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‘A Very Convenient Excuse’: Lawyers Say Arizona Officials Are Illegally Withholding Coronavirus Data From Public

Arizona Gov. Doug Ducey

As multiple states plan to begin easing emergency health restrictions in the interest of allowing more businesses to reopen, legal experts have called out leaders in Arizona for withholding data that they are required by law to produce.

In Arizona, Governor Doug Ducey (R), Department of Health Services Director Dr. Cara Christ, and Maricopa County Health Department Director Dr. Rebecca Sunenshine have all refused to provide the names and locations of long-term care facilities where residents have tested positive for the COVID-19 coronavirus, ABC15 reported Saturday. The state’s Department of Corrections has also been concealing the total number and locations for correctional officers who have tested positive.

Former U.S. Attorney for the Northern District of Florida and current president of the Florida First Amendment Foundation Pamela Marsh told ABC15 that the governments have no legal justification for keeping the data from the public. Marsh said that the government’s citing of the Health Insurance Portability and Accountability Act (HIPAA) was not a legitimate excuse.

“It’s incredibly disappointing. It’s using HIPAA as a big giant fig leaf without any justification at all,” Marsh said. “In times when our governors have declared states of emergencies because of a health pandemic, when else is the information necessary for public health? This has to be the moment.”

The local news outlet also featured the opinions of First Amendment lawyers David Bodney and Daniel Barr, as well as Harvard Law professor I. Glenn Cohen. The legal experts were in agreement that the state and local officials were wrongly using HIPPA’s prohibition on divulging patients personal medical history to refuse disclosing data that is being widely reported in other states.

“Sometimes it’s known as the game of empty bottles,” Bodney said. “You take an empty bottle, slap a label on it, and you call it in this case ‘HIPAA.’ You pour all this information into it and say it’s HIPAA. It’s personal information, I can’t release it, irrespective of what the information really is. It’s kind of a convenient way, a very convenient excuse, for withholding information when the law doesn’t support it.”

The data is particularly relevant in Arizona, where as many as 16 residents in one assisted living facility died due to the novel coronavirus.

“Truthfully, I think it erodes the public trust,” Cohen said of the governor’s misuse of HIPPA to avoid public disclosure. “Anybody who has a loved one in these nursing facilities has a lot of questions and probably deserves some answers.”

“It’s ridiculous,” Barr said. “That information is not only available, it’s obviously necessary. The coronavirus doesn’t discriminate whether you are in custody or a detention officer. If your officers are infected, they are leaving the prisons and endangering their families members and other people. It’s a danger to society in general.”

The Governor’s office has taken a similar stance with regards to withholding statistics on correctional officer infections.

“Our agencies are prohibited from disclosing information that would reveal an employee’s identity or confidential medical information,” a spokesperson wrote in an email to ABC15. “We appreciate the concern and request for disclosure. ADCRR has assured us they will consider releasing that information if (or in a worst-case scenario, when) cases reach a level that would allow for aggregate data to be released in a manner that is statistically assured to prevent from identifying a specific employee.”

[image via YouTube]

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Jerry Lambe is a journalist at Law&Crime. He is a graduate of Georgetown University and New York Law School and previously worked in financial securities compliance and Civil Rights employment law.