Judge Rules San Diego County Can Keep COVID-19 Outbreak Locations Secret
Friday, November 20, 2020
Photo by Milan Kovacevic
A San Diego Superior Court judge Thursday ruled against a group of local news organizations seeking more detailed information from county officials about the locations of COVID-19 outbreaks.
Currently, the county only publicly releases outbreak counts by city and does not provide specific details about community outbreak locations beyond broad descriptions such as “bar/restaurant” or “business.” The county defines an outbreak as three or more cases in one location among people who are not members of the same household.
The news organizations, which include Voice of San Diego, The San Diego Union-Tribune and KPBS, had at various times asked the county to provide the exact location of outbreaks. In August, they sued the county under the California Public Records Act after receiving multiple denials for this information.
In making his ruling, Judge Joel R. Wohlfeil said he had to balance the public interest in keeping the information secret with the public interest in releasing it. Wohlfeil ended up siding with the county, which argued that if businesses know they will be named as having COVID outbreaks, they would be less likely to report outbreaks to the county.
County officials made this argument even though establishments are required by state law to report outbreaks.
"This is not a situation where the County puts forth some vague assertion of public endangerment," Wohlfeil wrote in his ruling. "Instead, (San Diego County Public Health Officer) Dr. Wooten's opinion is based, in part, on her experience in the field of public health. Further, the disclosure of the location of a small outbreak at, for example, a small business, may result in the ability to identify infected individuals who work at or patronize that business."
Identifying specific infected individuals would compromise their privacy, the judge wrote.
KPBS's director of news and editorial strategy Suzanne Marmion said she is disappointed with the ruling and sees it as a significant blow against the public’s right to know potentially life-saving information in the midst of a once-in-a-century health crisis.
"KPBS took this case to begin with in the public interest," she said. "People were contacting us and the number one question they kept having was tell us the location of these outbreaks. People want to know and get tested, and for that to happen as quickly as possible, so we think there's a really important role for news outlets, including KPBS, to play in a pandemic. We can get the word out really quickly so people can take action to protect themselves and protect others."
Marmion wants to appeal Wohlfeil’s ruling. Jeff Light, the publisher of The San Diego Union-Tribune, and Scott Lewis, the editor and CEO of Voice of San Diego, also said on Friday that they want to appeal.
"We do not agree with the assessment and would like to further pursue the data," Lewis said. "Our community has responded overwhelmingly in favor of gaining access to as much data as possible to reveal where the virus is spreading and why."
During a hearing last month, county lawyer John Cooley, said the county’s contact tracing program "would break down" if more detailed outbreak information were made public.
"Without voluntary disclosures, the county can't do the necessary contact tracing," Cooley said. "The county depends on voluntary disclosures to combat the pandemic here. There's no way for the county to find out if a mom and pop shop on El Cajon Boulevard had an outbreak if they don't disclose it."
But Felix Tinkov, the attorney representing the media outlets, said the public needs to know the locations of COVID outbreaks because, for example, contact tracers may not be able to reach everyone who was at a restaurant where the virus was spread.
Tinkov also argued that allowing the county to keep the information secret sets a dangerous precedent.
"To simply state that the county has a right to deny the public the right to know these locations is in effect saying the county will always have that right, that there is never a time when the public might know," he said.
Even more dangerous, TInkov said, is the county’s position that records should be kept secret because making them public would incentivize organizations to break the law by not reporting outbreaks.
"To say, we will not release records on the basis of the fear of someone else breaking the law, it would simply obviate the purpose of anything having to do with exemptions under the Public Records Act," he said. "Because one could fear any law being broken."
Cooley argued that fighting the COVID pandemic means placing extra trust in and giving extra discretion to public health officers.
"In these times it's so important that the court does not second guess the decision of a public health officer," he said. "If the news media believes they can do a better job by publicizing this information, that's their belief, but it's not their decision. It's the public health officer's decision what's the best way to combat the pandemic."
But KPBS’ Marmion said the information would also increase accountability for businesses and for the government.
"If a business is a repeat offender, it's important for the public to know that so we can do something about it," she said.
San Diego County Supervisor Dianne Jacob said this week that she supports releasing the community outbreak information to the public, but she doesn't have enough support from fellow supervisors to bring the issue to a vote.
"I believe the public has a right to know the name and location where these outbreaks have occurred,” she said on Thursday.
After the hearing last month, Wohlfeil asked both the county and the news organizations to provide additional arguments about whether state law dictates that public health information be kept confidential. Both sides prepared briefs, which the judge reviewed before making his final ruling this week.
In his ruling, Wohlfeil acknowledged the importance of making public government records.
"The Court does not lightly reach its conclusion that the County is excused from providing the un-redacted location information," he wrote. "A democratic society cannot long function if its government operates in the dark, away from the light of public scrutiny. Reputable news organizations, such as the Petitioners in this action, should be permitted to investigate and inform public opinion."
But not in this case, he wrote.
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