STATE OF NORTH CAROLINA I, I .- I- IN THE GENERAL COURT OF JUSTICE WAKE COUNTY SUPERIOR COURT DIVISION El 20 CVS THE NEWS AND OBSERVER 1?1. . PUBLISHING COMPANY d/b/a THE NEWS GRAY MEDI - GROUP, INC. d/b/a WBTV and WEC CAPITOL BROADCASTING COMPANY, INCORPORATED d/bla CAROLINA PUBLIC THE CHARLOTTE OBSERVER PUBLISHING COMPANY d/b/a THE CHARLOTTE WUNC, GANNETT CO., THE PILOT, THE NEW YORK TIMES THE ASSOCIATED WTVD TELEVISION, LLC d/b/a NORTH CAROLINA HEALTH NEWS, NORTH CAROLINA JUSTICE CENTER d/b/a NC POLICY THE WILSON and NEXSTAR MEDIA GROUP, INC. d/b/a WNCN CBS 17, VERIFIED COMPLAINT AND REQUEST FOR MEDIATION PURSUANT TO N.C. GEN. STAT. 7A-38.3E Plaintiffs, v. ROY COOPER, in his capacity as Governor of the State of North Carolina; ERIK A. HOOKS, in his capacity as Secretary of the North Carolina Department of Public Safety; and MANDY K. COHEN, MD. in her capacity as Secretary of the North Carolina Department of Health and Human Services, Defendants. I Pursuant to Rules 3, 7, and 8 of the North Carolina Rules of Civil Procedure the plaintiff, complaining of the defendants, alleges and says the following: I This action is pursuant to the North Carolina Public Records Law, contained in Chapter 132 of the General Statutes. As described more speci?cally in the numbered allegations set out below. plaintiffs seek: (1) a preliminary order compelling defendants to appear and bring before the court the records that are the subject matter of this action; (2) an order compelling the defendants to permit the inspection and copying of public records pursuant to N.C. sen. STAT. 132-9(a) and otherwise; . (3) an order in the nature of a writ of mandamus requiring the defendants to comply with the Public Records Law including, but not limited to. N.C. can. STAT. and (4) an order, pursuant to N.C. can. STAT. awarding plaintiff reasonable attorneys? fees. to be charged against the operating expenses of the responsible agency or to be paid personally by any public employee or public of?cial found by the court to have knowingly or intentionally committed, caused, permitted, subomed. or participated in a violation of the Public Records Law. The Plaintiffs 1. The News and Observer Publishing Company is a North Carolina corporation that maintains its principal place of business in Raleigh. Wake County, North Carolina. Among other things. the company publishes The News Observer, a general interest newspaper that is published in Wake County and distributed throughout the surrounding area of North Carolina. The News Observer also publishes an online edition at 2. Gray Media Group, inc. d/b/a WBTV and WECT (?Gray Media?) is a Delaware corporation that is authorized by the North Carolina Secretary of State to do business within the state and whose principal place of business is located in Charlotte. Mecklenburg County, North Carolina. WBTV covers news in Greater Charlotte and the surrounding areas of North Carolina 2 and South Carolina, and state-wide issues throughout North Carolina. WBTV also disseminates online coverage at WECT covers news in and around Wilmington. North Carolina, including New Hanover. Brunswick, Ponder, Bladen and Columbus counties and into Horry County. South Carolina. WECT also disseminates online coverage at 3. Capitol Broadcasting Company, Incorporated is a North Carolina corporation whose principal place of business is located in Raleigh. Wake County, North Carolina. Capitol Broadcasting is a diversi?ed communications company which. among other things, owns and operates ?ve television stations in North Carolina. including WRAL-TV in Raleigh which covers news in the Research Triangle and surrounding areas of Piedmont and Eastern North Carolina, including Wake County and its surrounds. 4. Carolina Public Press is an independent not-for-profit news organization dedicated to nonpartisan. in-depth and investigative news built upon the facts and context North Carolinians need to know. Founded in 2011 and originally established to focus on the issues. topics and challenges faced by Western North Carolina, the organization now covers all of North Carolina. CPP provides nonpartisan reporting on important issues facing North Carolina communities. 5. The Charlotte Observer Publishing Company (the ?Charlotte Observer") is a Delaware corporation that maintains its principal place of business in Mecklenburg County. North Carolina. Among other things, the company publishes The Charlotte Observer. a general interest newspaper that is published in Mecklenburg County and distributed throughout the surrounding areas of North Carolina and South Carolina. The Observer also publishes news online at 6. WUNC, LLC. is a North Carolina not-for-pro?t corporation located in Orange County. WUNC operates North Carolina Public Radio, an affiliate of National Public Radio. at 91.5 FM from Chapel Hill; at 88.9 FM from Manteo; at 91.9 from Fayetteville; at 91.1 from Welcome; and at 90.9 PM from Rocky Mount. The station, which also streams online 24 hours a 3 day, provides extensive national and local news coverage. including information about courts throughout North Carolina. 