1 LAW OFF ICES S HERMAN & HO WARD L. L. C. 201 EAST W ASHINGTON STREET, SUITE 800 PHOENI X, ARIZONA 85004-2327 2 TELEPHONE: (602) 240-3000 FAX: (602) 240-6600 (AZ BAR FIRM NO. 00441000) 3 Gregory W. Falls (AZ Bar No. 011206) (GFalls@ShermanHoward.com) Craig A. Morgan (AZ Bar No. 023373) (CMorgan@ShermanHoward.com) Lindsay H.S. Hesketh (AZ Bar No. 031233) (LHesketh@ShermanHoward.com) Co-Counsel for Defendants Arizona Department of Health Services and Dr. Cara Christ 4 5 6 7 IN THE SUPERIOR COURT OF THE STATE OF ARIZONA 8 IN AND FOR THE COUNTY OF MARICOPA 9 10 11 12 13 Phoenix Newspapers, Inc., Scripps Media Inc., KPNX-TV Channel 12, a Division of Multimedia Holdings Corporation, and Meredith Corporation, Plaintiffs, v. 15 Arizona Department of Health Services and Dr. Cara Christ, in her official capacity as the Director of the Arizona Department of Health Services, 16 Defendants. 14 Case No. CV2020-005385 NOTICE OF FILING DECLARATION OF COLBY BOWER IN SUPPORT OF DEFENDANTS’ OBJECTION TO PLAINTIFFS’ APPLICATION FOR ORDER TO SHOW CAUSE (Assigned to Hon. Christopher Coury) 17 18 The Arizona Department of Health Services and its Director Dr. Cara Christ hereby 19 give notice of the filing of the Declaration of Colby Bower in Support of Defendants’ 20 Objection to Plaintiffs’ Application for Order to Show Cause, a copy of which is attached 21 as Exhibit 1. 22 DATED: May 15, 2020. 23 SHERMAN & HOWARD L.L.C. 24 25 By /s/ Craig A. Morgan Gregory W. Falls Craig A. Morgan Lindsay H.S. Hesketh 201 East Washington Street, Suite 800, Phoenix, Arizona 85004-2327 Attorneys for Defendants 26 27 28 Ac t i v e / 5 1 7 7 7 8 3 0 . 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 ORIGINAL of the foregoing e-filed on May 15, 2020 and a COPY emailed this same date to: David J. Bodney Bodneyd@ballardspahr.com Craig Hoffman hoffmanc@ballardspahr.com Ian Bucon buconi@ballardspahr.com Ballard Spahr LLP One East Washington Street, Suite 2300 Phoenix, Arizona 85004-2555 Attorneys for Plaintiffs Brian M. Bergin bbergin@bfsolaw.com Kevin M. Kasarjian kkasarjian@bfsolaw.com Bergin Frakes Smalley & Oberholtzer, PLLC 4343 E. Camelback Road, Suite 210 Phoenix, Arizona 85018 Attorneys for Defendants 16 17 /s/ Diana J. Hanson 18 19 20 21 22 23 24 25 26 27 28 2 Ac t i v e / 5 1 7 7 7 8 3 0 . 1 EXHIBIT 1 1 DECLARATION OF COLBY BOWER 2 STATE OF ARIZONA 3 County of Maricopa 4 5 6 ) ) ss. ) I, Colby Bower, for my unsworn declaration made under penalty of perjury under the laws of the United States and the State of Arizona, hereby declare as follows: 1. I am over 21 years of age, of sound mind, and capable of making this 7 declaration. I have personal knowledge of the matters set forth herein based on my 8 participation in or observation of them. If called as a witness to testify as to the matters 9 set forth herein, I could and would testify competently with respect thereto. 10 11 12 2. I am making this declaration in connection with Maricopa County Superior Court Case No. CV2020-005385 (the “Litigation”). 3. I am the Assistant Director of Public Health Licensing Services and 13 Policy and Intragovernmental Affairs at the Arizona Department of Health Services (the 14 “Department”). In that position, I supervise among other things the Department’s Office 15 of Administrative Counsel and Rules (“ACR”). 16 4. The Department has enacted policies regarding the processing of public 17 records requests. 18 submitted to ACR for review and processing. 19 5. Under these policies, public records requests from the media are I have oversight over ACR’s processing of public records requests from 20 the media, including the public records requests at issue in the Litigation (collectively, the 21 “Requests”). 22 23 6. behalf of the Department. 24 25 I am authorized to make, and therefore I am providing, this declaration on Cailtin McGlade’s Public Records Request 7. On April 7, 2020, The Arizona Republic and azcentral.com reporter 26 Caitlin McGlade submitted a public records request to the Department. A true and correct 27 copy of Ms. McGlade’s public records request is included in the email chain attached as 28 Exhibit A. 1 8. Ms. McGlade stated: “[T]he Governor’s executive order today requires 2 nursing homes to report to ADHS every week the number of COVID-19 positive 3 residents, the number of transfers to and from an acute hospital, the number and type of 4 PPE and the estimated use of each type of PPE per week. I am submitting a records 5 request for those reports.” 6 9. Ms. McGlade also requested: “All weekly reports submitted to the state 7 by nursing homes that detail the number of COVID-19 positive residents, the number of 8 transfers to and from hospitals, the number and type of PPE and the estimated use of each 9 type of PPE per week. Please fulfill this request on a rolling basis as these reports will be 10 11 submitted every week.” 10. On April 7, 2020, the Department’s Public Information Officer, Holly 12 Poynter, confirmed receipt of Ms. McGlade’s public records request. A true and correct 13 copy of Ms. Poynter’s confirmation is included in the email chain attached as Exhibit A. 14 15 11. On April 7, 2020, ACR also confirmed receipt of Ms. McGlade’s public records request and stated: 16 Please note that given ADHS’ daily statutory health and safety related duties, including responding to the COVID-19 pandemic, it is currently unclear as to how long it will take to respond to your request. After the Department determines what it has that is responsive and whether that information is releasable (see e.g.: A.R.S. 36-404, 36-664, A.R.S. Title 36, Chapter 9, Articles 6 and A.A.C. R9-1-303(D)), we will supplement this initial response. 17 18 19 20 21 A true and correct copy of ACR’s confirmation is included in the email chain attached as 22 Exhibit A. 23 12. On May 4, 2020, ACR informed Ms. McGlade that the Department was 24 finalizing its response to her public records request and anticipated sending the response 25 on May 5, 2020. A true and correct copy of ACR’s email is included in the email chain 26 attached as Exhibit A. 27 28 13. On May 5, 2020, ACR sent an email to Ms. McGlade with a response to her public records request. True and correct copies of ACR’s email and the response to 2 1 2 3 Ms. McGlade’s public records request are collectively attached as Exhibit B. 14. At no time did Ms. McGlade clarify that her requests did not seek personally identifying information about individuals. 4 5 Nicole Grigg’s Public Records Request 15. On April 13, 2020, ABC15 reporter Nicole Grigg submitted a public 6 records request to the Department. A true and correct copy of Ms. Grigg’s public records 7 request is included in the email chain attached as Exhibit C. 8 16. 9 Ms. Grigg stated: ABC15 would like to formally request any outbreaks in businesses, long-term care facilities, or congregate settings in the zip codes with confirmed cases. 10 11 This can include any/all businesses that the state has worked with, or individual counties. 12 • Please include a list by name of businesses -- number of positive cases 13 14 • Please include a list of any congregate setting that the state has tracked with positive cases 15 • Please include all long-term care facilities with the number of positive cases 16 17 .... 18 This request includes copies of every document related to the matter, regardless of the format in which the information is stored. 19 20 17. On April 13, 2020, Ms. Poynter (the Department’s Public Information 21 Officer) confirmed receipt of Ms. Grigg’s public records request. A true and correct copy 22 of Ms. Poynter’s confirmation is included in the email chain attached as Exhibit C. 23 18. On May 4, 2020, ACR informed Ms. Grigg that the Department was 24 finalizing its response to her public records request and anticipated sending the response 25 on May 5, 2020. A true and correct copy of ACR’s email is included in the email chain 26 attached as Exhibit C. 27 28 19. On May 5, 2020, ACR sent an email to Ms. Grigg with a response to her public records request. True and correct copies of ACR’s email and the response to Ms. 3 1 2 3 Grigg’s public records request are collectively attached as Exhibit D. 20. identifying information about individuals or otherwise narrow or clarify her request. 4 5 At no time did Ms. Grigg clarify that her request did not seek personally Katie Wilcox’s Public Records Request 21. On April 7, 2020, 12 News executive producer Katie Wilcox submitted a 6 public records request to the Department. A true and correct copy of Ms. Wilcox’s public 7 records request is included in the email chain attached as Exhibit E. 8 22. 