VOICE OF SAN DIEGO et al., Petitioners, v. THE SUPERIOR COURT OF SAN DIEGO COUNTY, Respondent; COUNTY OF SAN DIEGO, Real Party in Interest.
D078415
Court of Appeal, Fourth Appellate District, Division One, State of California
July 16, 2021
CERTIFIED FOR PUBLICATION; (San Diego County Super. Ct. No. 37-2020-00026651-CU-WM-CTL); ORIGINAL PROCEEDINGS in mandate. Joel R. Wohlfeil, Judge.
Petition denied.
Law Office of Felix Tinkov and Felix M. Tinkov, for Petitioners.
Katie Townsend, Bruce D. Brown and Shannon A. Jankowski for Reporters Committee for Freedom of the Press, as Amici Curiae on behalf of Petitioners.
No appearance for Respondent.
Office of County Counsel, Jeffrey P. Michalowski, County Counsel, for Real Party in Interest.
As we will explain, we conclude that the County properly withheld the specific location of COVID-19 outbreaks under the catchall exemption in
public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (
Accordingly, we deny the petition for an extraordinary writ.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The original version of the petition for writ of mandate and complaint at issue in this proceeding was filed by Voice of San Diego against the County on July 29, 2020. The petition alleged that on April 10, 2020, Voice of San Diego sent a request under the PRA to the County, which sought “[a]ny and all copies of epidemiological reports sent to the state of California showing the results of San Diego County‘s investigative contact tracing efforts since Jan. 1, 2020, to present.” The County denied the request on the same day, with the following explanation: “County staff is focused on providing essential services to County residents for the foreseeable future. Due to this ongoing emergency, staff that may have responsive records do not have the capacity to search for records responsive to your request. Under California
receiving records at this time is outweighed by public interest in having County personnel free to handle this ongoing emergency. We do not anticipate responding to your request until the emergency order has been lifted.” The County also provided Voice of San Diego with a link to the website where the County provided the public with updates regarding the COVID-19 pandemic. Voice of San Diego sought a writ of mandate, a preliminary and permanent injunction and declaratory relief, all of which were directed at obtaining an order requiring the County to produce the records requested on April 10, 2020.
On September 10, 2020, an amended petition for writ of mandate and complaint was filed, which added KPBS as a petitioner. The amended petition
“The County will only identify a specific location if there is an ongoing risk to public health. For example, in the past there has been instances of e-coli contamination and cases of Tuberculosis where public health was threatened and the health officer identified the specific location. In the instance of COVID-19 outbreaks, none have been determined to be an ongoing threat to the public health.
“Another consideration is we don‘t want businesses and others to be reluctant to come forward to report. If businesses are called out in a manner that they feel is punitive, other businesses are less likely to be upfront about concerns related to potential outbreaks in the future, thereby impacting both the
ability to trace and efforts to combat COVID and other infectious diseases.
“Moreover, while State licensing agencies have been able to provide this specific type of data, the County‘s Public Health Officer is not able to do so. Information publicly disclosed by the Public Health Officer regarding communicable disease investigations must be de-identified to prevent it from being linked to a particular individual. (Title 17, Section 2502[, subd.] (f)(3) of the California Code of Regulations.) Providing this sort of information has the potential to lead to either the identification of physical residential or work addresses of people who have contracted a disease, which would too closely link the disclosure to particular individuals. Under
Government Code section 6254[, subdivision] (k) , the Public Health Officer may not provide these addresses in response to a Public Records Act request.”
Although the County did not provide location information for the outbreaks, it did provide a list of the outbreaks by sector, separately showing the total number of outbreaks through July 17, 2020, in “Restaurants/Bars“; “Construction/Manufacturing/Retail Businesses/Gym“; “Healthcare Settings“; “Private Residences“; “Church Outreach or Social Club“; “Grocery Store“; “Food Processing Facilities“; “Government Facilities“; “Restaurants“; “Hotel, Resort or Campground“; “Community-Based Organization/Daycare Settings“; and “Hair Salons/Barbershops.”