7. Gannett Co.. Inc., parent company of Asheville Citizen Times. Wilmington StarNews. Fayetteville Observer and nine other daily newspapers in North Carolina, is an innovative, digitally focused media and marketing solutions company committed to strengthening communities across our network. Gannett touches the lives of nearly 140 million people with our Pulitzer-Prize winning content. consumer experiences and bene?ts. and advertiser products and services. Gannett brands include the USA TODAY and more than 260 daily local newspapers. To connect with us. visit 8. The Pilot LLC is a North Carolina limited liability company that maintains its principal place of business in Southem Pines. Moore County. North Carolina. Among other things, the company publishes The Pilot, a 100-year-old twice-weekly general-interest newspaper printed and distn?buted throughout Moore County. The company also publishes an online edition at 9. The New York Times Company is the publisher of The New York Times and The International New York Times and operates the news websites nytimes.com and related properties. 10. The Associated Press is a news cooperative organized under the Not-for- Pro?t Corporation Law of New York. with more than 1,300 U.S. newspaper members. The AP's members and subscribers include the nation?s newspapers, magazines, broadcasters. cable news services and lntemet content providers. On any given day, AP's content can reach more than half of the world?s population. AP has no parents, subsidiaries or af?liates that have any outstanding securities in the hands of the public. The North Carolina bureau regularly covers news of interest in all 100 counties of North Carolina, including news about state government and public policy. 11. WTVD Television, LLC is a Delaware corporation with its principal place of business in Durham, North Carolina. it owns and operates the television station WTVD ABC 11 in Raleigh-Durham, North Carolina. WTVD gathers and disseminates news to the public, serving a twenty-three county viewing area in central and eastern North Carolina and disseminates its news coverage online at 12. North Carolina Health News, Inc. is an independent not-for-profit news organization dedicated to covering health care in North Carolina employing the highest journalistic standards of fairness, accuracy and extensive research. It was founded in 2011 pursuant to the belief that to make the best decisions about their health care and about the state's health care system. the citizens of North Carolina need the best information possible. 13. The North Carolina Justice Center (?Justice Center?) is a 501(c) not-for-pro?t North Carolina organization located in Raleigh, North Carolina. NC Policy Watch. which is a project of the Justice Center, is a news and commentary outlet dedicated to informing the public, including elected of?cials as they debate important issues, and to improving the quality of life for all North Carolinians. NC Policy Watch is published online at 14. The Wilson Times is a ?fth-generation family-owned newspaper based in Wilson, North Carolina. providing daily coverage of local news through its print and online editions. Founded in 1896, the Times serves as the newspaper of record for Wilson County. 15. WNCN-TV is owned and operated by Nexstar Broadcasting, Inc located at 545 E. John Carpenter Freeway Suite 700, Irving, TX 75062. The Federal Communications Commission Community of License is Goldsboro, North Carolina. with principal place of business located at 1205 Front St, Raleigh, North Carolina 27609. WNCN, licensed to Virtual Channel 17, covers news in the Raleigh. Durham. and Fayetteville areas and its surrounds. WNCN also disseminates its news coverage online at The Defendants 5 16. Roy Cooper is the duly elected and serving governor of the State of North Carolina and is sued in that of?cial capacity. As the Governor, defendant Cooper is a public agency of the North Carolina government as de?ned by NC. GEN. STAT. 132- 1(a) and is custodian of records that are public under Public Records Law. 17. Erik A. Hooks was duly appointed by defendant Cooper and unanimously con?rmed by the North Carolina Senate to serve as Secretary of the Department of Public Safety and is sued in that of?cial capacity. As Secretary of the DPS, defendant Hooks oversees North Carolina's Department of Emergency Management and is an ?agency of North Carolina government? as de?ned by NC. GEN. STAT. 