Today Phoenix Newspapers, Scripps, KPNX-TV, and Meredith filed a Complaint for Statutory Special Action, and an Application for an Order to Show Cause in Maricopa County Superior Court, for the right to inspect and copy public records held by AZ DHS. The Defendants are AZ DHS and its Director Dr. Cara Christ.
These news agencies seek access to the records that Ducey’s Executive Order No. 2020-22 [PDF Link] requires nursing care and residential care institutions to report to AZ DHS weekly. Specifically, they seek the reports of the weekly number of COVID-19 positive residents, the number of transfers to and from any acute care hospital, the number and type of PPE in inventory, and the estimated use of PPE per week. None of these records need personally identify any resident.
Despite the lack of personally identifying information in these records, and the ability of DHS to redact any such information prior to release, Dr. Christ has repeated denied media requests for the release of these records, vaguely citing either HIPAA, or state medical privacy law.
The case is CV2020-005385 in Maricopa County Superior Court. So far, the complaint and application have not been published by the Court, but BlogForArizona obtained copies directly from the plaintiffs, so you may read them, if interested.
Application [PDF Link]
Complaint [PDF Link]
In brief, the media’s case comes down to the simple fact that these are clearly public records of great public interest containing no plausibly personally identifying information, and the AZ DHS has failed to provide any probable specific material harm that might result from their release, as required under Arizona law.
BlogForArizona also contacted the AZ DHS legal department’s privacy officer, seeking comment on their claimed legal basis for withholding the requested information from the public and media, and was told that the Department would not release that information as it was considered attorney work product.
As work product privilege mainly applies to materials prepared by counsel in preparation for litigation, one might assume that AZ DHS has been anticipating this lawsuit for some time, if not outright courting it, and has outlined some legal strategy to defend their lack of disclosure.
When AZ DHS answers the media’s Special Action, I guess we’ll find out what that strategy might be. Though their reason for refusing to release the information still remains rather inexplicable, I have previously speculated that it comes down merely to protecting the interests of the powerful long term care industry in Arizona.
Should it turn out that the Ducey Administration is withholding vital public health information merely as a favor to a powerful industry with a strong lobbying arm in Arizona, I suspect more than a few feathers will be ruffled. Mine certainly included.