The attorney for media outlets told a judge Wednesday that letting the Department of Health Services withhold information about COVID-19 cases elevates the financial interests of long-term care facilities above the public’s right to know — and protect itself.
David Bodney asked Maricopa County Superior Court Judge Christopher Coury to rule that the state agency is picking and choosing what information it wants to release and to whom. He said that’s not permitted by the state Public Records Law.
Attorney Craig Morgan, representing the department and Cara Christ, its director, said the records being sought — the number of cases at COVID-19 at each of the facilities — are not public. He said there are specific state statutes prohibiting the release of any information gathered by the health department as a result of “enhanced surveillance” orders like the one Christ issued to deal with the pandemic.
Beyond that, Morgan argued that there are privacy issues that in a “balancing test” could outweigh the public’s need for the information.
But Bodney pointed out to Coury that Gov. Doug Ducey, in an order issued just this past Monday, directed nursing homes to provide that specific information not only to the relatives of people who live there but also to anyone who says they are interested in placing a relative there. He said it should not be necessary for Arizonans to make an inquiry — and possibly even be charged a fee — to each facility to find out where residents are becoming ill.
“The Arizona Public Records Law is not good for some, those willing to submit an application fee with a view toward maybe residing in one of these facilities, but not for others,” Bodney said.
Anyway, he told the judge, what his clients want is pure numbers of residents of each facility who have contracted the virus and the numbers transferred to hospitals, not the names of any individual resident. The only names that would become public would be the names of the facilities.
“Now is not the time to play games with the law or put the financial interests of the nursing home industry above the health and safety of the public,” Bodney said.
But Morgan said that’s not the case.
“This isn’t a situation where my client’s trying to withhold information,” he said, citing various statutes. “I mean, candidly, we have no choice.”
Coury agreed to put the issue on an expedited schedule, requiring Morgan to file his formal response to the lawsuit by May 15 and giving Bodney until May 21 to reply. A hearing could take place before the end of the month.
At the heart of the fight is what information the public is entitled to have about the spread of the coronavirus.
The health department does provide some detailed information about number of cases, even broken down by zip code. There also are demographic charts covering things like age, gender and race of those who contract the virus and those who die.
Bodney, representing the Arizona Republic and four Phoenix TV stations, contends the public is entitled to more, specifically the infections at state-regulated long-term care, assisted living facilities and nursing homes. And he pointed out to Coury that Christ already is requiring these facilities to produce those records for her.
Christ’s position, when asked about the refusal to release the information, has said that it could be used to figure out who are the people at each facility who are becoming ill. And that information is strictly protected by state law.
Bodney urged Coury to dismiss that contention.
He said there are more than 300 assisted living facilities in the state with an average of 85 residents. And 109 of those, Bodney said, have more than 100 people living there.
“There is a strong presumption under the Arizona Public Records Law that this information is subject to public inspection,” he said. And he said the governor’s new order on Monday allowing some people to get that information “points up the inconsistency of the application of this law.”
Morgan told Coury it’s not that simple.
“We do believe that there are rights of privacy and best interests of the state involved that warrants the withholding of the specific information being requested,” he said.