132-l(a) and is the custodian of records that are public under the Public Records Act. N.C. GEN. STAT. 132-2. website lists 14 staffers in its Communications Of?ce. 18. Mandy K. Cohen, MD. was duly appointed by defendant Cooper and unanimously con?rmed by the North Carolina Senate to serve as Secretary of the North Carolina Department of Health and Human Services and is sued in that of?cial capacity. As Secretary of DHHS, defendant Cohen is an ?agency of North Carolina government? as de?ned by NC. GEN. STAT. 132-l(a) and is the custodian of records that are public under the Public Records Act. N.C. GEN. STAT. 132-2. Upon information and belief, DHHS has more than 15 staffers in its Of?ce of Communications. Jurisdiction, Venue and Conditions Precedent 19. This Court has subject matter jurisdiction over the issues raised herein pursuant to NC GEN. STAT. 132-9 and othenlvise. 20. This Court has personal jurisdiction over all the parties pursuant to NC. GEN. STAT. 21. Venue for this action is proper in the Superior Court of Wake County pursuant to NC. GEN. STAT. 1-77 and 1-82. 22. The North Carolina General Assembly has waived sovereign immunity for plaintiffs? claims by enactment of the North Carolina Public Records Law and othenlvise. 23. Plaintiffs respectfully request the initiation of mediation of this dispute pursuant to NC. GEN. STAT. 7A-38.3E. Accord, Tillett v. Town of Kill Devil Hills, 89 145 (2017). North Carolina Law 24. The North Carolina Public Records Law (?the Public Records Law?) is codi?ed at No. GEN. STAT. 132-1 through 132-11. The public policy underlying the Public Records Law is set out in NC. GEN. STAT. which provides: The public records and public information compiled by the agencies of North Carolina government or its subdivisions are the property of the people. Therefore, it is the policy of this State that the people may obtain copies of their public records and public information free or at minimal cost unless otherwise speci?cally provided bylaw. As used herein, ?minimal cost' shall mean the actual cost of reproducing the public record or public information. 25. The Public Records Law provides that public records are de?ned as: all documents, papers, letters, maps, books, photographs, ?lms, sound recordings, magnetic or other tapes, electronic data-processing records, artifacts, or other documentary material, regardless of physical form or characteristics, made or received pursuant to law or ordinance in connection with the transaction of public business by any agency of North Carolina government or its subdivisions. N.c. GEN. STAT. 132-1 (emphasis supplied) 26. The Public Records Law further provides that ?Every custodian of public records shall permit any record in the custodian's custody to be inspected and examined at reasonable times and under reasonable supervision by any person, and shall, as as possible, furnish copies thereof upon payment of any fees as may be prescribed by law.? No. GEN. STAT. 27. By statute, and as applied by North Carolina's appellate courts at least nine times, only Speci?c statutory exemptions from the Public Records Law can authorize the withholding of documents that otherwise meet the de?nition of public records. N.C. GEN. STAT. ?132-1. Accord, News Observer Pub. Co. v. Poole, 330 NC. 465, 486, 412 7, 19 7 (1992) 28. North Carolina?s appellate courts have held no fewer than 22 times that in considering requests for public access, the right of access is to be liberally construed and exemptions narrowly construed. 29. The failure to provide access ?to or copies of public records ?as as possible? upon request pursuant to N.C. GEN. STAT. 132-6(a) is tantamount to denial. History and Background 30. North Carolina, like the rest of the world. has struggled to understand and respond to the global pandemic and the novel coronavlrus which cause Information from multiple and varying sources has been varied, inconsistent and incomplete. 31. From the outset, the portions of our population thought to be at highest risk for susceptibility and most negative consequences of are our elderly populations and those already af?icted with chronic medical issues. 32. Not surprisingly, the con?uence of high susceptibility and congregate living arrangements (nursing homes, residential care facilities. correctional facilities, etc.) appears to warrant magni?ed concern and attention. 