The Freedom of Information Law (FOIL) is a series of laws designed to guarantee that the public has access to public records of governmental bodies in New York. New York’s first such law was passed in 1974. That law was repealed and replaced in 1977 with a significantly changed law. Important amendments to the law were made in 1982, 2005 and 2008.
_ Under FOIL, a “record” is defined as “any information kept, held, filed, produced, or reproduced by, with or for an agency or the state legislature, in any physical form whatsoever.” _ In Capital Newspapers v. Whalen, a 1987 case, a New York court said that a document in the keeping of a government agency does not have to have a specifically governmental purpose in order to fall under FOIL. The court said that looking at the legislative history of FOIL, they did not see a “content-based limitation in defining the term ‘record’… Moreover … permitting an agency to engage in a unilateral prescreening of those documents which it deems to be outside the scope of FOIL would be inconsistent with [the statute].”
_ Documents are still covered by the act if a promise of confidentiality has been given. In Washington Post v. Insurance Department, a 1984 case, a court said that a “promise of confidentiality … is irrelevant to whether the requested documents fit within the Legislature’s definition of records … Nor is it relevant [whether] the documents originated outside the government.”
_ Documents that are in temporary possession of someone else or some other agency are still covered by the act, and must be furnished to a requestor by the agency that is or should be responsible for the documents.
_ Documents that originated outside the government, but which have come into the possession of the government, are covered by the law.
_ Agencies that are covered by FOIL are required prepare a “reasonably detailed current list by subject matter” of all records in their possession.
NY Pub. Off. Law Sec. 84
Since 2006, FOIA lawsuits have increased 57% and the cost of defending these lawsuits is millions of dollars.
With Evertel, we provide an efficient, proven, and effective manner to share FOIA documents to those requesting. Once your legal experts provide the policy, the executives auditing your agency’s platform can immediately release the approved documents in minutes, avoiding multi-year litigations and expensive legal costs.
The Federal Bureau of Investigation’s CJIS Security Policy sets the minimum security requirements to provide an acceptable level of assurance to protect the full lifecycle of Criminal Justice Information. Agencies using cloud-based services are required to make informed decisions on whether or not the cloud provider can offer services that maintain compliance with the requirements of the CJIS Security Policy.
The CJIS Security Policy integrates presidential and FBI directives, federal laws, and the criminal justice community’s Advisory Policy Board decisions, along with guidance from the National Institute of Standards and Technology (NIST). The Policy is periodically updated to reflect evolving security requirements.
The CJIS Security Policy defines 13 areas that private contractors such as cloud service providers must evaluate to determine if their use of cloud services can be consistent with CJIS requirements. These areas correspond closely to NIST 800-53, which is also the basis for the Federal Risk and Authorization Management Program (FedRAMP) program.
The key agency requirements of CJIS compliance are summarized here:
It is important to note upfront that HIPAA compliance requirements are primarily focused on health providers. Having said that, government agencies, and in particular 1st Responders, are typically transmitting HIPAA data daily and in non-compliant fashions. In today’s litigious world, it makes sense to comply with HIPAA requirements and remove or minimize the risk.
HIPAA violations are expensive. The penalties for noncompliance are based on the level of negligence and can range from $100 to $50,000 per violation (or per record), with a maximum penalty of $1.5 million per year for violations of an identical provision. Violations can also carry criminal charges that can result in jail time.
Fines increase with the number of patients and the amount of neglect. The lowest fines start with a breach where you didn’t know and, by exercising reasonable diligence, would not have known that you violated a provision. At the other end of the spectrum are fines levied where a breach is due to negligence and not corrected in 30 days. In legalese, this is known as mens rea (state of mind). So fines increase in severity from no mens rea (didn’t know) to assumed mens rea (willful neglect).
The fines and charges are broken down into 2 major categories: Reasonable Cause and Willful Neglect. Reasonable Cause ranges from $100 to $50,000 per incident and does not involve any jail time. Willful Neglect ranges from $10,000 to $50,000 for each incident and can result in criminal charges.
While encryption is an addressable (rather than required) specification, it does not mean optional. The vast majority of data breaches are due to stolen or lost data that was unencrypted. When in doubt, you should implement the addressable implementation specifications of the Security Rule. Most of them are best practices.
Breaches can occur when employees lose unencrypted portable devices, mistakenly send PHI to vendors who post that information online and disclose personally identifiable, sensitive information on social networks.
These are all examples from actual cases. Employee training and adherence to security policies and procedures are extremely important.
Almost half of all data breaches are the result of theft. When laptops, smartphones, etc. are unencrypted the risk of a breach increases considerably. With Evertel, your data is safely stored off-premise; so that a lost or stolen mobile phone or laptop has no data on it and hence and no PHI is compromised.
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