The amended petition also alleged that KPBS had obtained from the City of El Cajon a County-prepared document, dated April 18, 2020, which
responsive to the requests of both Voice of San Diego and KPBS pursuant to the PRA.
On September 28, 2020, a second amended petition for writ of mandate and complaint was filed, which added San Diego Union Tribune as a petitioner. The second amended petition alleged that on September 3, 2020, San Diego Union Tribune submitted a request to the County under the PRA, which sought the County‘s “electronic list of community outbreaks,” including the fields that showed the “Name of location where outbreak occurred,” the “Address of location where outbreak occurred,” the “City where outbreak occurred” and the “ZIP code where outbreak occurred.” The County responded to San Diego Union Tribune by explaining that it would release the spreadsheet, but it would redact the name and address information for the location of the outbreaks. An exhibit attached to the second amended petition shows that the County provided the following explanation for the redactions:
“There is a significant government interest during a pandemic in the candid exchange of information between those linked to these outbreak locations and the Public Health Officer‘s disease investigators. Contact tracing only works when those that are being interviewed are completely honest and forthcoming with relevant information. The Department of Public Health‘s investigators assure those they interview that the information they provide will be kept confidential. Many people investigators speak with are fearful that providing the name of the location where they were potentially infected could have negative effects on that location whether it be a church, a restaurant or a place of business. Additionally, it has the potential to reveal the diagnosis of particular individuals if disclosed. Releasing the names of these locations and the addresses will have a chilling effect on the open communication necessary to ensure the Public Health Officer is able to effectively combat active outbreaks.
“The Public Health Officer must also take measures to protect the medical privacy of those with a communicable disease diagnosis. Specifically, care must be taken to avoid linking a diagnosis to a specific person, or persons—unless doing so is necessary during an active investigation. Naming specific locations, which in many cases is a workplace, will focus in on a potentially small pool of particular individuals. In the field of health privacy, publicly revealing that level of detail is too close of a link to the medical information of specific individuals.
“The Public Health Officer has released certain communicable disease outbreak locations on occasions where a determination has been made that doing so is necessary to prevent the spread of a disease or occurrence of additional cases. For outbreak locations subject to this request, it has been determined that the public release of specific locations is not necessary to prevent the spread of COVID-19, or the occurrence of additional cases. In most instances, the outbreak location information is reported and added to this list well after the outbreak has already taken place, so releasing the names now would do little to protect the public, especially when the business is cooperating with the Public Health Officer, exposed individuals have been notified, and measures have been taken to mitigate the risk of an additional outbreak. “The Public Health Officer has made a determination to release the additional information in this redacted report to benefit the public[‘s] understanding of disease patterns, and to communicate new knowledge about COVID-19 to the community. However, the redacted information consisting of names and addresses of locations will too closely link this information to specific individuals. In addition, for the reasons stated above, the public interest in not disclosing the specific outbreak locations clearly outweighs the public‘s interest in releasing this information.”
The second amended petition sought an order requiring the County to release records responsive to the requests of all three petitioners pursuant to the PRA.
On September 28, 2020, petitioners filed an opening brief in support of the relief sought in their second amended petition for writ of mandate and complaint.
Petitioners’ opening brief set forth two main arguments. The first argument focused on the County‘s denial of Voice of San Diego‘s April 2020 request for “[a]ny and all copies of epidemiological reports sent to the state of California showing the results of San Diego County‘s investigative contact tracing efforts since Jan. 1, 2020, to present.” Petitioners argued that the County improperly denied this request, made during the early stages of the pandemic, based on its lack of sufficient staffing capacity to search for records during an emergency. The opening brief asked the trial court “to declare that the County has deceived the public by posing a false justification for its refusal to provide public records under the [PRA] to [Voice of San Diego], and to order the County produce the records responsive to the request as posed without further delay.” (Capitalization omitted.)
