PHOENIX — Letting the Arizona 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 — the attorney for state news outlets told a judge Wednesday.
David Bodney asked Maricopa County Superior Court Judge Christopher Coury to rule that the state health agency is picking and choosing what information it wants to release and to whom. And that’s not permitted by the state Public Records Law, Bodney said.
The records being sought — the number of cases at COVID-19 at each of the facilities — are not public, said Craig Morgan, the attorney representing the department, and Cara Christ, its director. 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, Morgan said.
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 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 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 lawsuit seeks the infections at state-regulated long-term care, assisted living facilities and nursing homes. And Bodney pointed out to the judge 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 the judge to dismiss that contention.
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 the judge 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.
Photos for April 23: Tucson gets by during Coronavirus Pandemic
Tucson, coronavirus
Updated
Erika Munoz, owner of Seis Kitchen, hands over a bag of meals to Michael Gallagher Carondelet, a registered nurse at St. Joseph's Hospital, to distribute to other nurses and hospital workers, on April 23, 2020. The donation was made in conjunction with A+C (Athletes/Artists+Causes) Foundation's “Project Frontline.” In two deliveries, 400 meals (200 poc chuck chicken and 200 puerco verde burritos) will be given to medical personnel at Carondelet St. Joseph’s Hospital. The particular donation was made possible by the Houston Astros' Pitching Coach Brent Strom, who lives in Tucson.
Tucson, coronavirus
Updated
Hospital workers wheel in carts full of catered meals donated by Seis Kitchen to Carondelet St. Joseph's Hospital, on April 23, 2020. The donation was made in conjunction with A+C (Athletes/Artists+Causes) Foundation's “Project Frontline.” In two deliveries, 400 meals (200 poc chuck chicken and 200 puerco verde burritos) will be given to medical personnel at Carondelet St. Joseph’s Hospital. The particular donation was made possible by the Houston Astros' Pitching Coach Brent Strom, who lives in Tucson.
Tucson, coronavirus
Updated
Kristi Hall, a sixth grade teacher at Desert Sky Middle School, participates in planning a lesson with a fellow teacher on Zoom, at her home on April 17, 2020. Schools in the Vail School District are supposed to open in July due to their year-round school calendar. Plans are being made for the possibility of students returning to the physical classroom.
Tucson, coronavirus
Updated
Bry Kelley, a warehouse assistant, places a pallet filled with food down next to other items donated to the Community Food Bank of Southern Arizona on on April 21, 2020. Forty-one thousand pounds of flour, pasta and canned goods were donated by The Church of Jesus Christ of Latter-day Saints. The donation is part of an ongoing global effort by the church to address immediate needs of people and orgainzations due to the coronavirus disease (COVID-19) pandemic.
Tucson, coronavirus
Updated
A pallet of food is placed down next to other items donated to the Community Food Bank of Southern Arizona on on April 21, 2020. Forty-one thousand pounds of flour, pasta and canned goods were donated by The Church of Jesus Christ of Latter-day Saints. The donation is part of an ongoing global effort by the church to address immediate needs of people and orgainzations due to the coronavirus disease (COVID-19) pandemic.
Tucson, coronavirus
Updated
Christian Bergman, 4th year University of Arizona medical student, takes the temperature of a patient outside the Z Mansion, 288 N. Church Ave., in Tucson, Ariz., on April 19, 2020. Medical students from the University of Arizona and other universities volunteer to help the homeless population with the growing concerns of Coronavirus Disease (COVID-19) within the homeless population. “This is a vulnerable population in our community; they can’t defend themselves in a society already running short on supplies and resources,” said Bergman. Medical students and medical personal help by giving out food, drinks with electrolytes and masks to the homeless. Those who are sick, medically impaired or have been exposed to those with COVID-19 are isolated outdoors in tents on the property. As of Sunday April 19, there were 13 individuals whom are isolated in tents.
Tucson, coronavirus
Updated
Lekha Chesnick, 1st year medical student at Burrell College of Osteopathic Medicine, talks with a homeless man (whom choose to not give his name) outside of the Z Mansion, 288 N. Church Ave., in Tucson, Ariz., on April 19, 2020. Medical students from the University of Arizona and other universities volunteer to help the homeless population with the growing concerns of Coronavirus Disease (COVID-19) within the homeless population. Medical students and medical personal help by giving out food, drinks with electrolytes and masks to the homeless. Those who are sick, medically impaired or have been exposed to those with COVID-19 are isolated outdoors in tents on the property. As of Sunday April 19, there were 13 individuals whom are isolated in tents.
Tucson, coronavirus
Updated
Christian Bergman, 4th year University of Arizona medical student, checks on a patient outside the Z Mansion, 288 N. Church Ave., in Tucson, Ariz., on April 19, 2020. Medical students from the University of Arizona and other universities volunteer to help the homeless population with the growing concerns of Coronavirus Disease (COVID-19) within the homeless population. “This is a vulnerable population in our community; they can’t defend themselves in a society already running short on supplies and resources,” said Bergman. Medical students and medical personal help by giving out food, drinks with electrolytes and masks to the homeless. Those who are sick, medically impaired or have been exposed to those with COVID-19 are isolated outdoors in tents on the property. As of Sunday April 19, there were 13 individuals whom are isolated in tents.
Tucson, coronavirus
Updated
Elliott Dumont, owner of Roadrunner Bicycles, 6177 E. Broadway Blvd., works on a customer's bike on April 22, 2020. The coronavirus disease (COVID-19) has not slowed down bike shops. With many people at home, they are bringing bicycles for repairs and buying new ones for exercise. Dumont says he's booked out till the first week of May for tuneups on bikes.
Tucson, coronavirus
Updated
Elliot DuMont, owner of Roadrunner Bicycles, 6177 E. Broadway Blvd., far left, helps Ethan Sasz, far right, and his son, Evan, 10, with a mountain bike purchase on April 22, 2020. The coronavirus disease (COVID-19) has not slowed down bike shops. With many people at home, they are bringing bicycles for repairs and buying new ones for exercise. Dumont says he's booked out till the first week of May for tuneups on bikes.
Tucson, coronavirus
Updated
Marcella Montoya waits in her vehicle as general manger David Kessler brings out her order, as Bear Canyon Pizza serving their customers despite COVID-19 restrictions, April 22, 2020, Tucson, Ariz.
Tucson, coronavirus
Updated
Kitchen manger Koa Hoffmann tosses dough while working up a crust for a call-in order as he and few others keep cooking at Bear Canyon Pizza despite COVID-19 restrictions, April 22, 2020, Tucson, Ariz.
Tucson, coronavirus
Updated
Alvaro Enciso, a local artist, works in one of his studios at his home on April 9, 2020. Every Tuesday Enciso travels into the Sonoran desert to post crosses where migrants have died after crossing illegally over the U.S./Mexico border as part of a project he's titled Donde Mueren Los Suenos / Where Dreams Die. With the outbreak of the coronavirus disease his six year project is on hold and instead he works on other artwork at home.
Tucson, coronavirus
Updated
Dolly Spalding works on a pen and ink drawing in her apartment at the Redondo Tower Apartments on April 7, 2020. During her quarantine, Spalding has been creating drawings of all the Greek goddesses. She is collaborating with Emlyn Boyle, an artist from Ireland, and plans to publish a book with Boyle's writings.
