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Last month, a California appellate court ruled that San Diego County acted properly when it refused to release the specific location of COVID-19 outbreaks.
The decision came in response to a lawsuit filed by Voice of San Diego, KPBS and the Union-Tribune. Although the ruling sets a narrow precedent limiting the public’s right to access certain information during an emergency, open government advocates have expressed alarm over what it means long term.
Several public records attorneys said they’re disappointed with the Fourth District Court of Appeal’s ruling because of the message it sends to local officials and because of the evidence on which the case rested — the word of county Public Health Officer Wilma Wooten.
At its core is section 6255 of the California Public Records Act. Otherwise known as the catch-all exemption, it allows local governments to withhold information that officials have deemed sensitive. In doing so, officials will typically offer some version of a boilerplate phrase: “public interest in non-disclosure outweighs public interest in disclosure.”
In other words, regular people may have a good reason to view a record, but officials have a more compelling reason for not sharing it. Reporters and open government advocates have long viewed the catch-all exemption as an escape valve for whatever officials decide, unilaterally, should be kept secret.
When challenged, public agencies have the burden of proving that the records would cause harm if released. And for decades, judges have concluded that an official’s best guess about what might happen in the future isn’t good enough.
For instance: When considering a Los Angeles County sheriff’s decision not to release the names of people who’d applied for concealed carry permits, the California Supreme Court in 1986 wrote that a “mere assertion of possible endangerment” to the permit-holder does not meet the standard of the catch-all exemption. In 2001, the Superior Court in Fresno concluded that California State University’s decision not to disclose the identities of anonymous donors who obtained access to luxury suites in a newly constructed arena were self-serving. In 2014, the California Supreme Court agreed that Long Beach’s decision not to release the names of police officers involved in on-duty shootings for fear of harassment or retaliation were too vague.
The appellate court was not swayed by those examples and others. Instead, the judges pointed to another case in their analysis of whether San Diego County outbreak data should be publicized.
In 2008, the Humane Society sued the Regents of the University of California for refusing to give up the communications of a UC Davis professor who directed and co-wrote a study that was critical of a ballot measure related to animal confinement. The Superior Court of Yolo County oversaw the release of some records but withheld others, agreeing that disclosure would impair the professor’s ability to do research in the future.
Why? Because the professor had said so. His testimony was considered “competent.”
The judges applied this same line of thinking to Wooten when evaluating her decision to withhold outbreak data.
Over the last year, Wooten has argued that the disclosure of specific business locations visited by three or more people who’d tested positive for COVID-19 would lead to a chilling effect on the contact tracing process. People would be less willing to talk to investigators and identify, say, a beloved restaurant or a church if they knew the information would then be broadcast at-large in a way that seemed punitive, she said.
Wooten also argued that there isn’t a correlation between visiting a specific location and getting COVID-19 because the coronavirus is “everywhere.” She’s obligated to give location information to local cities to help with their containment efforts but vowed only to publicly identify a specific location if, in her opinion, it constituted an ongoing threat.
“It may satisfy curiosity but risks unfairly stigmatizing both locations and individuals linked to outbreak sites,” she co-wrote in an op-ed for the U-T.
Late last year, KPBS got its hands on outbreak location data for a roughly eight-month period in 2020 and found that many popular restaurant chains, like Olive Garden, Cheesecake Factory, Denny’s and The Broken Yolk Cafe, experienced multiple outbreaks each.
KPBS also noted in summer 2020 that the county’s contact tracing efforts were falling short for a variety of reasons. A report by the Chicano Federation shed some light on the reluctance of Hispanic residents, in particular, to cooperate with investigators. It included language and structural barriers, and the risk of outing someone who’s undocumented. Concern for the well-being of a popular business didn’t make the list.
Nevertheless, the courts agreed with Wooten and — without seeing any evidence to the contrary — concluded that her warning about future harms was “real and concrete” and that her statements deserved weight given the seriousness of the pandemic.
The media outlets and their attorney, Felix Tinkov, didn’t dispute Wooten’s credentials. She has served as the county’s public health officer for more than a decade. Rather, the case for disclosure was built around a couple points, all of which the judges downplayed or dismissed.