9 My name is Katie Wilcox, I work for 12 News in Phoenix. Please consider the following an official request for public records under the Arizona Public Records Law § 39.101 et seq., I am requesting the following public records and information: 10 11 12 • Please provide a copy of the current data provided to the state health department by all testing laboratories including private laboratories, including but not limited to: occupation of the patients tested, zip code where patient lives, whether a patient is hospitalized, in ICU or has died 13 14 15 • Please provide any records indicating the number of healthcare workers tested for COVID-19, and the numbers of healthcare workers currently quarantined or on leave for COVID-19 related symptoms 16 17 18 • A copy of any directives to hospitals regarding PPE provided to healthcare workers 19 • A copy of any directives to hospitals regarding testing of healthcare workers 20 21 • All data related to COVID-19 hospitalizations and ICU admittance related to COVID-19 statewide 22 • Any data or reports related to the number of confirmed positive tests at skilled nursing facilities statewide 23 24 • Any data or reports on the number of inmates or corrections officers confirmed to have COVID-19 statewide 25 26 Ms. Wilcox stated: 23. On April 7, 2020, Ms. Poynter (the Department’s Public Information 27 Officer) confirmed receipt of Ms. Wilcox’s public records request. A true and correct 28 copy of Ms. Poynter’s confirmation is included in the email chain attached as Exhibit E. 4 1 2 24. On April 7, 2020, ACR also confirmed receipt of Ms. Wilcox’s public records request and stated: 3 Please note that given ADHS’ daily statutory health and safety related duties, including responding to the COVID-19 pandemic, it is currently unclear as to how long it will take to conduct the search for records, review any resulting records for confidentiality (see e.g.: A.R.S. 36-664, A.R.S. Title 36, Chapter 9, Article 6 and A.A.C. R9-1-303(D)), and ultimately fulfill your request. After responsive and releasable records (if any) are gathered and reviewed, we will supplement this initial response. 4 5 6 7 8 A true and correct copy of ACR’s confirmation is included in the email chain attached as 9 Exhibit E. 10 25. 11 On April 7, 2020, Ms. Wilcox responded and stated: As all of the requested material is directly related to the COVID-19 crisis and is a matter of public interest, we appreciate and hope you will consider expediting this request for information. 12 13 While some may be covered by a recent Executive Order from Governor Ducey, we believe there are additional records documented in the below request that should be released as well. 14 15 16 A true and correct copy of Ms. Wilcox’s email is included in the email chain attached as 17 Exhibit E. 18 26. On April 22, 2020, Ms. Wilcox sent an email with modifications to her 19 public records request, with additions shown in bold and deletions shown in 20 strikethrough: 21 22 23 24 25 26 27 28 I wanted to check on the status of this request and update it since some of this information has been made available on the state’s website (which I struck out). My name is Katie Wilcox, I work for 12 News in phoenix. Please consider the following an official request for public records under the Arizona Public Records Law § 39.101 et seq., I am requesting the following public records and information: • Please provide a copy of the current data provided to the state health department by all testing laboratories including private laboratories, including but not limited to: occupation of the patients tested, zip code where patient lives, whether a patient is hospitalized, 5 1 in ICU or has died – while some of this has been made available, we are seeking the reports submitted by the laboratories. 2 • Please provide any records indicating the number of healthcare workers tested for COVID-19, and the numbers of healthcare workers currently quarantined or on leave for COVID-19 related symptoms 3 4 5 • A copy of any directives to hospitals regarding PPE provided to healthcare workers 6 • A copy of any directives to hospitals regarding testing of healthcare workers 7 8 • All data related to COVID-19 hospitalizations and ICU admittance related to COVID-19 statewide 9 • Any data or reports related to the number of confirmed positive tests at skilled nursing facilities statewide, including the name of the nursing facility 10 11 • Any data or reports on the number of inmates or corrections officers confirmed to have COVID-19 statewide 12 13 14 A true and correct copy of Ms. Wilcox’s email is included in the email chain attached as 15 Exhibit E. 16 27. On May 4, 2020, ACR informed Ms. Wilcox that the Department was 17 finalizing its response to her public records request and anticipated sending the response 18 on May 5, 2020. A true and correct copy of ACR’s email is attached as Exhibit F. 19 28. On May 5, 2020, ACR sent an email to Ms. Wilcox with a response to her 20 public records request. True and correct copies of ACR’s email and the response to Ms. 21 McGlade’s public records request are collectively attached as Exhibit G. 22 23 29. personally identifying information about individuals. The Requests Seek Confidential Information 24 25 26 27 28 At no time did Ms. Wilcox clarify that her request did not in any way seek 30. On April 7, 2020, Arizona Governor Douglas A. Ducey issued Executive Order 2020-22, which provides: Nursing Care Institutions, ICF-IID, and DD Medical Group Homes shall report through EMResource or alternate form to the Arizona Department of Health Services every week the 6 1 number of COVID-19 positive residents, the number of transfers to and from an acute hospital, the number and type of PPE (N95 masks, surgical masks, surgical gowns, isolation gowns, etc.), and the estimated use of each type of PPE per week. 2 3 31. 4 5 In addition, Arizona statutes and regulations require the reporting of certain communicable disease-related information. 32. 6 A.R.S. § 36-136(I) provides: 7 The director, by rule, shall: 8 1. Define and prescribe reasonably necessary measures for detecting, reporting, preventing and controlling communicable and preventable diseases. The rules shall declare certain diseases reportable. . . . 9 10 .... 11 Prescribe reasonably necessary measures to keep 11. confidential information relating to diagnostic findings and treatment of patients, as well as information relating to contacts, suspects and associates of communicable disease patients. In no event shall confidential information be made available for political or commercial purposes. 12 13 14 33. 15 B. An administrator of a health care institution1 or correctional facility in which a case or suspect case of a communicable disease listed in Table 2.12 is diagnosed, treated, or detected or an occurrence listed in Table 2.1 is detected shall, either personally or through a representative, submit a report, in a Department-provided format, to the local health agency within the time limitation in Table 2.1 and as specified in subsection (C) or (D). 16 17 18 19 20 C. Except as described in subsection (D), for each case, suspect case, or occurrence for which a report on an individual is required by subsection (A) or (B) and Table 2.1, a health care provider required to report or an administrator of 21 22 23 A.A.C. § R9-6-202 provides: 1 26 A.A.C. § R9-6-101(40) states that: “‘Health care institution’ has the same meaning as in A.R.S. § 36-401.” A.R.S. § 36-401(22) states that: “‘Health care institution’ means every place, institution, building or agency, whether organized for profit or not, that provides facilities with medical services, nursing services, behavioral health services, health screening services, other health-related services, supervisory care services, personal care services or directed care services and includes home health agencies as defined in § 36151, outdoor behavioral health care programs and hospice service agencies.” 27 2 24 25 28 “Novel coronavirus infection (e.g., SARS or MERS)” is listed in Table 2.1. See also A.A.C. § R9-6-361 (novel coronavirus is a reportable communicable disease). The virus that causes COVID-19 is a novel coronavirus. 7 1 2 3 a health care institution or correctional facility shall submit a report that includes: 1. The following information about the case or suspect case: 4 a. Name; 5 b. Residential and mailing addresses; 6 c. County of residence; 7 d. Whether the individual is living on a reservation and, if so, the name of the reservation; 8 9 10 e. Whether the individual is a member of a tribe and, if so, the name of the tribe; 11 f. Telephone number and, if available, email address; 12 g. Date of birth; 13 h. Race and ethnicity; 14 i. Gender; 15 j. If known, whether the individual is pregnant; 16 k. If known, whether the individual is alive or dead; 17 18 19 20 21 22 23 24 25 l. If known, the individual’s occupation; m. If the individual is attending or working in a school or child care establishment or working in a health care institution or food establishment, the name and address of the school, child care establishment, health care institution, or food establishment; and n. For a case or suspect case who is a child requiring parental consent for treatment, the name, residential address, telephone number, and, if available, email address of the child’s parent or guardian, if known; 2. The following information about the disease: 26 a. The name of the disease; 27 b. The date of onset of symptoms; 28 c. The date of diagnosis; 8 1 d. The date of specimen collection; 2 e. Each type of specimen collected; 3 f. Each type of laboratory test completed; 4 g. The date of the result of each laboratory test; and 5 h. A description of the laboratory test results, including quantitative values if available. 6 7 .... 8 D. For each outbreak for which a report is required by subsection (A) or (B) and Table 2.1, a health care provider required to report or an administrator of a health care institution or correctional facility shall submit a report that includes: 9 10 11 1. A description of the signs and symptoms; 12 2. If possible, a diagnosis and identification of suspected sources; 13 3. The number of known cases and suspect cases; 14 4. A description of the location and setting of the outbreak; 15 16 5. The name, address, telephone number, and, if available, email address of the individual making the report; and 17 18 6. The name, address, telephone number, and, if available, email address of the: 19 a. Health care provider, if reporting under subsection (A) and different from the individual specified in subsection (D)(5); or 20 21 b. Health care institution or correctional facility, if reporting under subsection (B). 