The opening brief‘s second argument focused on a redacted spreadsheet that the County released to KPBS and San Diego Union Tribune in response
Unredacted columns in all three of the tables showed the cities where each outbreak occurred; the total number of cases in the outbreak; the number of deaths resulting from the outbreak; the onset date of the outbreak; the date the outbreak was confirmed; whether the outbreak was still active and if not, when it became inactive; lab confirmed cases in the last 14 days; and whether the outbreak was in an unincorporated area. The tables for the skilled nursing facilities and non-skilled congregate living facilities also separated the number of COVID-19 cases between residents and staff. The table setting forth outbreaks in community settings had a column indicating the community sector in which each outbreak occurred. The sectors included “Restaurant/Bar“; “Grocery“; “Healthcare“; “Business“; “Gym“; “Business (Manufacturing)“; “Food Processing“; “Hotel/Resort/Spa“; “Salon“; “Residence“; “Faith-based agency“; “Government“; “Business (Construction)“; “Higher Education“; “Preschool“; “Business (Retailer)“; “Adult Daycare“; “Social Club“; and “Community-based organization.”
Three columns were redacted on all three of the tables, namely the columns labeled “Location,” “Location Address,” and “Outbreak Number *Internal Tracking Number.” In addition, for the tables relating to skilled nursing facilities and non-skilled congregate living facilities, the column
showing the number of “Licensed Beds” was redacted.3 Petitioners’ opening brief argued that the County had not identified any meritorious grounds for redacting the information from the Confirmed Outbreaks Spreadsheet.
After petitioners filed their opening brief, the parties entered into a stipulation, which narrowed the issues to be adjudicated by the trial court.
After the parties entered into the stipulation, the County filed its opposition, setting forth its reasons for redacting the “Location” and “Location Address” columns in the Confirmed Outbreaks Spreadsheet. The County argued that the information was properly withheld on two independent legal bases: (1)
prohibited pursuant to federal or state law” (
In support of the County‘s contention that the redacted information in the Confirmed Outbreaks Spreadsheet is exempted from disclosure pursuant to state law, Dr. Wooten explained that the County is “required to prepare and
According to Dr. Wooten, “All information contained in the [Confirmed Outbreaks Spreadsheet] is also contained in or derived from the individual case or outbreak reports prepared by the Public Health Officer and sent to the State Department of Public Health” and is “the County‘s internal document summarizing the information contained in those case and outbreak reports.” Therefore, as Dr. Wooten explained, she considers the information in the Confirmed Outbreaks Spreadsheet, like the individual case and outbreak reports, to be confidential pursuant to
As Dr. Wooten further pointed out,
Address” for the outbreaks because she did not believe that information could be disclosed without linking to individuals who tested positive for COVID-19.
Next, Dr. Wooten explained the basis for the County‘s contention that, under the PRA‘s catchall exemption, “the public interest served by not disclosing” the “Location” and “Location Address” information appearing in the Confirmed Outbreaks Spreadsheet “clearly outweighs the public interest served by disclosure of the record.” (
Dr. Wooten‘s declaration also pointed out that the public would not be better equipped to avoid contracting COVID-19 if the County disclosed the specific location of outbreaks. Presumably referring to outbreaks in community settings, Dr. Wooten stated, “There is no correlation between the location of an Outbreak and the risk of later catching the virus at that same location. An ‘Outbreak’ does not mean individuals contracted the virus at that Outbreak location; it means only that three or more individuals, from different households, all tested positive for COVID-19 and visited or worked in that location during a certain window of time. If a particular Outbreak location was an unacceptable health risk to the public, the County Health Officer would close the location down.” Dr. Wooten further explained that although the Confirmed Outbreaks Spreadsheet contains numerous outbreaks that are identified as still being active, “[t]he term ‘active’ as used by the County to document COVID-19 outbreaks is a clinical term. It has nothing to do with whether there is an ongoing infectious threat at an outbreak site. There is no correlation between an ‘active’ outbreak and risk of ‘contagion’ at the location of that outbreak. An active outbreak means only that someone has had an illness onset at the outbreak site within the last 14 days.”