33. As of 28 May 2020. North Carolina's Department of Health and Human Services was reporting 17 ongoing outbreaks in correctional facilities in North Carolina (federal and state prisons, local jails) in 15 of North Carolina?s 100 counties including 1,181 cases and deaths 16 COVlD-19-related deaths. See setti gs. 34. As of 26 May 2020, North Carolina's Department of Health and Human Services was reporting 83 ongoing outbreaks in congregate living settings in 45 of North Carolina's 100 counties including 3,577 cases and 480 COVlD-19-related deaths. See les/covid-1 35. Plaintiffs, on behalf of themselves and the coalition, have made the following public records requests on DPS seeking records containing information about these outbreaks and other public information: 17 March 2020 Any email sent by Will Polk to members of Pamela.Walker Acknowledged ?rst the Council of State on March 17. 2020. production of responsive records Any response to the above-referenced Will.Polk@ncd email. Egov 7 April 2020 All resource requests submitted to Acknowledged partial related to dps.gov production unful?lled. 19. All ?significant events? and "general announcements? posted to related to COVID- 19. 10 April 2020 index of forms, also called a system of john.bull@ncdp Acknowledged (4/13) John Bull: records, for DPS. s.gov "Jordan, You asked these questions on a state holiday, last Friday. I have asked someone who is only substantially buried to look into it. I don't have answers for you yet. I likely will take some time?: further response (5I19) "Hi Jordan. DPS does not have an ?index of forms" or a ?systems of records? as you described; unfulfilled. 4 May 2020 Emails between UNC doctors and DPS john.buli@ncdp Acknowledged John Bull: "l staff 0" key dates. S-QOV have received your amended lnforrnation request. Please be aware that the ful?llment of your request may be delayed due to the unprecedented workload associated with ensuring the health, safety and security of staff members and individuals who are incarcerated during this time of pandemic"; unful?lled. 7 May 2020 Request for records on prison inspections john.buli@ncdp Acknowledged (5113) John Bull: Since April 1- S-QOV ?information pertaining to security plans. patterns or practices in prisons is not a public record under N.C. Gen. Stat. 132 132-1.7. Sensitive public security information. (a1) Public records, as de?ned in 6.8. 132-1. shall not include specific security information or detailed plans, patterns, or practices associated with prison operations. (previous response on 5/11 did not list statutory reasons for denying records)?; Denied. 13 May 2020 Records re?ecting: Pamela.walker Acknowledged unful?lled. - The location (correctional facility - released from), charges and names of the covid190ffende inmates who quali?ed to be placed on ELC. ov - - The number of inmates granted early release since March 1, 2020. . if possible, could you also make available the names, charges and facility linked to each inmate granted early release. . Statistics on how many inmates were released due to underlying health conditions, pregnancy or who are at high- risk for the virus. (For example 20% were pregnant, 10% labelled as high risk, etc.) . The number of non-violent juveniles who have been released from detention while awaitinggial since March 1, 2020. 18 May 2020 Any record of communication-4ncluding john.bull@ncdp Acknowledged On 5/22, in but not limited to text messages, emails. s.gov part: "We have pulled the initial instant messages, letters. and memos? email batches between each of the sent or received by Doris Daye, Pam seven parties you requested Cashwell. Todd lshee, and/or Tim Moose between March 12. 2020 and April since April 1, 2020 regarding any of the 30. 2020 resulting in more than following topics: 900 emails which must now be 1) Testing for employees as Caswell reviewed to determine if all the Correctional Center information contained in them is 2) cases at Caswell public." Asked for search terms to Correctional Center limit the results. 3) Transfer of inmates from Caswell Correctional Center On 5/28, in part: "Thanks for your 4) Barbara Stewart follow up. Let?s try using the search terms ?staff illness,? and "inmate death" on the results so far and see if that reduces the number of emails. Sound good? If that doesn?t reduce it signi?cantly. then you can give me search terms for the individual dates.? I requested some modi?cations and expansions to the search to capture staff death/hospitalization, inmate illness/hospitalization. and the use of offender as interchangable with inmate?; unful?lled. 22 May 2020 Copy of PRA log since March 1 2020 susan.m.smith No response; unful?lled. Pamela.Walker 27 May 2020 1. All DCR-1A death in custody forms margaret.ekam Acknowledged unful?lled. submitted to the Governor's Crime Commission either by mail or email (as described on the DPS website) since March 1. 2020. 2. All DC-135 Notice of Inmate Death reports since March 1, 2020. 3. All annual death in custody reports sent to the Bureau of Justice Statistics (BJS) since 2015. 4. All death in custody reports sent to the BJS or reported to any federal agency since March 1, 2020. 