22 23 34. The Requests appear to seek COVID-19 reports and other communicable 24 disease-related information reported to the Department pursuant to the foregoing 25 Executive Order and laws. Specifically, the Requests seek the following information: 26 a. Ms. McGlade: 27 • “All weekly reports submitted to the state by nursing homes 28 that detail the number of COVID-19 positive residents, the 9 1 number of transfers to and from hospitals, the number and type 2 of PPE and the estimated use of each type of PPE per week.” 3 (Emphasis added.) 4 b. Ms. Grigg: 5 • “[A]ny outbreaks in businesses, long-term care facilities, or 6 congregate setting in the zip codes with confirmed cases,” 7 including “a list by name of businesses -- number of positive 8 cases,” “a list of any congregate setting that the state has 9 tracked with positive cases,” and “all long-term care facilities 10 with the number of positive cases.” (Emphasis added.) 11 • “This request includes copies of every document related to 12 the matter, regardless of the format in which the information is 13 stored.” (Emphasis added.) 14 c. Ms. Wilcox: 15 • “Any data or reports related to the number of confirmed 16 positive tests at skilled nursing facilities statewide, including 17 the name of the nursing facility.” (Emphasis in original.) 18 • “While some may be covered by a recent Executive Order from 19 Governor Ducey, we believe there are additional records 20 documented in the . . . request that should be released as well.” 21 (Emphasis added.) 22 23 24 25 26 27 28 35. Paragraph 39 of the Complaint in the Litigation alleges that the records at issue in the Litigation are described as follows: In sum, the News Organizations requested access to the following categories of public records related to COVID-19 from the Department (the “Public Records”): (1) “[t]he names and locations of long-term care facilities that have known COVID-19 cases;” (2) “[t]he number of COVID-19 cases and the number of COVID-19 deaths broken down by long-term care facility names and locations;” and (3) “[t]he dates those cases were reported to and/or learned by the State of Arizona;” (4) “[a]ll weekly reports submitted to the state by 10 1 nursing homes that detail the number of COVID-19 positive residents, the number of transfers to and from hospitals, the number and type of PPE and the estimated use of each type of PPE per week;” and (5) “data or reports related to the number of confirmed positive tests at skilled nursing facilities statewide, including the name of the nursing facility.” These Public Records should include all of the COVID-19 Data that Governor Ducey Required be submitted on a weekly basis to the Department by every Nursing Care Institution in the State of Arizona. 2 3 4 5 6 7 36. Notwithstanding the narrower description of the Requests in Paragraph 39 8 of the Complaint, the broad language actually used in the Requests (e.g., “[a]ll weekly 9 reports,” “any outbreaks,” and “[a]ny data or reports”) appears to be seeking information 10 11 beyond what was required to be reported by Executive Order 2020-22. 37. In addition, Ms. Grigg stated that her Request included “copies of every 12 document related to the matter,” and Ms. Wilcox specifically stated that “[w]hile some 13 may be covered by a recent Executive Order from Governor Ducey, we believe there are 14 additional records documented in the . . . request that should be released as well.” 15 16 17 38. Accordingly, the Requests appear to be seeking the confidential information required to be reported under A.R.S. § 36-136 and A.A.C. § R9-6-202. 39. Even under the narrow description of the Requests in Paragraph 39 of the 18 Complaint, “[a]ll weekly reports submitted to the state by nursing homes that detail the 19 number of COVID-19 positive residents” and “data or reports related to the number of 20 confirmed positive tests at skilled nursing facilities statewide” implicate the detailed 21 personally identifiable and other private information required to be reported by law. The 22 Department has determined that this information is confidential. 23 40. In addition, the Litigation seeks the identification of congregate settings 24 and communicable disease-related information broken down by congregate setting. 25 Specifically, the Litigation seeks disclosure of (1) “[t]he names and locations of long- 26 term care facilities that have known COVID-19 cases,” (2) “[t]he number of COVID-19 27 cases and the number of COVID-19 deaths broken down by long-term care facility 28 names and locations,” and (3) “data or reports related to the number of confirmed 11 1 positive tests at skilled nursing facilities statewide, including the name of the nursing 2 facility.” (Emphasis added.) 3 4 5 41. The Department has determined that residential address information from which a person may be identified and disturbed is private and confidential. 42. If the name or address of a congregate setting is disclosed, it will release 6 the residential address of all people who live there, which could lead to the identification 7 of those residents as well as their family members, associates, and contacts. 8 Department has determined that this information is confidential. 9 43. The There is at least one congregate setting where nearly 100% of the patient 10 population has tested positive for COVID-19. In addition, the congregate settings at issue 11 include assisted living homes with ten or fewer residents. Many assisted living homes 12 have five or fewer residents. In each of these cases, it is highly likely that public 13 disclosure of the name or address of a congregate setting could lead to identification of 14 the people living there and their family members, associates, and contacts, along with 15 employees and others associated with the facility. 16 44. The Department’s regulations require it to de-identify public health 17 records disclosed in response to a public records request, which includes removing the 18 address information of an individual and the individual’s relatives, employers, and 19 household members. 20 45. The Department’s regulations are consistent with Executive Order 2020- 21 30, which allows for limited disclosure of addresses where a resident has tested positive 22 for COVID-19 to dispatchers of first responders. The address information must be 23 maintained as confidential and “shall not be shared, disseminated, used for any other 24 purpose or in a way that may be accessible to the public.” 25 46. Moreover, all of the information the Requests seek is at a minimum 26 communicable disease-related information protected from public disclosure and otherwise 27 strictly protected by law. 28 47. The foregoing statutes, regulations, rules, and policies informed the 12 1 Department’s decision to decline producing the records sought through the Requests. 2 Disclosure of the Records at Issue Will Be Detrimental to the Public, Private Citizens, and the State’s Interests 3 4 5 6 48. The Department does not want to take action that could cause or make it easier for people to misdirect their pandemic fears against others. 49. Public disclosure of the name or address of a congregate setting could lead 7 to stigmatization, retaliation, and safety threats against those congregate settings, their 8 employees and residents, and the families of their employees and residents. 9 50. Public disclosure of the name or address of a congregate setting also could 10 lead to discrimination. 11 employees, residents, and their families and associates) may have a more difficult time 12 obtaining goods or services. They may be unwillingly isolated or excluded from society. 13 In addition, COVID-19 may be used as pretext for discrimination based on disabilities, 14 race, national origin, or other protected characteristics. 15 51. For example, people associated with a facility (including Public disclosure of the name or address of a congregate setting could 16 negatively affect the healthcare system and the ability of hospitals to partner with 17 stepdown and long-term care facilities, including congregate settings. 18 52. In Executive Order 2020-22, Governor Ducey required congregate 19 settings to “develop policies and procedures to facilitate the admission and readmission of 20 residents who are ready for safe discharge from an acute care hospital without the 21 requirement of a negative COVID-19 test result.” 22 53. Congregate settings have accepted incoming transfers of patients who 23 have or may have COVID-19. In such cases, the facility may be accepting a new patient 24 with COVID-19 even though the patient’s exposure did not occur at the facility. 25 54. Hospitals and acute care providers rely on congregate settings in order to 26 discharge patients in a safe and timely manner. In addition, some congregate settings are 27 willingly accepting incoming transfers of patients with COVID-19 from other congregate 28 settings in order to help cohort and facilitate the separation of those patients from other 13 1 populations. The optimal operation of the healthcare system depends on this partnership 2 and cooperation. 