Similarly, in the “Commentary” piece appearing in the San Diego Union Tribune, Dr. Wooten and her coauthors pointed out that although members of the public are not provided with the specific location of outbreaks, they are informed about the type of community setting where outbreaks have occurred, and the public can use that information to avoid the type of places where they may contract COVID-19. “Daily, the count identifies the types of locations that experienced outbreaks, which helps inform people about the types of places they visit.” Moreover, as the authors
explained, “Collectively, our community outbreaks represent just 4.2% of the positive cases. Knowing
After receiving the parties’ briefing, the trial court held a hearing, took the matter under submission, and requested supplemental briefing. On November 19, 2020, after receiving the supplemental briefs, the trial court denied the petition, relying on both of the independent grounds cited by the County in its opposition.
Specifically, the trial court first decided that the redacted “Location” and “Location Address” information was exempt from disclosure under
the County had met its burden to prove that the public interest in nondisclosure clearly outweighed the public interest in disclosure. Among other things, the trial court pointed out that Dr. Wooten‘s declaration was uncontradicted in establishing that “revealing outbreak location information is likely to inhibit business owners and other individuals from being forthcoming when reporting outbreaks and responding to contact tracing information requests.” Further, the trial court noted that “it is undisputed that Dr. Wooten is an expert in the field of public health, and more specifically combating a communitywide outbreak of a contagious disease.”6
official or supporting the decision of the public official refusing disclosure, is not a final judgment or order within the meaning of
On January 14, 2021, we issued an order summarily denying the petition.8 Petitioners filed a petition for review, which our Supreme Court granted on March 25, 2021. The order granting review transferred the matter to us with directions to issue an order to show cause why the relief
sought in the writ petition should not be granted. We issued such an order, received briefing, and held oral argument.9
DISCUSSION
A. Overview of the PRA
We begin with an overview of the PRA. “The PRA and the California Constitution provide the public with a broad right of access to government information. . . . The PRA, enacted in 1968, grants access to public records held by state and local agencies. (
“As the result of a 2004 initiative, Proposition 59, voters enshrined the PRA‘s right of access to information in the state Constitution . . . (
construed if it furthers the people‘s right of access, and narrowly construed if it limits the right of access.” (
“Despite the value assigned to robust public disclosure of government records both in the California Constitution and in the PRA, two statutory exceptions nonetheless exist. The first is
In redacting the Confirmed Outbreaks Spreadsheet, the County relied both on the catchall exemption in
privilege.” (
We proceed by first considering the catchall exemption. Because, as we will explain, we conclude that the County has met its burden to prove that it is justified under the catchall exemption to redact “Location” and “Location Address” information from the Confirmed Outbreaks Spreadsheet, we need not, and do not, consider whether the redactions would also be justified under
B. The County Was Justified in Redacting the Location and Location Address Information From the Confirmed Outbreaks Spreadsheet Under the PRA‘s Catchall Exemption
”
Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1329 (County of Santa Clara).)
The County relies on Dr. Wooten‘s declaration to establish the public interest served by redacting the “Location” or “Location Address” information from the Community Outbreaks Spreadsheet. The County argues, “As Dr. Wooten explains, publication of location information would undermine the County‘s public health response. Specifically, ‘investigation and tracing require a high level of trust between investigator/tracer and the member of the public being interviewed.’ ”
As we have detailed, Dr. Wooten‘s declaration incorporates the “Commentary” piece published in the San Diego Union Tribune in which she and her coauthors explain the reason for withholding the location of outbreaks. “Contact tracing and case investigation form a major pillar of our fight against COVID-19, and we‘re very concerned releasing outbreak locations could impede those efforts. Investigation and tracing require a high level of trust between investigator/tracer and the member of the public being interviewed to help paint a complete picture of the movement of infection between individuals and places. Individuals and businesses who fear—reasonably or otherwise—that information they provide will be made public are considerably less likely to provide the very vital details that identify and mitigate outbreaks.”
