Judge Practically Begs AZ State Leg to Rewrite Law in Wake of COVID-19 Disclosure Suit

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A huge share of fatalities are taking place in nursing homes and our poor monitoring and prevention in those facilities will be our biggest shame in this crisis.

A group of Arizona media companies filed suit to get access to more information about COVID-19 infections in Arizona’s nursing homes. They lost. And they lost for a very bad reason. The law sucks. And the judge pretty much says as much.

I’ve seldom seen a Judge so forcefully use the particular vernacular of jurisprudential analysis and decisionmaking to make the case for revisiting and revising a statute, even as he hands the win to the party that benefited of his interpretation.

In his ruling on Phoenix Newspapers Inc, et al v Arizona Department of Health Services, et al,  the judge, Hon. Christopher Coury, openly laments that he must follow such a poorly drafted and conceived law as Arizona’s Enhanced Surveillance Advisory and Public Health Emergencies Act of 2002 (referred to as “the Act” in the ruling). A.R.S. § 36-661, et seq.

His decision was seen as a “win” for the Ducey Administration. It allowed Ducey and Dr. Christ to continue to hide the scope of the human disaster taking place right now within Arizona’s long term care facilities. Instead of knowing clearly what facilities are at risk and where there have been infections and how many, we now really only find how bad an outbreak has become when it leaks to the press, generally as the facility is evacuated due to an uncontrolled outbreak.

Dr. Christ even now seems to be keeping the results of her announced plan to do PCR testing of all residents of Medicare/Medicaid nursing home facilities to herself. It has been at least three weeks since the program was proclaimed, and thus far there has been no announcement about the number of positive cases discovered in this testing program. One has to wonder if positive cases in long term care facilities are just being quietly mixed into the totals, partially explaining the recent spike in diagnoses.

The federal government has mandated reporting of infections for Medicare/Medicaid eligible facilities, but there are grave concerns about the accuracy and completeness of that data as well. The result is unnecessary and unhealthy secrecy about the status of COVID-19 in the very facilities where a vastly disproportional share of American fatalities are occurring.

Upon reading his ruling, it becomes clear that that the Judge is not-so-gently suggesting that the ruling he was forced to issue by the plain language of the current law constitutes poor public policy and that the Arizona State Legislature needs to go back to the drawing board to ensure public and media access to critical information during a biological emergency like the COVID-19 epidemic crisis.

At the bottom of the page, you will find Judge Coury’s Minute Entry pronouncing his under advisement ruling with my highlighted notes, which will largely parallel this post.

Most of the ruling will be of little interest outside of the parties or attorneys interested in public records demands. The first policy critique the judge touches upon is the State Legislature’s decision to not adopt the Model State Emergency Health Powers Act and instead to adopt it only in part with some novel portions, making Arizona’s version Arizona-specific law, including a critical vague and undefined term.

This is as close as most judges ever get to chewing out a legislative body for being sloppy in their work. Clearly, the judge would prefer to have the legislative history and experience of judges in other jurisdictions in interpreting such a complex statute. By failing to adopt the model legislation, the Arizona legislature injected a great deal of ambiguity into the law that did not need to exist.

The problematic and undefined term which ends up compelling the Court’s ruling is ‘medical information’ at ARS § 36-784(C). Such ‘medical information’ is held to be “…confidential and is not available to the public.”

The Court ends up defining ‘medical information,’ per in pari materia, as “encompassing information relating to (a) the identification, diagnosis, treatment, tracking of persons exposed to an illness, (b) the source and spread of the illness, and (c) information on health conditions, unusual disease clusters or suspicious disease events.” Which, in a health emergency, is pretty much everything the public might want to know about the disease in question. Tough luck, public. Bite it, media. The law has spoken.

I think the Judge recognizes this broad area of confidentiality staked out by this uniquely Arizonan law to be problematic in a democratic society. As much as the government might like and want the ability to keep all the bad information to itself in an emergency, self-governance requires that the public have access to much of what the government knows unless there is a very compelling interest against it.

My own critique, which the Judge did not need to address, is that it seems one of the state legislature’s main motives for drafting in this manner was commercial in nature: the wish to protect trade secrets and “other information’ likely to cause harm to an entity’s competitive position contained in § 36-783:

“E. The department and local public health authority shall maintain as confidential:

1. Any information or a particular part of information provided under this section that, if made public, would divulge the trade secrets of a person or business.

2. Other information likely to cause substantial harm to the person’s or business’ competitive position.”

To my mind, these provisions are an invitation to politicize and inject potential corrupt motives into what should be purely public-health-centered decisions. As problematic as I find them, the Court never reaches these commercial concerns in its decision, though these interests do play a role in the State’s responsive filing, showing where the Ducey Administration’s priorities lay in this health crisis (See page 11, Section D, if you are interested in the Administration’s use of this Arizona-specific justification for withholding information from the public).

The Judge gets pretty specific about his reservations regarding his own ruling in his Conclusions at the end of the Minute Entry. He recognizes that the Administration’s Executive Order to inform family and caregivers of an infection may not be enough to protect the public adequately.

He says the concern is: “Mitigated, if not eliminated.”

You can read that two ways, I suppose. As “mitigated, and possibly eliminated.” Or as Mitigated, though not eliminated.”

I think the Judge means the latter. I think he has a lot of concerns about the effect of his ruling and the future of the legislation he is interpreting.

His final paragraph is aimed squarely at the public, and rightly so. This case implicates a major problem with self-government and the allowance of official secrets, even in an emergency. Perhaps, especially so. He clearly intends to speak to the people of Arizona directly, so let’s actually listen:

It is not the position of the Judicial Branch to enact legislation or to create policy – that responsibility rests squarely with the other branches of government. The Legislature could consider the policy implications on all sides of this issue, and if desired, enact clarifying legislation and expressly protect records, or direct that records be released. If any frustration exists, it is that this has not happened. The Act – the legislation authorizing the actions at issue – lacks clarity. Rather than using model legislation with clearly defined terms, and rather than actually defining the terms used, the Legislature in 2002 created Arizona-specific legislation, apparently from whole cloth. Even though the subject matter of the Act relates to emergencies – instances when clear statutes are needed to permit critical, decisive and time-sensitive actions – the Act left critical terms undefined. Eighteen regular legislative sessions have passed, and the Act has not been amended or clarified. Perhaps this is the fortuitous result of not having to deal with a widespread health emergency during the intervening years. Nonetheless, if this decision illustrates nothing else, it highlights the need for the Legislature to revisit the Act and make it more workable for all concerned. In its present form, the ambiguous Act does a disservice to the media, to government leaders, to the courts, and to all Arizonans.

So, get to work state legislators. Judge Coury has given you notice that you have some repairs to do. Don’t make him give you a ticket for legislating recklessly. (Yeah, I know judges don’t do that…)

Coury RulingPNIinc (Text)

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