3 55. If the names of congregate settings with COVID-19 cases are publicly 4 disclosed and the facilities are publicly criticized, it could lead to unwanted disincentives 5 and a fear of accepting transfers of patients who have or may have COVID-19. This 6 could hamper the ability of hospitals to safely and timely discharge patients, which could 7 cause the hospitals to lose bed capacity and hamper their ability to timely and effectively 8 deal with new patients or a potential surge in COVID-19 cases. It also could hamper the 9 ability of congregate settings to cohort and separate patients with COVID-19. 10 56. Public disclosure of the names or addresses of congregate settings could 11 lead to a breakdown in the ability of facilities to safely and timely transfer patients, which 12 would negatively affect the overall healthcare system. 13 57. As a matter of public health, it is important to develop and promote 14 policies that facilitate cooperation and partnerships that allow for the safe and timely 15 transfer of patients who have or may have COVID-19. 16 17 18 19 20 58. Public disclosure of the name or address of a congregate setting also could negatively affect the level and quality of care provided by congregate settings. 59. As a public health agency, the Department does not seek to protect bad actors or facilities that provide inadequate care. 60. However, the Department must balance this against the privacy and public 21 health concerns discussed above as well as the goal to reduce transfers in order to reduce 22 the risk of transfer trauma. This balancing act requires the Department to take into 23 account the best interests of patients and their families along with the public health, the 24 healthcare system, individual facilities, and employees and those associated with 25 individual facilities. 26 61. 27 28 The foregoing are not simply hypothetical concerns, but are based on the Department’s past experience. 62. For example, Hacienda HealthCare (“Hacienda”) experienced significant 14 1 turnover and safety threats as a result of the negative publicity surrounding the facility in 2 late 2018 and into 2019.3 3 4 63. Multiple directors of nursing resigned, and Hacienda experienced significant turnover among middle and upper management. 5 64. Hacienda also had trouble meeting its staffing needs. Congregate settings 6 rely on staffing agencies to provide emergency staffing coverage, and staffing agencies 7 would not work with Hacienda. This made it difficult for Hacienda to find adequate 8 staffing on an emergency basis 9 65. Hacienda also experienced significant hostility and safety threats. The 10 facility received threats and hate mail, and people would yell things as they walked or 11 drove by the property. Employees and others associated with the facility were harassed. 12 There was even a shooting in Hacienda’s parking lot. 13 66. As a result of these and other safety threats, Hacienda removed the sign 14 that identified the name of the facility, hired off-duty police officers to provide security, 15 and installed a security card system to limit entry into the facility. 16 removed the signs/banners on vehicles that identified the name of the facility because of 17 the significant harassment its employees experienced as they were driving. 18 67. Hacienda also These issues threatened the facility’s ongoing viability. Hacienda had 19 significant problems obtaining adequate insurance, and it eventually closed the skilled 20 nursing portion of its operation due to financial problems. 21 22 68. The closure of the skilled nursing portion of the facility disrupted continuity of care and required long-term patients to be transferred to other facilities. 23 69. Research has demonstrated that transfers of long-term patients will result 24 in bad outcomes among approximately 10% of the patients. This is known as “transfer 25 trauma.” Whenever patients are transferred, health care providers attempt to minimize 26 3 27 28 The Department acknowledges the serious and egregious crime that occurred at Hacienda. The discussion of Hacienda in this declaration is in no way intended to minimize the gravity of that crime or to draw a comparison between the crime and the COVID-19 pandemic. Instead, the discussion is meant to illustrate the negative collateral effects on patient care that can arise as a result of negative publicity. 15 1 2 3 4 the effects of “transfer trauma.” 70. Consistent with the research on transfer trauma, approximately 10% of the long-term patients transferred from Hacienda experienced problems. 71. To the extent the Requests seek to truly place the information requested in 5 the hands of those who most need that information, Governor Ducey has issued an 6 Executive Order that appropriately balances the Department’s concerns stated in this 7 declaration with reasonable disclosure. Specifically, on May 4, 2020, Governor Ducey 8 issued Executive Order 2020-35, which provides: 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Health Care Institutions licensed as Nursing Care Institutions, Residential Care Institutions, ICF-IIDs, and Medical Group Homes for Individuals with Developmental Disabilities shall: a. Report to current residents of congregate settings, next of kin and guardians the number of diagnosed cases and deaths due to COVID-19 occurring within the population of the facility within 24 hours of confirming such information, and provide regular updates on their activities to keep residents safe to residents, next of kin and guardians; and b. Upon receipt of a completed application to a congregate setting and a request from a prospective resident, their next of kin or guardian, report the number of cases and deaths due to COVID-19 occurring within the population of the congregate setting to the prospective resident, their next of kin and any guardian; and c. Upon acceptance of the transfer of a resident into their congregate setting and upon request from the transferee, but before the transfer is completed, report to the transferring resident, their next of kin and any guardian, the number of cases and deaths due to COVID-19 occurring within the population of the congregate setting. 23 .... 24 Information provided through this order shall only be used for the purposes of individual decision making by residents, potential residents, next of kin and guardians. Such information shall not be used or disclosed for any other reason. 25 26 27 28 16 1 I declare under penalty of perjury under the laws of the United Stated and the 2 State of Arizona that the foregoing is true and correct. 3 May 14, 2020 DATED: _____________________ /s/ Colby Bower Colby Bower 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17 Exhibit A 5072020 State of Arizona Mail - Re: records request cm I Office of Administrative Counsel and Rules - ADHS lift-Eli. Re: records request message Office of Administrative Counsel and Rules - ADHS Mon, May 4: 2020 at 420 pM To: "Mcglade, Caitlin" Cc: Chris Minnick Holly Poynter Bcc: cmorgan@shermanhoward.com, Stephanie Elzenga Stacie Gravito The Arizona Department of Health Services is finalizing its response to your April 7, 2020 public records request and anticipates having it to you tomorrow. Thank you. On Tue, Apr 2020 at 4:43 PM Of?ce of Administrative Counsel and Rules ADHS wrote: The Arizona Department of Health Services is in receipt of your April 7, 2020 public records request. Please note that given daily statutory health and safety related duties, including responding to the pandemic, it is currently unclear as to how long it will take to respond to your request. After the Department determines what it has that is responsive and whether that information is releasable (see 36-404, 36-664, A.R.S. Title 36, Chapter 9, Article 6 and A.A.C. we will supplement this initial reSponse. Thank you. On Tue, Apr 7, 2020 at 4:30 PM Holly Poynter wrote: Hi Caitlin, We received your request and are including our Office of Administrative Counsel and Rules who can identify responsive records and get back to you. Please direct media inquiries for the Arizona Department of Health Services to: Preferred Contact: pio@azdhs.gov Backup - Text to: 480.599.3784 Get the Facts: azhealth.govlcovid Holly Poynter, MPH, CPH Public Information Officer Arizona Department of Health Services 150 N. 18th Avenue, Suite 310, Phoenix, AZ 85007 Email: holly.poynter@azdhs.gov Health and Wellness for all Arizonans DEPARTMENT .I OF HEALTH SERVICES 5!?!2020 State of Arizona Mail - Re: records request On Tue, Apr 7, 2020 at 3:25 PM Mcglade, Caitlin wrote: Thanks! From: Caroline Oppleman Sent: Tuesday, April 7, 2020 3:24 PM To: Mcglade, Caitlin Chris Minnick Holly Poynter Subject: Re: records request Hi Caitlin Chris or Holly from ADHS will follow?up with you. Thanks. Caroline E. Oppleman Public Information Of?cer coppleman@azgaming.gov gaming.az.gov Dir 502.255.3814 Cel 602.91 8.0900 LLJ 1110 W. Washington St., Suite 450 Phoenix, AZ 85007 2i'5 State of Arizona Mail - Re: records request On Tue, Apr 7, 2020 at 3:22 PM Mcglade, Caitlin wrote: Hello, the Governor?s executive order today requires nursing homes to report to the ADHS every week the number of positive residents, the number of transfers to and from an acute hospital, the number and type of PPE and the estimated use of each type of PPE per week. i am submitting a records request for those reports. if the ADHS plans to publish these online please let me know. Thanks! 