The County also identified the public interest in advancing effective contact tracing when explaining to both KPBS and San Diego Union Tribune why it was redacting information about the outbreak locations. As the County explained, “There is a significant government interest during a pandemic in the candid exchange of information between those linked to these outbreak locations and the Public Health Officer‘s disease investigators. Contact tracing only works when those that are being interviewed are completely honest and forthcoming with relevant information. The Department of Public Health‘s investigators assure those they interview that the information they provide will be kept confidential. Many people investigators speak with are fearful that providing the name of the location where they were potentially infected could have negative effects on that location whether it be a church, a restaurant or a place of business. Additionally, it has the potential to reveal the diagnosis of particular individuals if disclosed. Releasing the names of these locations and the addresses will have a chilling effect on the open communication necessary to ensure the Public Health Officer is able to effectively combat active outbreaks.”
In short, according to the County, the redaction of “Location” and “Location Address” information advances a major pillar in the County‘s fight
Petitioners do not dispute Dr. Wooten‘s expertise, and they submit no evidence to contradict her expert opinion that the withholding of outbreak location information advances the County‘s efforts in combating the COVID-19 pandemic. Instead, petitioners contend that Dr. Wooten‘s opinion is “solely supported by conjecture.” According to petitioners, “the County offers neither statistical data to show the linkage between outbreak disclosure and contact tracing, nor is there any scholarly work to indicate a basis for such an opinion, even if provided by an expert.” (Capitalization omitted.) Petitioners contend that the County‘s position is based on “speculative concerns, fears and worries over the possible effect of disclosure.” As we will explain, we reject the argument.
Petitioners correctly point out that the trial court would have been entitled to discount the weight of Dr. Wooten‘s expert opinion about effective contact tracing methodology if it determined that her opinion was unduly speculative or without a proper basis. (See, e.g., Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 771-772 [“the trial court acts as a gatekeeper to exclude expert opinion testimony that is (1) based on matter of a type on which an expert may not reasonably rely, (2) based on reasons unsupported by the material on which the expert relies, or (3) speculative“]; In re Scott (2003) 29 Cal.4th 783, 823 [“Although experts may testify about their opinions, the fact finder decides what weight to give those opinions. This is especially important when the witnesses are not neutral court-appointed experts . . . .“].) Here, however, the trial court did not find Dr. Wooten‘s
In arguing that Dr. Wooten‘s opinion is not entitled to weight, petitioners focus on Dr. Wooten‘s discussion of Los Angeles County‘s decision to release information about location outbreaks. Dr. Wooten states, “Based on the contact tracing data reported on its website, Los Angeles County makes about 0.7 contacts per case investigation. The [County of San Diego‘s] rate of contacts per investigation is 2.7, almost 4 times higher which greatly helps [it] keep a low test-positive rate—a rate much lower than Los Angeles County‘s rate. I believe the fact that Los Angeles discloses the specific locations of Outbreaks is a reason why that county has low contact tracing numbers.” Petitioners point out that there are other significant differences between Los Angeles and San Diego counties that may explain the difference in contact tracing outcomes, such as population size, and they speculate that Los Angeles County may have devoted less resources to contact tracing. Accordingly, petitioners contend that “Dr. Wooten‘s claims are of limited, if any, weight.”