Tinkov argued that Wooten’s opinions were unsupported by statistics or scholarly work showing a link between disclosure and contact tracing. Instead, he said, the county had conjured a worst-case scenario to justify its secrecy. He noted that Los Angeles County has had no problem releasing location data over the course of the pandemic.
While it’s true that public health workers in Los Angeles County make fewer contacts with people during their investigations, Tinkov questioned whether a variety of factors weren’t at play, including a larger population and fewer resources for staff. In response, Wooten said she believed disclosure of specific locations was to blame, and the judges took her at her word. They wrote that media outlets were putting “undue emphasis” on Los Angeles County as a counter-example.
But Los Angeles County is far from the only municipality willing to release this type of information. Iowa’s attorney general openly believes that the public disclosure of businesses, including long-term care facilities, can help stop the spread rather than hinder it. Every week, Oregon publishes outbreaks of five or more employees at workplaces where there are at least 30 workers. In California, the Bay Area News Group reported that it had asked all 58 counties and three cities for workplace outbreak data and about a third complied.
The state Legislature approved a bill last year requiring businesses to notify their employees of outbreaks and send a report to the local public health agency. The intent was to strengthen workplace protections and transparency, but it hasn’t always turned out that way.
An early draft of the bill would have forced the state to publicize outbreaks by location but that language got cut in the last-minute discussions between worker groups and business lobbyists. Still, the records gathered by the Bay Area News Group showed that a food delivery warehouse in Contra Costa County had been the site of 171 cases — which was a revelation to the workers there.
The reporters also found that only a handful of employers have been fined for COVID-19 workplace safety violations by the state, and spoke to an epidemiologist who has a different view on the value of location data. Kirsten Bibbins-Domingo of UC San Francisco argued that public health departments refusing to release location data — what she dubbed “actionable information” — were protecting negligent employers at the expense of their employees.
In the lawsuit, Tinkov also took issue with the county’s standard for disclosure. While it’s holding steady against the release of COVID-19 location data generally, it did reveal the number of COVID-19 cases connected to students at San Diego State University last year. The county also disclosed the name and address of a restaurant involved in the hepatitis A outbreak in 2017 and a case of tuberculosis at a local high school in 2020.
The difference, according to the appellate court, was that no SDSU student’s identity was at risk of being compromised, and the hep A and tuberculosis outbreaks were much smaller in scope. Siding with Wooten, the judges added that the release of those outbreak locations “was warranted because the public could take specific action based on that information to protect themselves and prevent the spread of disease.”
Somehow, COVID-19 didn’t fall under the same rationale.
“Although members of the public understandably are interested in learning the exact location of COVID-19 outbreaks,” the judges wrote, “the disclosure of that information does little to advance either the public’s ability to avoid COVID-19 infection or the public’s understanding of whether the government is taking appropriate steps to address the pandemic.”
Kelly Aviles, a public records attorney, disagreed with the ruling and called Wooten’s claims about the disruption of the contact tracing process “completely speculative.” She said outbreak data could be mined for all sorts of insights about the county’s efforts to control the coronavirus — as well as Wooten’s performance.
The California Public Records Act is built around the principle that in a democracy we do not have to accept the unsubstantiated declarations of officials. As Aviles put it, “We have a right to see the information experts are relying on, so we can come up with our own independent review of how they’re doing.”
Others were less critical of the ruling. Every case is limited to the facts, and the appellate court was more deferential to Wooten’s testimony and expertise, said Abe Cisneros, another public records attorney. Lawmakers aren’t able to anticipate and mediate every dispute over records, which is why the California Public Records Act has plenty of uncertainty. In the end, judges must determine what is and isn’t a credible claim of harm.
“The line between what’s speculative and what’s concrete is not as black and white when we’re talking about a threat,” Cisneros said.
At the same time, he said, it would be disappointing if any public agency interpreted the ruling around outbreak data as a pretense to withhold other types of records.
The media outlets intend to appeal the case to the California Supreme Court. But its odds of getting picked up, let alone overturned, are slim.
“You’re starting to see decisions that say the government exceeded its authority in some situations, or that some counties exceeded their authority with respect to churches,” said Glen Smith, the litigation director for the First Amendment Coalition. “But in general, during an emergency, courts are going to be reluctant to second-guess government officials who are trying to deal with it in real time, unless it really impinges on iron-clad constitutional protections.”