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County officials took steps this week to fight the release of COVID-19 information in two separate Public Records Act lawsuits filed by Voice of San Diego.
On Tuesday, the Board of Supervisors voted in closed session to appeal a recent ruling that ordered the county to provide Voice of San Diego with records of deaths linked to coronavirus.
That same day, lawyers for the county filed a new brief in another lawsuit seeking information on where COVID-19 outbreaks are happening in San Diego County, arguing that the potential harm that could come as a result of releasing the info outweighs the public’s right to the information.
Here’s where both of those legal efforts stand.
COVID-19 Death Certificates
Death certificates are public records – this is something both Voice of San Diego and San Diego County agree on.
The dispute here is procedural, and relates to the county’s responsibilities under the California Public Records Act.
In April, VOSD contributor Jared Whitlock requested copies of all death certificates listing COVID-19 as a cause of death. Those records could be used to track the virus, compare the accuracy of reported data and better understand how the county was managing the public health crisis.
The county denied the request by arguing that Whitlock must first provide the names and dates of each decedent whose death certificate he wished to view. That interpretation, VOSD’s attorney Felix Tinkov argued in the lawsuit, “turns the [Public Records Act] on its head, requiring the public to know what records its government has in order to access the information in them.”
Earlier this month, San Diego Superior Court Judge Ronald Styn sided with Voice of San Diego, and ordered the county to take steps to comply with the records request.
“Given that death certificates are publically available and considering the seriousness of the circumstances surrounding the coronavirus pandemic and the significant public interest in the County’s role in responding to the pandemic, the court finds the County fails to establish that, ‘the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record’ so as to justify withholding the records,” Styn wrote.
On Tuesday, the San Diego County Board of Supervisors met in closed session and voted 4-1 to appeal the ruling.
Supervisor Nathan Fletcher told VOSD he voted against the appeal.
“We should err on the side of transparency unless there’s a compelling reason that releasing something would impede our ability to respond to the COVID-19 pandemic,” Fletcher said. “I don’t think we should appeal. I don’t think we should have been in the situation to begin with.”
Two outgoing county supervisors said privacy concerns motivated their decision to seek an appeal.
“We have to balance the public’s right to know with an individual’s right to privacy. That is a conflict we hope the courts will resolve,” Supervisor Greg Cox wrote in an email.
Supervisor Dianne Jacob said she voted to appeal for fear that financial scammers prey on death certificates. Jacob noted she’s hosted senior forums in which officials warned against over-sharing, including in obituaries.
“Having been involved in those events, I’m very sensitive to personal information,” Jacob said.
Privacy concerns prompted a 2003 California law that restricts the distribution of birth and death indexes, and forbids “fraudulent” uses. Voice of San Diego’s records requests conform with the law, Styn ruled.
Supervisor Jim Desmond declined to comment, citing the appeal being in closed session. A spokeswoman for Supervisor Kristin Gaspar didn’t respond to an interview request.
With the board’s vote, the matter will go to the 4th District Court of Appeal.
COVID-19 Outbreak Data
Voice of San Diego also filed suit against the county in July seeking epidemiological reports detailing its contact tracing efforts.
The county had provided some information about coronavirus outbreaks in the county, but withheld details about the location of outbreaks.
KPBS and the Union-Tribune joined the lawsuit.
County officials have operated on a “Just trust us!” rationale for withholding outbreak location information, and argue that releasing more details to the public about the nature of coronavirus outbreaks could dissuade businesses from reporting cases to the county.
Jacob, however, told VOSD this week she believes the public “has a right to know where these cases are.”
Asked whether she would initiate an agenda item to make outbreak data public, Jacob said she’s brought up the matter during public meetings.
“None of my colleagues followed up on it,” Jacob said. “I could do that. But I don’t think it’s going to go anywhere. So I always like to have a chance of being successful.”
Fletcher backed up county officials, and said divulging outbreak information would undermine public cooperation in case investigations.
VOSD, KPBS and the U-T, argue in court documents that “without this data, the public remains in the dark about the efficacy, and veracity, of the county’s regular news releases regarding the current state of the COVID-19 pandemic within this region. The location data affords an opportunity to check the county’s claims with respect to its contact tracing efforts, and to verify its overall confirmed outbreak numbers.”
The county has laid out two bases for withholding the information.
First, it argued that reports the county is required to send the state about outbreaks are supposed to remain confidential.
Second, the county argued that, under a catchall exemption to the Public Records Act, releasing the records would do more harm than good. “First, identifying businesses associated with outbreaks would have a chilling effect on the future willingness of those businesses to report outbreaks. Second, disclosing outbreak locations would have the de-facto effect of revealing the identity of individuals associated with those locations, e.g. a small business with only a few employees,” Superior Court Judge Joel R. Wohlfeil wrote in a tentative ruling summarizing the county’s position.
In that tentative ruling laying out his initial thinking, Wohlfeil sided with the county.
“The county’s position has merit. This is not a situation where the county puts forth some vague assertion of public endangerment,” Wohlfeil wrote. “As discussed above, revealing outbreak location information is likely to inhibit business owners and other individuals from being forthcoming when reporting outbreaks and responding to contact tracing information requests.”
But after oral arguments, instead of affirming that position in a final order, Wohlfeil asked both sides to provide more information.
The media outlets made two arguments related to the state’s health and safety code. First, they argued that the county is overstating the extent to which information it reports to the state is confidential. Public health officials have broad discretion to make outbreak location public – indeed, Los Angeles County shares granular details about where its outbreaks occur.
Second, they argued that a bill written by Assemblyman Todd Gloria (now San Diego’s mayor-elect) in response to San Diego’s hepatitis A outbreak in 2017 – and the county’s widely derided response to that crisis – further backs up the case for disclosing the information.
AB 262, passed in 2019, requires county public health officials to provide outbreak data to individual cities. That law, the media outlets argue, includes no confidentiality stipulations – and therefore the information provided in compliance with it must be made public.
In its response, the county argued that AB 262 doesn’t apply because the law doesn’t expressly require it to provide that information to the public and the press, only individual cities.
A spokesman for Gloria did not immediately respond to a question about the county’s interpretation of AB 262 and whether he believes outbreak data should be public. In August, Gloria voted in favor of a state bill that aims to give workers notice about coronavirus outbreaks in the workplace, but a key requirement to make those worksite outbreaks public was stripped out of the final draft, CalMatters reported.
A final ruling in the case is expected later this month.