However, based on our independent review of the record, petitioners place undue emphasis on Dr. Wooten‘s discussion of Los Angeles County‘s experience with contact tracing in attacking the totality of her expert opinion. When read in the context of the arguments made in the trial court, it is evident that Dr. Wooten was not claiming to have relied on the contact tracing outcomes in Los Angeles County in formulating her opinion that San Diego County should withhold information about outbreak locations. Instead, Dr. Wooten‘s declaration was submitted after petitioners submitted their opening brief, and Dr. Wooten specifically discussed Los Angeles County in responding to an argument made by petitioners. In attacking the County‘s concern that publicly releasing information about the location of COVID-19 outbreaks would harm contact tracing efforts, petitioners’ opening brief argued that “there is actual evidence to the contrary indicating that no such imagined harm will arise, and that the County merely conjures up worst-case scenarios to avoid disclosure.” Specifically, petitioners pointed out that “[t]he County of Los Angeles has, and continues to presently, disclose specific location data as to community outbreaks and infections within its jurisdiction without quantifiable detriment.” As we read Dr. Wooten‘s declaration, the discussion of Los Angeles County is included to respond to this specific argument made by petitioners. However, Dr. Wooten‘s expert opinion that effective contact tracing requires
In contending that we should not give weight to Dr. Wooten‘s opinion, petitioners also rely on case law holding that vague or speculative assertions of harm or adverse consequences are not sufficient to justify a public agency‘s decision to withhold public records under the PRA‘s catchall exemption. Those cases all follow the principle articulated in CBS, Inc. v. Block (1986) 42 Cal.3d 646, at page 652 (CBS), that “[a] mere assertion of possible endangerment does not ‘clearly outweigh’ the public interest in access to . . . records” (italics added). The cases arise in a variety of circumstances. (Ibid. [a sheriff withheld records of concealed weapon applications and licenses, stating that “releasing this information will allow would-be attackers to more carefully plan their crime against licensees and will deter those who need a license from making an application,” but this concern was “conjectural at best,” and constituted nothing more than “[a] mere assertion of possible endangerment“]; Long Beach Police Officers Assn. v. City of Long Beach (2014) 59 Cal.4th 59, 75 [rejecting the city‘s blanket refusal to release the names of police officers involved in on-duty shootings because a lieutenant‘s declaration that public disclosure could expose an officer and the officer‘s family to harassment or retaliatory violence was too vague and speculative when the city offered ” ‘no evidence’ of a ‘specific safety concern regarding any particular officer’ “]; Commission on Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 301-302 [when a public commission withheld records showing peace officers’ names and employment information, with the explanation “that in light of the ‘dangerous and demanding work’ performed by peace officers, releasing such information to the public creates a ‘potential for mischief,’ ” the court held that the blanket refusal to release the records was improper because the “contention that peace officers in general would be threatened by the release of the information in question is purely speculative“]; California State University v. Superior Court (2001) 90 Cal.App.4th 810, 835 (California State University) [a state university could not refuse to disclose the identities of anonymous private donors who obtained access to luxury suites in a newly constructed arena on campus by claiming, without evidence, that disclosure would likely lead to the loss of present and future donations because those “unsupported statements constitute nothing more than speculative, self-serving opinions” unconnected to any “admissible evidence in the record that any license agreements will be canceled if licensee names are disclosed to the public“]; New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579, 1585-1586 (New York Times) [when a water district
The cases that petitioners cite do not convince us that we should not give weight to Dr. Wooten‘s opinion in deciding whether the public interest in redacting the “Location” and “Location Address” information clearly outweighs the public interest in disclosure. Unlike the speculative and vague prospect of adverse consequences in the cases that petitioners cite, the dangers to the public from the spread of disease during the COVID-19 pandemic are real and concrete. In the face of the real public health crisis caused by the COVID-19 pandemic, petitioners do not dispute that the ability to conduct effective contact tracing is a major pillar in the fight against the spread of the disease. The record contains the uncontradicted opinion of Dr. Wooten that promoting trust between members of the public and contact tracers is crucial if the public is to candidly and fully cooperate in contact tracing. Thus, Dr. Wooten‘s expert opinion in the field of public health regarding the best way to fight a pandemic is nothing like the vague and inexpert opinions offered by the public agencies to support the speculative harms alleged in the case law cited by petitioners.11
Petitioners further argue that Dr. Wooten‘s opinion that contact tracing would be undermined if the County released the location of COVID-19 outbreaks is not credible because the evidence in the record shows that the County has publicly disclosed location information for certain disease outbreaks, “all without apparent concern of diminished outbreak notifications going forward.” Specifically, petitioners point to the County‘s public disclosure of (1) the name and address of a restaurant at which a hepatitis A outbreak occurred in 2017;12 (2) a case of tuberculosis at a local high school during specific dates in 2020;13 and (3) the specific number of COVID-19 cases connected to students at San Diego State University. Dr. Wooten‘s declaration provides further context as to why the County disclosed outbreak locations in those instances.