5. All incident reports associated with any 10 deaths in custody since March 1, 2020. 6. Blank copies of Investigator Cover Sheet. Incident, DC-135. DC-1383, D0- 230, and Inmate Death reports, in addition to blank versions of any further documentation required in the case of inmate death. 36. Plaintiffs, on behalf of themselves and the coalition, have made the following public records requests on DHHS seeking records containing information about these outbreaks and other public information: Fall 2019 - Copies of any regular reports, emily.kirby@dh Acknowledged (12/20/19); summaries, calculations of percentages of hs.no.gov; unful?lled. total provider sign-ups for Medicaid public.records managed care created by or received by @dhhs.nc.gov DHHS from 10/15/19 to 12/19/2019. . Copies of any and all communications sent or received by the following individuals with the key words ?Medicaid," ?managed care.? ?delay,? "suspend" suspension,? ?Medicaid managed care,? ?transformation? or ?budget? from 11/1/19 to present. This request includes emails, text messages and communications that may be contained in other platforms (Twitter DMs, any internal messaging systems that may exist, communications of private email addresses that involve conducting public business, etc). The individuals are Sec. Mandy Cohen, Medicaid Director Dave Richard, Dep. Secs. Susan Perry, Kody Kinsley. Ben Money, Mark Benton, Matt Gross, Walker Wilson and Shannon Dowler. If a communication with one of those key words is in a thread of various communications, I would request the entire thread be provided. 0 There is no need to provide access to duplicates (if several of the mentioned individuals are on the same email thread, for example). 0 There is no need to include fowvards of news articles or newsletters these individuals receive UNLESS there is some type of original comment included on the communication (an example would be if a news article is forwarded to a group, and one individual makes a comment speci?c to Medicaid managed care. I would like that, but I do not need copies of the Insider. or N.C. Health News articles, that these individuals receive in the regular course of business, for example) - Any and all communication between the 11 above individuals Sec. Mandy Cohen, Medicaid Director Dave Richard, Dep. Sees Susan Perry, Kody Kinsley, Ben Money, Mark Benton, Matt Gross, Walker Wilson and Shannon Dowler. and the govemor?s of?ce and legislative leaders (of?ces of State Sen. Phil Berger, State Rep Tim Moore, state sen. Ralph Hise, state Rep, Donny Lambeth and state Rep. Josh Dobson), Any and all communications between representatives of Maximus and DHHS representatives regarding the enrollment portal, 9/1/19 to present, and including any and all status reports, or reports regarding issues with the portal. 20 March 2020 Any and all databases tracking the news@dhhs.nc Charles Epstein on 3/30: sampling and/or testing of patients .gov; Betsey ?Tyler, suspected of having contracted novel Tilson; Hope you are well. I apologize for coronavirus and all PUI public.records not responding back earlier. We forms, anonymized @dhhs.nc.gov; have been quite busy the past charles.epstein month and have received a very @dhhs.nc.gov large volume of requests. I want to assure you that we have not forgotten about your request, and I hope to provide you with a more detailed update soon. Thank you,? Charles Epstein on 4/7: "Tyler, We are still working on this request and are hoping to have a portion ready for you this week. Thank you," Charles Epstein on 4110: ?Good afternoon, Tyler. I am contacting you in reference to your public records request #2020032002 to the North Carolina Department of Health and Human Services. Attached, please ?nd the public records staff identi?ed as responsive to your request for 'any and all data dictionaries and/or ?eld layouts.? Your additional requests for 'any and all databases tracking the sampling and/or testing of patients suspected of having contracted novel coronavirus and ?any and all ?Human Infection with 2019 Novel Coronavirus Person Under Investigation (PUI) and Case Report Forms" collected by your agency,? are for con?dential health information that is protected under North Carolina General Statute 130A. Dr. Betsy Tilson elaborates on this issue further in the attached letter that 12 she sent to Mike Tadych last week. We would encourage you to examine the updated Dashboard website case-count) for publicly available information. If you disagree with our assessment and still believe you are legally entitled to the records you requested. please do not hesitate to let us know. To help us resolve your oonoems and improve the way we serve you, please include the reason(s) you disagree with our determination along with the speci?c legal authority supportive of your view(s). and we will share your concerns with appropriate staff for additional consideration. if there is any change in our position. we will be update you as as possible. Thank you for your public records request to NC DHHS. Please contact us if we can help you further." [Tilson letter. Blank sample form and data dictionary attached]; Iggy unful?lled. 24 March 2020 Copies of any memos. reports or other news@dhhs.nc Acknowledged unful?lled. written material discussing possible .gov changes to the emergency-preparedness regulations for adult care homes since Jan. 1, 2019. 