Several weeks ago I got a call from a reporter asking me to comment on a Twitter thread posted by the Utah County Health Department about two businesses who had COVID-19 outbreaks among their employees. I was surprised to learn the County had opted not to name the businesses, given the importance of information for public decision-making in the current pandemic.
I am quoted in the May 8 story as follows:
“The county is actually not restricted by UCA 26-6-27 from releasing the names of the businesses,” Carter said on Friday in an emailed statement. “What the statute focuses on is the identity of individuals. So the names of the businesses could potentially be released without identifying any particular individuals.”
In the Twitter thread, the Utah County Health Department said neither of the businesses “conduct direct interactions with members of the public and as a result, the risk to the public from the businesses is generally low.”
“I don’t buy that businesses, even those that don’t directly interact with the public … have any kind of reasonable privacy expectation in this case,” said Carter, who spoke to the Daily Herald outside of his capacity as a BYU employee. “Especially not when the county already has singled out two businesses among all the businesses in Utah County as the ones that ignored health recommendations and had resulting mass infections.”
Later, I learned that KSL-TV in Salt Lake City had filed a complaint in Utah’s 4th District Court over the denial of KSL-TV’s open-records request under Utah’s Government Records Access and Management Act (GRAMA). I was asked to represent six news organizations in filing a friend-of-the-court Memorandum to support KSL-TV’s effort to get the business names. My clients were the Utah Headliners Chapter of the Society of Professional Journalists, the Utah Press Association, The Salt Lake Tribune, the Deseret News, the Herald Journal in Logan and FOX 13 KSTU-TV.
A copy of the friend-of-the-court Memorandum, filed in court on June 23, is below. (I won’t go into great detail on the technical procedural issues, but we had to file a Motion to ask the 4th District Court to allow us to file our Memorandum. The Court resolved the issue and ordered the business names to be released before deciding our Motion. But we already had filed the Memorandum in case, and I have to believe it helped.)
Memorandum-in-Support-of-Motion-for-Judgement-on-the-Pleadings
Our arguments in the Memorandum focused on the balancing test under GRAMA in which the public interest in disclosure is weighed against the government’s interest in secrecy. In this case, we argued, the public interest in disclosure was compelling because we are in a pandemic and people need information to make decisions about their own health. We also argued that national standards of information practice favor disclosure during a pandemic, and we pointed to guidelines from the U.S. Department of Justice and the U.S. Centers for Disease Control.
At a hearing before the 4th District Court judge on June 29, the outside counsel for Utah County argued that KSL-TV and the media amici had not shown a sufficient public interest in disclosure, partly because (she argued) it was too speculative to say that release of the businesses would help the public make decisions about their own health. Well, guess what? The judge ordered disclosure of the public records, KSL-TV got the records on July 1 and published a story containing the following passage:
In an indication that the outbreak was serious enough to warn county employees about the hot spots, on May 5, the day after Utah County officials published their letter on Facebook about the outbreaks, Utah County Health employee Tyler Plewe sent an email addressed to “staff” in which he named the two businesses, writing, “This is sensitive information so please keep it within the office. I wanted to let you know of these locations so that you feel safe if you are heading out into the public.”
So here we have a situation where the County, through its outside lawyers, disputed that the public needed the information for its own health. And, yet, County employees had for months been telling each other what businesses to avoid precisely to protect their own health–and yet not telling the public.
The case illustrates the need for public disclosure of government records. It also shows the importance of news media organizations taking up this effort and representing the public interest. Had KSL-TV not stepped forward and been willing to pay attorneys, the information might never have been disclosed and the County would have been hiding the business names even though its own employees had been privileged to know that information and use it for their own welfare.