4/7/2020 Arizona Department of Health Services RECORDS REQUEST Pursuant to the provisions of the Arizona Public Records Law, A.R.S. 39-121, I am requesting an electronic copy of the following public records, or other matterslz All weekly reports submitted to the state by nursing homes that detail the number of positive residents, the number of transfers to and from hospitals, the number and type of PPE and the estimated use of each type of PPE per week. Please ful?ll this request on a rolling basis as these reports will be submitted every week. If challenges arise with this request please contact me, as I will likely be able to help ?nd ways to mitigate these perceived barriers to providing access to public records. If there are ever fees associated with compiling or transmitting these records, please contact me so I can make appropriate arrangements. If there are any segregable portions of the records responsive to this request available before the entirety, please provide those as they become available. If you choose to deny this request, 1) please provide a written explanation for the denial, including a reference to the specific statutory exemption(s) upon which you rely. 2) Also please provide all segregable portions of otherwise exempt material. 3) Also please provide a written, itemized log of all records or other matters being denied. If you are not the person, of?ce or agency who has the authority or ability to comply with this records request, inform me as soon as possible who the proper person, of?ce or agency is. This request is separate from and in no way nulli?es any other outstanding records request. 315 le2020 State of Arizona Mail Re: records request The Arizona Public Records Law requires that public bodies provide access to public records Accordingly, I request that you provide the requested records as soon as possible. I appreciate your cooperation in this matter, Sincerely, Caitlin McGlade 1 Please see Carlson Pima County, 1984; Grif?s v. Pinal County, 2007; Lake City of Phoenix, 2009; Ariz Atty Gen. Op. 70-1, Lake v. City of Phoenix, 2009 Caitlin McGlade Data Reporter azcentralg azcentral The Arizona Republic PART OF THE USA TODAY NETWORK Desk: 602444418502 Cell: 48066212981 CONFIDENTIALITY NOTICE: This e-mail is the property of the Arizona Department of Health Services and contains information that may be PRIVILEGED, CONFIDENTIAL, or othenlvise exempt from disclosure by applicable law. It is intended only for the person(s) to whom it is addressed. If you have received this communication in error, please do not retain or distribute it. Please notify the sender immediately by e-mail at the address shown above and delete the original message. Thank you. Office of Administrative Counsel and Rules Arizona Department of Health Services 4l5 51772020 State of Arizona Mail Re: records request 150 N. 18th Ave, Suite 200, Phoenix, AZ 85007 Phone: 602.542.1020 Fax: 602.364.1150 Health and Wellness for all Arlzonans Of?ce of Administrative Counsel and Rules Arizona Department of Health Services 150 N. 18th Ave, Suite 200, Phoenix, AZ 85007 Phone: 602.542.1020 Fax: 602.364.1150 Health and Wellness for all Arizonans 5l5 Exhibit 5/5/2020 State of Arizona Mail - Response-April 7, 2020 Public Records Request Office of Administrative Counsel and Rules - ADHS Response-April 7, 2020 Public Records Request 1 message Office of Administrative Counsel and Rules - ADHS Tue, May 5, 2020 at 8:58 AM To: "Mcglade, Caitlin" Cc: Chris Minnick , Holly Poynter , gfalls@shermanhoward.com, cmorgan@shermanhoward.com Bcc: Colby Bower , Stephanie Elzenga , Stacie Gravito , Vanessa Gonzales Please see the attached response to your April 7, 2020 public records request. Thank you. -Office of Administrative Counsel and Rules Arizona Department of Health Services 150 N. 18th Ave., Suite 200, Phoenix, AZ 85007 Phone: 602.542.1020 Fax: 602.364.1150 Health and Wellness for all Arizonans 200505-Response (AZ Republic).pdf 519K https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 1/1 ARIZONA DEPARTMENT OF HEALTH SERVICES POLICY INTERGOVERNMENTAL AFFAIRS Sent Via Electronic Mail May 5, 2020 Caitlin McGlade Arizona Republic caitl Re: Response-April 7, 2020 Public Records Request Dear Ms. McGlade: On behalf of the Arizona Department of Health Services I am responding to your public records request, which is dated April 7, 2020 (?Request?). In your Request you ask for information related to outbreaks in nursing homes, speci?cally ?[a]ll weekly reports submitted to the state by nursing homes that detail the number of positive residents, the number of transfers to and from hospitals, the number and type of PPE and the estimated use of each type of PPE per wee While ADHS appreciates your request and shares your priority of transparency, we also have overarching legal and public health responsibilities, including a reSponsibility to protect the privacy of Arizonans? health?related data. For these reasons, and after consultation with its legal counsel, ADHS cannot ful?ll your Request. Even if the information you seek is a ?public record? under Arizona law--privacy, con?dentiality, safety, public health, the state?s general responsibility to protect all Arizonans, and other overriding interests outweigh any public interest in disclosure of the information requested. In addition, based on the following, ADHS believes ful?lling your request would constitute a violation of state law. A.R.S. states: person who obtains communicable disease related information in the course of providing a health service or obtains that information from a health care provider pursuant to an authorization shall not disclose or be compelled to disclose that information except as authorized by state or federal law. (Emphasis added). See also A.R.S. (14), (21), and (it is a class 3 misdemeanor to disclose communicable disease related information in violation of A.R.S. Title 36, Chapter 6, Article 4). Further, A.R.S. states: ?Any medical information or other information from which a person might be identi?ed that is received by the department or local health authority in the Douglas A. Ducey Governor Cara M. Christ, MD, MS Director 150 N. 18th Ave, Suite 200, Phoenix, AZ 85007-2670 602?5424 020 6302-3644150 azhealthgov Health and Wellness for all Arizonans Caitlin McGlade May 5, 2020, Page Two course of an enhanced surveillance advisory is confidential and is not available to the public.? (Emphasis added). See also A.R.S. 1).1 These laws are supported by the Arizona Constitution, Article 2, Section 8, which states, ?No person shall be disturbed in his private affairs without authority of law.? In addition to not complying with state laws, the release of an individual?s home address may have a chilling effect on reporting and ability to control outbreaks of communicable diseases. Public health relies on our partners, including our licensed congregate settings, to report communicable diseases accurately and timely in order to prevent further illness and death. For these reasons, among others, ADI-IS cannot disclose the information requested. That said, currently available de?identi?ed data may be reviewed at: and information related to health and safety de?ciencies at ADHS licensed facilities may be reviewed by conducting a facility search at: Sincerely I) .. . zy/ R0 'ei't Lane, Administrative Counsel i Division of Policy and Intergovernmental Affairs, Administrative Counsel and Rules CC: Chris Minnick and Holly Poynter, Arizona Department of Health Services Greg Falls and Craig Morgan, Sherman and Howard The Arizona Administrative Code supports the foregoing legal interpretation. A.A.C. R9-l-301(7) and require ADHS to ?ensure that public health records disclosed pursuant to a public records request are de- identi?ed? pursuant to 45 CPR. Douglas A. Ducey Governor Cara M. Christ. MD, MS Director 150 N. 18th Ave, Suite 200, Phoenix, AZ 85007-2670 602-542-1020 602?364-1150 azhealthgov Health and Wellness for ail Arizonans Exhibit 5/5/2020 State of Arizona Mail - Re: Public Record request Outbreaks in AZ Office of Administrative Counsel and Rules - ADHS Re: Public Record request Outbreaks in AZ 1 message Office of Administrative Counsel and Rules - ADHS Mon, May 4, 20 To: "Grigg, Nicole" Cc: Chris Minnick , Holly Poynter Bcc: cmorgan@shermanhoward.com, Stephanie Elzenga , Stacie Gravito , Va Gonzales The Arizona Department of Health Services is finalizing its response to your April 13, 2020 public records request and anticipates having it tomorrow. Thank you. On Mon, Apr 13, 2020 at 9:22 AM Holly Poynter wrote: Hi Nicole, We received your request and are including our Office of Administrative Counsel and Rules who can identify responsive records and get Please direct COVID-19 media inquiries for the Arizona Department of Health Services to: Preferred Contact: pio@azdhs.gov Backup - Text to: 480.599.3784 Get the Facts: azhealth.gov/covid __________ Holly Poynter, MPH, CPH Public Information Officer Arizona Department of Health Services 150 N. 18th Avenue, Suite 310, Phoenix, AZ 85007 Email: holly.poynter@azdhs.gov Health and Wellness for all Arizonans On Mon, Apr 13, 2020 at 8:37 AM 'Grigg, Nicole' via PIO - ADHS wrote: PUBLIC RECORDS REQUEST: Dear ADHS Public Records Custodian, Pursuant to ARS. Sec. 39-121 through 39-121.03, the Arizona Public Records Law, ABC15 requests: ABC15 would like to formally request any outbreaks in businesses, long-term care facili es, or congregate se ngs in the zip codes with confirmed cases. This can include any/all