The Georgia Department of Public Health denied a request for COVID-19 statistics under the Georgia Open Records Act, claiming exemption under a GDPH Rule declaring that information on "outbreaks" is "confidential" beyond what GDPH arbitrarily chooses to make public.
The impact of COVID-19 has brought about changes in “status quo” on a worldwide, national, state, regional and local level. “The new norm” is a common phrase used to address many of the changes in not only healthcare related issues, but legal, societal and even Constitutional terms.
Many of the policies being put in place by public officials, as well as many of the practices adopted by citizens as a community response to the threat posed by COVID-19, are informed by statistics about the virus.
Information on the prevalence of the disease and its rate of transmission is vital for local and regional officials to implement emergency management planning and directing the community’s response to the virus. Complete and accurate information is invaluable for citizens and officials alike in assessing the success of any mitigation efforts put in place.
Raw data from COVID-19 testing is a key component in forming complete picture of the impact of COVID-19. However, Complete and consistent data regarding testing, specifically on the county level, has not been released by state health officials as part of their standard, ongoing daily reporting process.
Connect Local requested information on testing data for Stephens County from the Georgia Department of Public Health District 2 office, and was advised that the district office did not have that information, it would need to be requested from the state office. ConnectLocal called the GDPH main office in Atlanta, and was told that the information being requested would not be provided.
On Thursday, April 16, ConnectLocal submitted a request in writing to GDPH under the Georgia Open Records Act, (GORA) requesting information regarding statistics on COVID-19 tests conducted in Stephens County be provided.
In the GORA request, ConnectLocal specified that the information sought did not include information identifiable to an individual, but instead was only requesting total numbers of various statistics from Stephens County - information that would be provided on each test result submitted to the GDPH by a testing facility and/or lab, and information that is already being collected as raw data on a statewide level for distribution to the public.
“I do not request information that would identify an individual, and thus violate HIPAA laws; I am only seeking statistical data/data fields that will provide citizens with a complete picture of the extent of testing done within the county, the rate of virus infection and spread within the community, and the demographic makeup of citizens tested and the results of those tests,” ConnectLocal stated in the GORA request.
Data sought from the GDPH included:
The Total number of Covid-19 tests conducted, from all facilities located within the county borders, including, but not limited to, the Stephens County Hospital, the Public Health Department, The Toccoa Clinic, and any/all Primary care physicians or other entity conducting testing within the county limits.
For each test, I am seeking the following information:
Test results (ie: positive, negative)
Age and gender of the person tested
Reason for testing (known contact, symptomatic, etc)
For those that tested positive, please advise whether they were hospitalized or not.
According to the Georgia Open Records Act, “The General Assembly finds and declares that the strong public policy of this state is in favor of open government; that open government is essential to a free, open, and democratic society; and that public access to public records should be encouraged to foster confidence in government and so that the public can evaluate the expenditure of public funds and the efficient and proper functioning of its institutions. The General Assembly further finds and declares that there is a strong presumption that public records should be made available for public inspection without delay. This article shall be broadly construed to allow the inspection of governmental records.”
According to the directives of the GORA, data included in forms that contain confidential information is still subject to GORA rules, and must be provided it that information is, under normal procedures, collected and utilized separately from the confidential information. As testing data is used at a statewide level, it follows that the information from local testing results is routinely extracted from forms that would contain confidential personal information, and thus would exist and be subject to GORA laws.
“(f) As provided in this subsection, an agency's use of electronic record-keeping systems must not erode the public's right of access to records under this article. Agencies shall produce electronic copies of or, if the requester prefers, printouts of electronic records or data from data base fields that the agency maintains using the computer programs that the agency has in its possession. An agency shall not refuse to produce such electronic records, data, or data fields on the grounds that exporting data or redaction of exempted information will require inputting range, search, filter, report parameters, or similar commands or instructions into an agency's computer system so long as such commands or instructions can be executed using existing computer programs that the agency uses in the ordinary course of business to access, support, or otherwise manage the records or data,” the Act states.
This morning, ConnectLocal received a response to the GORA request submitted Thursday, denying the request for data showing how many COVID-19 tests have been conducted in Stephen County to result in the number of confirmed cases listed by GDPH on their daily updates, as well as the additional data requested regarding hospitalizations, demographic information and the underlying reason for the test.
“Thank you for your request for records involving the COVID-19 pandemic.A daily interim report containing available public information is posted daily on our website at https://dph.georgia.gov/covid-19-daily-status-report, the response from GDPH stated, referring to the department's twice-daily update that lists statewide statistics, and county statistics limited to the number of confirmed cases and the number of deaths.
“Except for the Department’s Final or Interim Reports, information and records collected as part of an outbreak investigation are confidential under O.C.G.A. § 31-5-5 and DPH Rule 511-2-1-.03. Therefore, we are not able to provide you with the specific records you have requested at this time. However, we continue to explore options for expanding the information provided in our daily COVID-19 reports and will make a note of your request,” the letter from GDPH concluded.
Under GORA, very specified exemptions are identified that allow agencies to deny requests, and agencies are required to identify the exemption under which they are denying the request.
“In any instance in which an agency is required to or has decided to withhold all or part of a requested record, the agency shall notify the requester of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph”
O.C.G.A. § 31-5-5, identified by GDPH as one of two exemptions being claimed, deals with “secret processes, formulas and other methods” and is normally used to protect proprietary information and a private corporation or individual’s trade secrets
“The department and county boards of health are authorized by regulation to classify as confidential and privileged documents, reports and other information and data obtained by them from persons, firms, corporations, municipalities, counties, and other public authorities and political subdivisions, where such matters relate to secret processes, formulas, and methods or where such matters were obtained or furnished on a confidential basis,” states the OCGA text. “All matters so classified shall not be subject to public inspection or discovery and shall not be subject to production or disclosure in any court of law or elsewhere until and unless the judge of the court of competent jurisdiction, after in camera inspection, determines that the public interest requires such production and disclosure or that such production and disclosure may be necessary in the interest of justice.”
DPH Rule 511-2-1-.03, identified as an additional exemption under which ConnectLocal’s GORA request was denied, states, “The following records shall be deemed confidential and shall not be subject to public inspection: all reports submitted to a county health department or to the Department (GDPH) pursuant to this Chapter; all information requested or collected as part of an outbreak or cluster investigation, subject to the exceptions described in subparagraph (b) of this Rule; all identifiable Georgia Discharge Data System data; and all information identified as "non-public" and received from the U. S. Food and Drug Administration.”
Subparagraph (b), as identified in the rule, states “When an outbreak or cluster investigation is concluded, the Department's Final Report may be made public, provided that it contains no personally identifiable data. When an outbreak or cluster investigation is expected to last more than ninety days, the Department may prepare one or more Interim Reports. Such Interim Reports may be made public, provided that they contain no personally identifiable data.”
ConnectLocal has submitted a request to clarify what classification of “secret processes, formulas and other methods” are being exempted in a request for county-level statistics that are already released on a statewide level. No response has been received as of noon, April 21.
ConnectLocal has sought legal advice as to whether “DPH Rules” qualify as a “specific legal authority exempting the requested record” under GORA requirements.
GORA text does not specify an appeals process for denied requests. Acting on industry recommendations, ConnectLocal has submitted a request for review to the Attorney General’s Office. According to Muckrock, a non-profit collaborative involved in government transparency, “If the Attorney General does not decide to further investigate your complaint, one may file a civil or criminal action in superior court and appeal the denial that way.”