Having reviewed the relevant documentation, we conclude that the disclosure of outbreak locations in the three instances identified by petitioners does not show that, in the context of the COVID-19 pandemic, the County lacks a genuine concern with “diminished outbreak notifications going forward.” The hepatitis A and tuberculous outbreaks are not comparable to the COVID-19 outbreaks because they were limited in scope and did not occur in the context of a widespread pandemic where ongoing contact tracing is a necessary and important pillar in the fight against the disease. Moreover, unlike in the
With respect to the County‘s public disclosure of the number of students at San Diego State University who contracted COVID-19, because of the size of the university, disclosure that a certain number of students contracted COVID-19 does not pose any risk of revealing confidential information that might discourage the public from participating in future contact tracing efforts. Indeed, the disclosure that a certain number of COVID-19 cases occurred within a large student-body is akin to the County‘s disclosure that a COVID-19 outbreak occurred in a smaller-sized city within the County.14 Moreover, as in the case of the hepatitis A and tuberculosis outbreaks, the County had a specific public health rationale for releasing the information about the outbreak occurring at San Diego State University. Specifically, as Dr. Wooten explained, the County disclosed the number of cases that occurred in students “for the purpose of attempting to change student behavior (unmasked socializing) that was causing the outbreaks.” In contrast, as Dr. Wooten explained, no public health rationale supports the release of information of the “Location” and “Location Address” of COVID-19 outbreaks in general.
In sum, through the declaration of Dr. Wooten, the County has identified an important public health reason for redacting the “Location” and “Location Address” information in the Confirmed Outbreaks Spreadsheet. Petitioners have not succeeded in their attempts to undermine the weight of that evidence. As the County has established, contact tracing is a major pillar in
2. The Public Interest in Obtaining the Redacted Information
Having considered the important public interest served by the County‘s redaction of the “Location” and “Location Address” information from the Confirmed Outbreaks Spreadsheet, the next step in our analysis is to consider the countervailing public interest in obtaining that information. Petitioners identify two interests that would be served by disclosure: (1) “the location data offers the public an understanding of the risks involved in frequenting a location known to have one or more outbreaks,” and (2) the information would show the public “how its government is performing in combating the ongoing health crisis.” We discuss these interests in turn.
We first examine petitioners’ contention that members of the public have an interest in the “Location” and “Location Address” information because they can use that information to protect themselves or others from COVID-19. Petitioners’ argument relies on the common sense notion that it is best to avoid a location where infection has occurred, and that persons who were at that location would want to know of the location to assess whether they might have been exposed. Although we understand petitioners’ argument, the record does not support petitioners’ contention that a member of the public can better avoid COVID-19 infection if he or she knows of the particular locations where outbreaks occurred.
As Dr. Wooten stated, “There is no correlation between the location of an Outbreak and the risk of later catching the virus at that same location. An ‘Outbreak’ does not mean individuals contracted the virus at that Outbreak location; it means only that three or more individuals, from different households, all tested positive for COVID-19 and visited or worked in that location during a certain window of time. If a particular Outbreak location was an unacceptable health risk to the public, the County Health Officer would close the location down.” (Italics added.) Further, according to Dr. Wooten, “There is no correlation between an ‘active’ outbreak and risk of ‘contagion’ at the location of that outbreak. An active outbreak means only that someone has had an illness onset at the outbreak site within the last 14 days.” (Italics added.) As the “Commentary” piece appearing in the San Diego Union Tribune persuasively points out, community outbreaks represent just 4.2% of the positive cases. Thus, even were the public told about the location of outbreaks, “[k]nowing the location of where individuals were known to have had COVID-19 will not keep you safe at a time when the virus is everywhere.”
We understand that the public is keenly interested in finding out the exact location where outbreaks have occurred. We can also imagine some exceptional circumstances where a member of the public may avoid spreading disease by knowing that he or she has been in a location where an outbreak was recently confirmed.15 However, the record establishes that access to the “Location” and “Location Address” information in the Confirmed Outbreaks Spreadsheet would not have meaningful value in helping the public avoid infection with COVID-19.