businesses that the state has worked with, or individual coun es. Please include a list by name of businesses -- number of posi ve cases Please include a list of any congregate se ng that the state has tracked with posi ve cases Please include all long-term care facili es with the number of posi ve cases To save money and resources, please provide this request in a digital format, if possible. This request includes copies of every document related to the matter, regardless of the format in which the information is stored. This request, made in my position as a reporter for ABC15, is for a non-commercial purpose. Please complete this request within the next 7 days. If this date is not achievable, please let me know immediately. https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 1/2 5/5/2020 State of Arizona Mail - Re: Public Record request Outbreaks in AZ If any records or information are withheld and/or redacted by your agency, please provide an index of the withheld and/or redacted material and the specific stat exemption that prohibits the release of the record or information. Thank you, Nicole Grigg ABC15 Scripps Media, Inc., certifies that its advertising sales agreements do not discriminate on the basis of race or ethnicity. All advertising s agreements contain nondiscrimination clauses. CONFIDENTIALITY NOTICE: This e-mail is the property of the Arizona Department of Health Services and contains information that may be PRIVILEGED, CONFIDENTIAL, or otherwise disclosure by applicable law. It is intended only for the person(s) to whom it is addressed. If you have received this communication in error, please do not retain or distribute it. Please not immediately by e-mail at the address shown above and delete the original message. Thank you. -Office of Administrative Counsel and Rules Arizona Department of Health Services 150 N. 18th Ave., Suite 200, Phoenix, AZ 85007 Phone: 602.542.1020 Fax: 602.364.1150 Health and Wellness for all Arizonans https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 2/2 Exhibit 5/5/2020 State of Arizona Mail - Response-April 13, 2020 Public Records Request Office of Administrative Counsel and Rules - ADHS Response-April 13, 2020 Public Records Request 1 message Office of Administrative Counsel and Rules - ADHS Tue, May 5, 2020 at 8:57 AM To: "Grigg, Nicole" Cc: Chris Minnick , Holly Poynter , gfalls@shermanhoward.com, cmorgan@shermanhoward.com Bcc: Colby Bower , Stephanie Elzenga , Stacie Gravito , Vanessa Gonzales Please see the attached response to your April 13, 2020 public records request. Thank you. -Office of Administrative Counsel and Rules Arizona Department of Health Services 150 N. 18th Ave., Suite 200, Phoenix, AZ 85007 Phone: 602.542.1020 Fax: 602.364.1150 Health and Wellness for all Arizonans 200505-Response (ABC 15).pdf 523K https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 1/1 ARIZONA DEPARTMENT OF HEALTH SERVICES POLICY INTERGOVERNMENTAL AFFAIRS Sent Via Electronic Mail May 5, 2020 Nicole Grigg Nicolggrigglifiabc 5 .com Re: Response-April 13, 2020 Public Records Request Dear Ms. Grigg: On behalf of the Arizona Department of Health Services I am responding to your public records request, which is dated April 13, 2020 (the ?Request?). In your Request, you ask for information related to outbreaks in businesses, long?term care facilities, or congregate settings in the zip codes with con?rmed cases. Speci?cally, your Request seeks: I Name of business?number of positive cases; a Any congregate setting that the state has tracked with positive cases; and 0 Long?term care facilities with the number of positive cases. While ADHS appreciates your request and shares your priority of transparency, we also have overarching legal and public health responsibilities, including a responsibility to protect the privacy of Arizonans? health~related data. For these reasons, and after consultation with its legal counsel, ADHS cannot ful?ll your Request. Even if the information you seek is a ?public record? under Arizona law??privacy, con?dentiality, safety, public health, the state?s general responsibility to protect all Arizonans, and other overriding interests outweigh any public interest in disclosure of the information requested. In addition, based on the following, ADHS believes ful?lling your request would constitute a violation of state law. A.R.S. states: person who obtains communicable disease related information in the course of providing a health service or obtains that information from a health care provider pursuant to an authorization shall not disclose or be compelled to disclose that information except as authorized by state or federal law. . . (Emphasis added). See also A.R.S. (14), (21), and (it is a class 3 misdemeanor to disclose communicable disease related information in violation of A.R.S. Title 36, Chapter 6, Article 4). Douglas A. Ducey Governor Cara M. Christ, MD, MS Director 150 N. 18th Ave, Suite 200, Phoenix, AZ 85007-2670 602-542-1020 602?364?1150 azhealthgov Health and Weilnessfor Arizonans Nicole Grigg May 5, 2020 Page Two Further, A.R.S. states: ?Any medical information or other information from which a person might be identi?ed that is received by the department or local health authority in the course of an enhanced surveillance advisory is con?dential and is not available to the public.? (Emphasis added). See also A.R.S. 1).1 These laws are supported by the Arizona Constitution, Article 2, Section 8, which states, ?No person shall be disturbed in his private affairs without authority of law.? In addition to not complying with state laws, the release of an individual?s home address may have a chilling effect on reporting and ability to control outbreaks of communicable diseases. Public health relies on our partners, including our licensed congregate settings, to report communicable diseases accurately and timely in order to prevent further illness and death. For these reasons, among others, ADHS cannot disclose the information requested. That said, currently available de-identi?ed COVID-19 data may be reviewed at: and information related to health and safety deficiencies at ADHS licensed facilities may be reviewed by conducting a facility search at: Sincerely, w?r ?gobert Lane, Administrative Counsel Division of Policy and Intergovernmental Affairs, Administrative Counsel and Rules CC: Chris Minnick and Holly Poynter, Arizona Department of Health Services Greg Falls and Craig Morgan, Sherman and Howard I The Arizona Administrative Code the foregoing legal interpretation. A.A.C. R9?l -301(7) and -3 03 (D) require ADHS to ?ensure that public health records disclosed pursuant to a public records request are de- identifred? pursuant to 45 C.F.R. Douglas A. Ducey Governor Cara M. Christ, MD, MS Director 150 N. 18th Ave. Suite 200, Phoenix, AZ 85007?2670 602?542-1020 602?364-1150 azhealthgov Health and Wellness for all Arizonans Exhibit 5/5/2020 State of Arizona Mail - RE: 12 News Records Request: Covid-19 Data Office of Administrative Counsel and Rules - ADHS RE: 12 News Records Request: Covid-19 Data 1 message Wilcox, Katie Wed, Apr 22, 2020 at 3:41 PM To: Office of Administrative Counsel and Rules - ADHS Cc: Holly Poynter , "pio@azdhs.gov" , KPNX-Assignmentdesk-Ext Good afternoon, I wanted to check on the status of this request and update it since some of this information has been made available on the state’s website (which I struck out). My name is Katie Wilcox, I work for 12 News in Phoenix. Please consider the following an official request for public records under the Arizona Public Records Law § 39.101 et seq., I am requesting the following public records and information: Please provide a copy of the current data provided to the state health department by all testing laboratories including private laboratories, including but not limited to: occupation of the patients tested, zip code where patient lives, whether a patient is hospitalized, in ICU or has died – while some of this has been made available, we are seeking the reports submitted by the laboratories. Please provide any records indicating the number of healthcare workers tested for COVID-19, and the numbers of healthcare workers currently quarantined or on leave for COVID-19 related symptoms A copy of any directives to hospitals regarding PPE provided to healthcare workers A copy of any directives to hospitals regarding testing of healthcare workers All data related to COVID-19 hospitalizations and ICU admittance related to COVID-19 statewide Any data or reports related to the number of confirmed positive tests at skilled nursing facilities statewide, including the name of the nursing facility Any data or reports on the number of inmates or corrections officers confirmed to have COVID-19 statewide Thank you for your attention to this, Katie Wilcox I-Team Executive Producer kwilcox@12news.com P:602.444.1301│ C:602.359-9014 200 E. VAN BUREN ST. PHOENIX, AZ 85004 From: Wilcox, Katie Sent: Tuesday, April 7, 2020 3:46 PM To: Office of Administrative Counsel and Rules - ADHS Cc: Holly Poynter ; pio@azdhs.gov; KPNX-Assignmentdesk-Ext Subject: RE: 12 News Records Request: Covid-19 Data While I appreciate the response, https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 1/5 5/5/2020 State of Arizona Mail - RE: 12 News Records Request: Covid-19 Data As all of the requested material is directly related to the COVID-19 crisis and is a matter of public interest, we appreciate and hope you will consider expediting this