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Expert: Terms of use for Palomar Health website problematic — 'if not completely illegal'

A North County public health care district is requiring people to accept a terms-of-use agreement to access its website. A First Amendment lawyer says it might violate public access laws. KPBS North County reporter Alexander Nguyen has the details.<br/>

As a public health care district, Palomar Health is supposed to have public records, such as meeting minutes and agendas, available online.

In order to access Palomar Health’s website, however, visitors have to accept the terms of use.

That's problematic, "if not completely illegal," said David Loy, the legal director for the First Amendment Coalition. He said he’d never seen public agencies impose these terms and conditions to access their website.

The Palomar Health website requires users to accept its terms of use for access in this screenshot captured on Sept. 26, 2023.
Palomar Health
The Palomar Health website requires users to accept its terms of use for access in this screenshot captured on Sept. 26, 2023.

“The public has a complete right to access agency records, agendas for agency meetings," Loy said. "These are public records. They belong to the people. The government serves the people. The people don't serve the government.”

The nonprofit news organization Voice of San Diego first reported the story.

California public health care districts are special districts, meaning that they aren't part of municipal or county government. Instead, they are governed by a five-member board of directors and the public.

Of the 75 public health districts in California, Palomar is the only to use a website that requires visitors to agree to terms of use.

Loy said that, by imposing the terms of use, Palomar could be violating the Brown Act, which requires meeting announcements to be posted and available to the public.


That is deeply concerning to John Clark, who serves on the board of directors for Palomar Health.

“I honestly can't tell you why the administration went ahead and did this. It certainly sends the wrong message to the public," he said. "Palomar, like many hospitals today, they have challenges, but restricting public access to the website — it's a move in the wrong direction, and it makes it appear that we're hiding information from our citizens.”

He said the board was not informed of this change, and he will try to put the item on the agenda at the board’s next meeting.

For Loy, the most troubling part is the copyright clause, which forbids users from copying, reproducing, republishing, posting, retransmitting or distributing information found on the site without permission.

“For a public agency to tell people that they cannot use or copy or reproduce agency records public records that presents very serious First Amendment problems," he said. "It is tantamount to a prior restraint on the right (to) freedom of speech.”

Prior restraint is government action that prohibits speech or other expression before it happens. The Supreme Court has struck down laws with such restrictions.

In a statement, Palomar Health said it was committed to ensuring the public's access to information and is in the process of updating its "outdated" terms of use to "reflect current legal requirements." The health care district said it hoped to have those ready by year-end.