Second, we consider petitioners’ claim that the information about the location of the outbreaks would help assess the efficacy of the government‘s response to the pandemic. Specifically, petitioners argue that “the public has an intense interest in understanding which government measures are working, and which are not.” According to petitioners, “[t]he public‘s understanding of the County‘s use of the allocation of the extraordinary sums of money being used is important in a fluid situation such as this ongoing COVID-19 crisis, so that waste, fraud, and ineptitude may be diminished, and the public can better understand what basis government has in curtailing personal freedoms and rights at this time.” Petitioners’ argument depends on the principle that ” ‘[i]f the records sought pertain to the conduct of the people‘s business there is a public interest in disclosure.’ . . . [T]he issue is ‘whether disclosure would contribute significantly to public understanding of government activities.’ ” (County of Santa Clara, supra, 170 Cal.App.4th at p. 1324.)
We do not question the public‘s strong interest in assessing the government‘s response to the pandemic, including whether the government has effectively used its resources to advance public health and whether restrictions on personal freedom are warranted. Moreover, news media organizations, including petitioners, have indisputably played an important role during the pandemic by obtaining public records so that the public may analyze the
Petitioners contend that it is ”effectively impossible to corroborate” the “efficacy, efficiency, and cost” of the government‘s pandemic response without knowing the exact location of each outbreak. (Italics added.) That assertion strikes us as an unwarranted and unsupported exaggeration. Certain hypothetical scenarios may exist in which “Location” and “Location Address” information for COVID-19 outbreaks might contribute to an understanding of whether the government should have taken a different approach to allocating its public health or law enforcement resources. However, petitioners have not identified any scenario in which the public‘s ability to evaluate the government‘s response would be significantly improved if it knew the exact address where an outbreak occurred, as opposed to knowing the information that is not redacted from the Confirmed Outbreaks Spreadsheet, including the city, community sector (such as “Restaurant/Bar,” “Gym,” etc.), date, and number of cases for each outbreak. Therefore, we conclude that disclosure of the redacted “Location” and “Location Address” would not ” ‘contribute significantly to public understanding of government activities.’ ” (County of Santa Clara, supra, 170 Cal.App.4th at p. 1324.)
3. The Public Interest in Redacting the Information Clearly Outweighs the Public Interest in Disclosure
In sum, having considered and balanced the public interest in redacting the “Location” and “Location Address” information with the public interest in gaining access to that information, we conclude that under the PRA‘s catchall exemption the County has met its burden to establish that “on the facts of the particular case the public interest served by not disclosing the record clearly outweighs the public interest served by disclosure of the record.” (
During a deadly pandemic, contact tracing is a major pillar in fighting the spread of disease. The uncontradicted evidence in the record establishes that the redaction of the “Location” and “Location Address” information from the Confirmed Outbreaks Spreadsheet advances the public‘s voluntary and candid cooperation with contact tracing efforts. Although members of the public understandably are interested in learning the exact location of COVID-19 outbreaks, the disclosure of that information does little to advance either the public‘s ability to avoid COVID-19 infection or the public‘s understanding of whether the government is taking appropriate steps to address the pandemic. On the contrary, the County has established that release of the “Location” and
DISPOSITION
The petition for extraordinary writ is denied.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
Notes
On appeal, petitioners contend that the trial court erred by not resolving the issue of whether the County improperly failed to release the documents requested by Voice of San Diego on April 10, 2020. We disagree. Based on the plain language of the parties’ stipulation, the trial court did not err in declining to adjudicate that issue, as it was no longer within the scope of the issues in dispute. Specifically, the parties stipulated in the trial court that the issues in dispute would be narrowed to petitioners’ request for “(1) injunctive relief that the Court order the County to produce only the Confirmed Outbreaks Spreadsheets with the two columns under the headings ‘Location’ and ‘Location Address’ unredacted, and (2) declaratory relief with respect to the public‘s right to such information from [the County] under the [PRA].” (Italics added.)