request for information. While some may be covered by a recent Executive Order from Governor Ducey, we believe there are additional records documented in the below request that should be released as well. Thank you again for your consideration, Katie Wilcox I-Team Executive Producer kwilcox@12news.com P:602.444.1301│ C:602.359-9014 200 E. VAN BUREN ST. PHOENIX, AZ 85004 From: robert.lane@azdhs.gov On Behalf Of Office of Administrative Counsel and Rules ADHS Sent: Tuesday, April 7, 2020 1:57 PM To: Wilcox, Katie Cc: Holly Poynter ; pio@azdhs.gov Subject: Re: 12 News Records Request: Covid-19 Data CAUTION - EXTERNAL EMAIL - Please use caution opening attachments and never share your password. Send suspicious email to infosec@tegna.com. The Arizona Department of Health Services is in receipt of your April 7, 2020 public records request. Please note that given ADHS' daily statutory health and safety related duties, including responding to the COVID-19 pandemic, it is currently unclear as to how long it will take to conduct the search for records, review any resulting records for confidentiality (see e.g.: A.R.S. 36-664, A.R.S. Title 36, Chapter 9, Article 6 and A.A.C. R9-1-303(D)), and ultimately fulfill your request. After responsive and releasable records (if any) are gathered and reviewed, we will supplement this initial response. Thank you. On Tue, Apr 7, 2020 at 1:45 PM Wilcox, Katie wrote: Thank you Holly, I will look out for all additional information, Katie Wilcox https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 2/5 5/5/2020 State of Arizona Mail - RE: 12 News Records Request: Covid-19 Data I-Team Executive Producer kwilcox@12news.com P:602.444.1301│ C:602.359-9014 200 E. VAN BUREN ST. PHOENIX, AZ 85004 From: Holly Poynter Sent: Tuesday, April 7, 2020 1:44 PM To: Wilcox, Katie Cc: pio@azdhs.gov; Office of Administrative Counsel and Rules - ADHS Subject: Re: 12 News Records Request: Covid-19 Data CAUTION - EXTERNAL EMAIL - Please use caution opening attachments and never share your password. Send suspicious email to infosec@tegna.com. Hi Katie, We received your request and are including our Office of Administrative Counsel and Rules who can identify responsive records and get back to you. Please direct COVID-19 media inquiries for the Arizona Department of Health Services to: Preferred Contact: pio@azdhs.gov Backup - Text to: 480.599.3784 Get the Facts: azhealth.gov/covid __________ Holly Poynter, MPH, CPH Public Information Officer Arizona Department of Health Services 150 N. 18th Avenue, Suite 310, Phoenix, AZ 85007 Email: holly.poynter@azdhs.gov Health and Wellness for all Arizonans https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 3/5 5/5/2020 State of Arizona Mail - RE: 12 News Records Request: Covid-19 Data On Tue, Apr 7, 2020 at 1:04 PM Wilcox, Katie wrote: To the custodian of records: My name is Katie Wilcox, I work for 12 News in Phoenix. Please consider the following an official request for public records under the Arizona Public Records Law § 39.101 et seq., I am requesting the following public records and information: Please provide a copy of the current data provided to the state health department by all testing laboratories including private laboratories, including but not limited to: occupation of the patients tested, zip code where patient lives, whether a patient is hospitalized, in ICU or has died Please provide any records indicating the number of healthcare workers tested for COVID-19, and the numbers of healthcare workers currently quarantined or on leave for COVID-19 related symptoms A copy of any directives to hospitals regarding PPE provided to healthcare workers A copy of any directives to hospitals regarding testing of healthcare workers All data related to COVID-19 hospitalizations and ICU admittance related to COVID-19 statewide Any data or reports related to the number of confirmed positive tests at skilled nursing facilities statewide Any data or reports on the number of inmates or corrections officers confirmed to have COVID-19 statewide Please confirm that this request has been received, and please provide responsive records in a reasonable time period. In the event that any of the records are exempt from disclosure, I ask that you segregate those portions that are not exempt from disclosure and release them to me. If some of this material will take longer to provide than other portions, please provide that information as soon as it is available, and please contact me with information regarding when I might expect copies or the ability to inspect the records. These records are requested as a matter of public interest, and not for commercial purposes. As a member of the news media, we are willing to pay a reasonable fee, and ask that you contact me with an estimate of any fees that may arise in fulfilling this request. If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law. If any portion of this request is unclear, please call me at 602-359-9014 or email me at kwilcox@12news.com Thank you, Katie Wilcox I-Team Executive Producer kwilcox@12news.com P:602.444.1301│ C:602.359-9014 200 E. VAN BUREN ST. PHOENIX, AZ 85004 https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 4/5 5/5/2020 State of Arizona Mail - RE: 12 News Records Request: Covid-19 Data CONFIDENTIALITY NOTICE: This e-mail is the property of the Arizona Department of Health Services and contains information that may be PRIVILEGED, CONFIDENTIAL, or otherwise exempt from disclosure by applicable law. It is intended only for the person(s) to whom it is addressed. If you have received this communication in error, please do not retain or distribute it. Please notify the sender immediately by e-mail at the address shown above and delete the original message. Thank you. -Office of Administrative Counsel and Rules Arizona Department of Health Services 150 N. 18th Ave., Suite 200, Phoenix, AZ 85007 Phone: 602.542.1020 Fax: 602.364.1150 Health and Wellness for all Arizonans CONFIDENTIALITY NOTICE: This e-mail is the property of the Arizona Department of Health Services and contains information that may be PRIVILEGED, CONFIDENTIAL, or otherwise exempt from disclosure by applicable law. It is intended only for the person(s) to whom it is addressed. If you have received this communication in error, please do not retain or distribute it. Please notify the sender immediately by e-mail at the address shown above and delete the original message. Thank you. https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 5/5 Exhibit 5/5/2020 State of Arizona Mail - Re: 12 News Records Request: Covid-19 Data Office of Administrative Counsel and Rules - ADHS Re: 12 News Records Request: Covid-19 Data 1 message Office of Administrative Counsel and Rules - ADHS Mon, May 4, 2020 at 4:25 PM To: "Wilcox, Katie" Cc: Holly Poynter , Chris Minnick Bcc: cmorgan@shermanhoward.com, Stephanie Elzenga , Stacie Gravito The Arizona Department of Health Services is finalizing its response to your April 7, 2020 public records request and anticipates having it to you tomorrow. Thank you. On Tue, Apr 7, 2020 at 1:57 PM Office of Administrative Counsel and Rules - ADHS wrote: The Arizona Department of Health Services is in receipt of your April 7, 2020 public records request. Please note that given ADHS' daily statutory health and safety related duties, including responding to the COVID-19 pandemic, it is currently unclear as to how long it will take to conduct the search for records, review any resulting records for confidentiality (see e.g.: A.R.S. 36-664, A.R.S. Title 36, Chapter 9, Article 6 and A.A.C. R9-1-303(D)), and ultimately fulfill your request. After responsive and releasable records (if any) are gathered and reviewed, we will supplement this initial response. Thank you. On Tue, Apr 7, 2020 at 1:45 PM Wilcox, Katie wrote: Thank you Holly, I will look out for all additional information, Katie Wilcox I-Team Executive Producer kwilcox@12news.com P:602.444.1301│ C:602.359-9014 200 E. VAN BUREN ST. PHOENIX, AZ 85004 From: Holly Poynter Sent: Tuesday, April 7, 2020 1:44 PM To: Wilcox, Katie Cc: pio@azdhs.gov; Office of Administrative Counsel and Rules - ADHS Subject: Re: 12 News Records Request: Covid-19 Data CAUTION - EXTERNAL EMAIL - Please use caution opening attachments and never share your password. Send suspicious email to infosec@tegna.com. Hi Katie, https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 1/4 5/5/2020 State of Arizona Mail - Re: 12 News Records Request: Covid-19 Data We received your request and are including our Office of Administrative Counsel and Rules who can identify responsive records and get back to you. Please direct COVID-19 media inquiries for the Arizona Department of Health Services to: Preferred Contact: pio@azdhs.gov Backup - Text to: 480.599.3784 Get the Facts: azhealth.gov/covid __________ Holly Poynter, MPH, CPH Public Information Officer Arizona Department of Health Services 150 N. 18th Avenue, Suite 310, Phoenix, AZ 85007 Email: holly.poynter@azdhs.gov Health and Wellness for all Arizonans On Tue, Apr 7, 2020 at 1:04 PM Wilcox, Katie wrote: To the custodian of records: My name is Katie Wilcox, I work for 12 News in Phoenix. Please consider the following an official request for public records under the Arizona Public Records Law § 39.101 et seq., I am requesting the following public records and information: Please provide a copy of the current data provided to the state health department by all testing laboratories including private