accidents or other emergencies it responds to."

It's all very confusing, because the department keeps changing its story. The LAFD's public-relations staff tell the Weekly this morning that they're only withholding response times and addresses on incidents where injury was involved, while waiting on further word from the L.A. City Attorney.

But from Sunday through Wednesday morning -- when the "media blackout" story blew up -- not a single one of the LAFD's press emails nor Tweets contained a time stamp/address.

"Were we overprotective initially? Yes," says spokesman Matt Spence. "We will still provide timely and accurate information for the media. It's evolving."

As of this morning, the LAFD says it will only be withholding information on emergencies involving injury. But even then, Cummings and Trutanich are "completely wrong," says Sager. "This has nothing to do with anyone's privacy."

We've contacted Cummings for comment. As for the L.A. City Attorney -- his spokespeople are claiming attorney-client privilege, as usual. Even though both attorney and client are public agencies, paid for by the people of Los Angeles.

UP NEXT: Villaraigosa gives Chief Cummings a good spanking.

Cummings and Villaraigosa, back when they were buds.
Cummings and Villaraigosa, back when they were buds.
Flickr

Today was a hectic one for L.A. politicians trying to react just the right way to Cummings' egregious disrespect for the Public Records Act.

And in the end, they all pretty much threw him under the bus.

City Councilman Mitch Englander led the accountability crusade by calling an "emergency meeting" for Friday at 2 p.m., at which the council's Public Safety Committee would discuss this shady new media blackout.

(Of course, a meeting for Friday at 2 p.m. isn't an "emergency meeting" at all -- more a safe procrastination date, ensuring that the issue will either be resolved by then or that everyone will have forgotten about it in anticipation for the weekend. Yup! That's the council's most tried-and-true way to look like they're addressing controversy, when really they're just letting it trail off pathetically.)

Then the City Attorney's Office confirmed to ace City News Service reporter Richie Duchon that Trutanich wasn't the one to initiate the HIPAA panic:

Chief Deputy City Attorney William Carter said the City Attorney's Office has not changed its legal opinion in recent years on how to abide by medical privacy laws when releasing information about medical emergencies to the public.

"The City Attorney's Office does not have a practice or pattern of ordering media blackouts,'' Carter said. "We don't give orders to the police chief, and we don't give orders to the fire chief. ... The city attorney provides legal advice and recommendations to our client just as with every other department. We don't make policy."

And last but not least, Mayor Villaraigosa turned on Cummings, blaming him for this whole mess in a public statement:

"In the absence of a written legal opinion giving your department guidance, I believe it is our duty to provide information to the media and the public. At a time when the Los Angeles Fire Department needs more transparency -- not less -- I am directly you to immediately resume releasing information that provides LAFD incident specifics without violating federal law.

Ouch. So we now know that the City Attorney never gave Cummings any written order to adhere more strictly to HIPAA, and the fire chief was apparently just using it as an excuse to closet those controversial response times.

Peter Scheer, executive director of California's First Amendment Coalition, confirmed free-speech attorney Segal's convictions to the Weekly this afternoon.

"HIPAA doesn't preclude the making public of information which basically is anonymous," said Scheer. He also called the timing of the media blackout "suspicious, and definitely underscoring the importance to the public of the release of this information."

Tell us: Can the chief ever bounce back from a flogging so vicious? And for further reading, see "L.A. Firefighters Reveal Devastating Effects of Budget Cuts on Anonymous Blog."

[@simone_electra / swilson@laweekly.com / @LAWeeklyNews]


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