OAKLAND — Alameda County must release records to this news organization revealing how many people at nursing homes and other long-term congregate care facilities were infected with COVID-19 and how many died, as well as the names of facilities with confirmed cases, a judge has decided.
In his ruling, Alameda County Superior Court Judge Evelio Grillo also stated that a federal health privacy law known as HIPAA cannot be used to withhold information that isn’t exempt from disclosure under the California Public Records Act.
Grillo is the first California judge to rule that the state’s public records law in essence supersedes HIPAA (Health Insurance Portability and Accountability Act), which was enacted to protect patients’ medical records from being disclosed by health care providers without their consent. Judges in a handful of other states have reached similar conclusions.
Since the pandemic began, public agencies across California have declined to release detailed information about outbreaks, often citing the federal privacy law. While the state of Oregon regularly posts online detailed information about infections in workplaces, for example, only a handful of California counties do the same.
The Bay Area News Group, which publishes The Mercury News and the East Bay Times, filed public records requests in April 2020 asking Alameda County’s public health department for basic data about confirmed COVID-19 cases and deaths among residents and staff at long-term care facilities, nursing homes, residential care facilities and other congregate living facilities in the county. The request did not seek the names of those who contracted the virus or those who died from it.
The county nevertheless rejected the request. Instead of arguing why disclosure of the requested data should be exempt under the state’s public records act, the county maintained that as a “covered entity” under HIPAA it cannot release any information that could result in identifying the facilities’ patients and staff. It insisted even numerical data could be used to identify COVID victims, without explaining how.
The Bay Area News Group responded by filing a lawsuit in June, and last week Judge Grillo sided with this news organization by ordering the county to provide it the requested COVID-19 data from last spring going forward.
“We are now at the height of this pandemic, which has wreaked havoc on long-term care facilities. Rather than provide basic, non-identifying information about the infection rates at these facilities that would serve to inform the public and families about the unfolding disaster, in April of last year the County elected to shirk its disclosure obligations under the Public Records Act and state constitution,” San Francisco attorney Duffy Carolan, who represented the Bay Area News Group in the case, said in a statement.
“Hopefully, the decision will serve to clarify this issue for other agencies that all too often invoke HIPAA to deny access to public records, though it is only binding on Alameda,” she added.
“One of the biggest obstacles for journalists in reporting on the coronavirus, and for the public in understanding it, has been lack of information. Public officials routinely decline to give us detailed answers to questions about outbreaks, citing privacy concerns,” said Bert Robinson, Senior Editor for the Bay Area News Group. “We believe this ruling will help push the information pendulum away from secrecy and toward disclosure. Californians can only make good decisions about this public health crisis if they fully understand the risks.”
The Alameda County Counsel’s office did not respond to multiple requests for comment.
Grillo said the county failed to show how disclosure of the requested data constitutes a “reasonable basis to believe that the information can be used to identify the individual.”
He also picked apart the county’s argument that its public health department is a covered entity under HIPAA similar to a health plan, a health care clearing house or a health care provider and thus can withhold patients’ protected medical information.
Even if it were a covered entity, the county still would be bound to requirements of the California Public Records Act and have to prove disclosure of the information is exempt under the state law.
Since the lawsuit was filed, the state health department has begun to release its own data about outbreaks at congregate care facilities and the number of people who have caught the virus and died there.
When the lawsuit was filed in June, three facilities in Alameda County — Gateway Rehabilitation and Care Center in Hayward, East Bay Post Acute in Castro Valley and Excel Care Center in Oakland — together had accounted for almost 200 COVID-19 cases and 35 deaths.
As of Thursday, at least 293 of the 3,230 infected people living or working in skilled nursing and assisted living facilities in Alameda County have died, according to data compiled by the state health department. Across California, at least 10,565 of the 135,004 infected people living or working in such facilities have died.
Alameda County initially provided limited infection and death data for the Gateway and East Bay Post Acute only after those facilities already had disclosed their own numbers.
But that practice “abruptly stopped” after April 20, and the county rejected a request for similar data for all nursing homes and long-term health care facilities in the county, citing HIPAA concerns, according to the lawsuit.