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The California Supreme Court has decided not to review a public records case filed by San Diego media outlets, putting an end to a 15-month legal effort that attempted to make Covid-19 outbreak location data available to everyone.
The decision not to take up the case isn’t surprising — the justices only agree to hear so many petitions every year — but it’s still disappointing for open government groups supporting the lawsuit.
Voice of San Diego, KPBS and the Union-Tribune teamed up last year to sue the county. The First Amendment Coalition and other groups provided arguments in support. In July, the Appellate Court ruled that, while the information was clearly of interest to the public, San Diego County could continue to keep it secret, even though other states and municipalities, including Los Angeles County, produce it.
The case ultimately rested on the word of Wilma Wooten, the county’s public health officer, who argued that the release of outbreak data — community sites where three or more people who tested positive for COVID-19 had visited over a two-week period — would chill the contact tracing process and stigmatize those locations. The judges took her at her word.
Although the ruling sets a narrow precedent limiting the public’s right to access certain information during an emergency, several public records attorneys have expressed alarm that one person could determine access based on their theory of what would happen with its release.
No one disputed Wooten’s credentials, but the ruling was at odds with previous case law — finding that an official’s best guess about what might happen in the future wasn’t sufficient — and the standards established by the state Legislature in the Public Records Act because it relied on the declaration of a single official.
Agencies seeking to withhold records in this instance — under an exemption known as the “catch-all” — must prove that the public is better served by not sharing them. In other words, the burden falls on the government to show harm. But the Appellate Court essentially ruled that Wooten’s testimony was competent, credible and therefore good enough.
It came to this conclusion despite the fact that KPBS got its hands on Covid-19 location data late last year and no one from the county argued those stories undermined public trust. Contact tracing has been falling short but one report suggests it’s for a variety of reasons, including language barriers and a reluctance to potentially out someone who’s undocumented.
Shannon Jankowski, senior legal fellow at Reporters Committee for Freedom of the Press, said she was disappointed that the courts let the county off without proving its burden under the law beyond offering an opinion. The public health emergency only heightens the stakes for not releasing it — previous judges have determined that the gravity of the situation underlying the records is relevant.
“The court needs to be holding governments accountable during covid and even more importantly, because of covid,” she said.
Felix Tinkov, the attorney who argued in court on behalf the media outlets, said the case effectively raised the bar for when someone wants to challenge an agency that refuses to give up records citing the expertise of its own employee.
“That’s the table that’s been set now by this decision,” he said. “We need to find some sort of counterbalancing expert opinion to disprove the agency’s opinion.”
Organizations with resources might be able to do that. But it’s an entirely different question for the average person.