laboratories, including but not limited to: occupation of the patients tested, zip code where patient lives, whether a patient is hospitalized, in ICU or has died Please provide any records indicating the number of healthcare workers tested for COVID-19, and the numbers of healthcare workers currently quarantined or on leave for COVID-19 related symptoms A copy of any directives to hospitals regarding PPE provided to healthcare workers A copy of any directives to hospitals regarding testing of healthcare workers All data related to COVID-19 hospitalizations and ICU admittance related to COVID-19 statewide Any data or reports related to the number of confirmed positive tests at skilled nursing facilities statewide Any data or reports on the number of inmates or corrections officers confirmed to have COVID-19 statewide Please confirm that this request has been received, and please provide responsive records in a reasonable time period. In the event that any of the records are exempt from disclosure, I ask that you segregate those portions that are not exempt from disclosure and release them to me. https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 2/4 5/5/2020 State of Arizona Mail - Re: 12 News Records Request: Covid-19 Data If some of this material will take longer to provide than other portions, please provide that information as soon as it is available, and please contact me with information regarding when I might expect copies or the ability to inspect the records. These records are requested as a matter of public interest, and not for commercial purposes. As a member of the news media, we are willing to pay a reasonable fee, and ask that you contact me with an estimate of any fees that may arise in fulfilling this request. If you deny any or all of this request, please cite each specific exemption you feel justifies the refusal to release the information and notify me of the appeal procedures available to me under the law. If any portion of this request is unclear, please call me at 602-359-9014 or email me at kwilcox@12news.com Thank you, Katie Wilcox I-Team Executive Producer kwilcox@12news.com P:602.444.1301│ C:602.359-9014 200 E. VAN BUREN ST. PHOENIX, AZ 85004 CONFIDENTIALITY NOTICE: This e-mail is the property of the Arizona Department of Health Services and contains information that may be PRIVILEGED, CONFIDENTIAL, or otherwise exempt from disclosure by applicable law. It is intended only for the person(s) to whom it is addressed. If you have received this communication in error, please do not retain or distribute it. Please notify the sender immediately by e-mail at the address shown above and delete the original message. Thank you. -Office of Administrative Counsel and Rules Arizona Department of Health Services 150 N. 18th Ave., Suite 200, Phoenix, AZ 85007 Phone: 602.542.1020 Fax: 602.364.1150 Health and Wellness for all Arizonans -Office of Administrative Counsel and Rules Arizona Department of Health Services 150 N. 18th Ave., Suite 200, Phoenix, AZ 85007 Phone: 602.542.1020 https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 3/4 5/5/2020 State of Arizona Mail - Re: 12 News Records Request: Covid-19 Data Fax: 602.364.1150 Health and Wellness for all Arizonans https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 4/4 Exhibit 5/5/2020 State of Arizona Mail - Response-April 7, 2020 Public Records Request Office of Administrative Counsel and Rules - ADHS Response-April 7, 2020 Public Records Request 1 message Office of Administrative Counsel and Rules - ADHS Tue, May 5, 2020 at 9:00 AM To: "Wilcox, Katie" Cc: Chris Minnick , Holly Poynter , gfalls@shermanhoward.com, cmorgan@shermanhoward.com Bcc: Colby Bower , Stephanie Elzenga , Stacie Gravito , Vanessa Gonzales Please see the attached response to your April 7, 2020 public records request. Thank you. -Office of Administrative Counsel and Rules Arizona Department of Health Services 150 N. 18th Ave., Suite 200, Phoenix, AZ 85007 Phone: 602.542.1020 Fax: 602.364.1150 Health and Wellness for all Arizonans 200505-Response (12 News).pdf 746K https://mail.google.com/mail/b/AL_L4G8rsoWnDDDhrRNCPedTXbl5VZ9OJcRtKI5NVfDbjd7oWkAG/u/0?ik=230cd90df7&view=pt&search=all&permthi… 1/1 ARIZONA DEPARTMENT OF HEALTH SERVICES -I PULICY a INTERGOVERNMENTAL AFFAIRS Sent Via. Electronic Mail May 5, 2020 Katie Wilcox, I?Team Executive Producer 12 News wi 1 211cws.com Re: Response-April 7, 2020 Public Records Request Dear Ms. Wilcox: On behalf of the Arizona Department of Health Services I am responding to your public records request, which is dated April 7, 2020 and was revised on April 22, 2020 (?Request?). In your Request you ask for: l. A copy of the current data provided to the state health department by all testing laboratories including private laboratories, including but not limited to: occupation of patients tested, zip code where patient lives, whether the patient is hospitalized, in ICU or has died; 2. Records indicating the number of healthcare workers tested for COVID-19, and the numbers of healthcare workers currently quarantined or on leave for related to 3. A copy of any directives to hospitals regarding PPE provided to healthcare workers; 4. A copy of any directives to hospitals regarding testing of healthcare workers; and 5. Any data or reports related to the number of con?rmed positive tests at skilled nursing facilities statewide, including the name of the nursing facility. With regard to item 1 of your Request, please note that all publically available and de-identi?ed data, statistics and reports may be reviewed and are constantly being updated at: With regard to item 2 of your Request, please note that ADHS does not have the requested information. With regard to items 3 and 4 of your Request, please see: I 9 .pdf; Douglas A. Ducey Governor Cara M. Christ, MD, MS Director 150 N. 18th Ave, Suite 200, Phoenix, AZ 85007?2670 602-5424 020 602?364?1 150 azhealthgov Health and Weilnessfor ail Arr?zonans Katie Wilcox, I?Team Executive Producer May 5, 2020 Page Two - contingency?guidancepdf; and - With regard to item 5 of your Request, while ADHS appreciates your request and shares your priority of transparency, we also have overarching legal and public health responsibilities, including a responsibility to protect the privacy of Arizonans? health-related data. For these reasons, and after consultation with its legal counsel, ADHS cannot ful?ll item 5 of your Request. Even if the information you seek in item 5 is a ?public record? under Arizona law--privacy, con?dentiality, safety, public health, the state?s general responsibility to protect all Arizonans, and other overriding interests outweigh any public interest in disclosure of the information requested. In addition, based on the following, ADHS believes fulfilling item 5 of your Request would constitute a violation of state law. A.R.S. states: person who obtains communicable disease related information in the course of providing a health service or obtains that information from a health care provider pursuant to an authorization shall not disclose or be compelled to disclose that information except as authorized by state or federal law. . (Emphasis added). See also A.R.S. (14), (21), and (it is a class 3 misdemeanor to disclose communicable disease related information in violation of A.R.S. Title 36, Chapter 6, Article 4). Further, A.R.S. states: ?Any medical information or other information from which a person might be identified that is received by the department or local health authority in the course of an enhanced surveillance advisory is con?dential and is not available to the public.? (Emphasis added). See also A.R.S. These laws are supported by the Arizona Constitution, Article 2, Section 8, which states, ?No person shall be disturbed in his private affairs without authority of law.? In addition to not complying with state laws, the release of an individual?s home address may have a chilling effect on reporting and ability to control outbreaks of communicable diseases. Public health relies on our partners, including our licensed congregate settings, to report communicable diseases accurately and timely in order to prevent further illness and death. The Arizona Administrative Code supports the foregoing legal interpretation. A.A.C. R9?l 601(7) and ?3 require ADHS to ?ensure that public health records disclosed pursuant to a public records request are de- identified? pursuant to 45 C.F.R. Douglas A. Ducey Governor Cara M. Christ, MD. MS Director 150 N. 18th Ave, Suite 200, Phoenix, AZ 85007?2670 602-542-1020 602?364-1150 azhealthgov Health and Wellness for all Arizonans Katie Wilcox, I?Team Executive Producer May 5, 2020 Page Three For these reasons, among others, ADHS cannot disclose the information requested. That said, currently available de?identified data may be reviewed at: gov/ preparedness! epidemioio gv-disease-conti'ol/ i i?eclio us-d iscasc? and information related to health and safety de?ciencies at ADHS licensed facilities may be reviewed by conducting a facility search at: Sincerely, 5} obeitLane, Administrative Counsel Division of Policy and Intergovernmental Affairs, Administrative Counsel and Rules CC: Chris Minnick and Holly Poynter, Arizona Department of Health Services Greg Falls and Craig Morgan, Sherman and Howard Douglas A. Ducey Governor Cara M. Christ, MD, MS Director 150 N. 18th Ave, Suite 200. Phoenix, AZ 85007?2670 602-542-1020 I 602?364?1150 azhealthgov Health and Wellness for all Arizonans