26 March 2020 Copies of all written noti?cations sent to news@dhhs.nc Acknowledged denied the CMS R0 regarding a presumptive or .gov multiple times. con?rmed positive test for invoivinga nursing home resident. 7 April 2020 Copies of: news@dhhs.nc Acknowledged (417); said DHHS 1. The actual cost reports submitted by .gov doesn?t do reviews of county DSS Pine Forest Rest Home in Woodland of?ces, but the rest of the requests since Jan. 1, 2016; 2. All DHSR reviews would be processed; unful?lled. of the Northampton DSS since Jan. 1, 2017; 3. All correspondence to/from DHSR relating to Pine Forest Rest Horne since March 14, 2020. 10 April 2020 Copies of Nurse Aide 1 registry. news@dhhs.nc Acknowledged unful?lled. .gov 10 April 2020 Copies of: news@dhhs.nc Acknowledged further 1. All emails to and from Mandy Cohen that include the keyword ?covid" or "coronavirus" since Jan. 1, including any attachments to those emails; 2. All emails to and from Megan Lamphere that include the keyword 'covid" or "coronavirus" since Jan. 1, including any attachments to those emails; 3. All emails to and from Becky Wertz that include the keyword 'covid" or ?coronavirus" since Jan. 1, including any .gov response (5/21) "working on it;? unful?lled. 13 attachments to those emails. 12 April 2020 Copies of any documents (databases. email. memo, text message. or other communication) that contain the name of any congregate care facility in North Carolina at which a resident has been identi?ed as COVlD-positive. if, rather than provide public records it is easier to simply provide the names of such facilities viw??hat is ?ne. public.records @dhhs.nc.gov Acknowledged unful?lled. 21 April 2020 Copies of records showing: -The total number of patients who have been or currently are in the ICU. -The total number of COVID-19 patients on ventilators. -The number of patients hospitalized each day between March 3. 2020 and present. -Any and all underlying data, documents or records that is used to update the North Carolina Dashboard, found at this web address: including but not limited to: -Data. documents or records showing the number of positive tests in each county -Data, documents or records re?ecting demographics of those who have tested positive for -Data, documents or records re?ecting the dates of when specimens for 19 tests were collected -Data. documents or records that show the number of inpatient hospital beds and ventilators at each hospital overtime (every day from March 1 to present). -Records that re?ect which hospitals are reporting COVID-19-related information to the department OR data that the department is publishing on it's dashboard. -Records that re?ect which laboratories are reporting both negative and positive tests to the department -Data, documents or records re?ecting PPE requested and received from the Strategic National Stockpile overtime (every day from March 1 to present) -Data, documents or records re?ecting positive cases, related deaths and outbreaks in congregate living settings reported to the department. Kelly.Haight@d hhs.nc.gov. Amy.Ellis@dhh s.nc.gov Acknowledged (4/21 unful?lled. 20 April 2020 Copies of records that show which long term care facilities have outbreaks news@dhhs.nc .gov Acknowledged denied unful?lled. 27 April 2020 Copy of guidance to counties regarding withholding names of nursing homes. etc. public.records @dhhs.nc.gov Acknowledged response to request for update 14 unful?lled. 28 April 2020 Records re?ecting the number of positive Peel, cases at the Wilson County SarahLewis Smith?eld facility. . ?Ellis, Amy' to request the number of COVID-19 virus Staff has been in communication detection tests performed in each North with DPH, and they have infomed Carolina zip code for which data is us that DPH neither receives nor available. If data are incomplete due to maintains test results laboratories not reporting to NC EDSS. I broken down by zip code. would like to request the NC State Therefore, we have been unable to Laboratory of Public Health and/or county locate any records responsive to health department tests reported in NC your request. EDSS for each North Carolina zip code. Again. we thank you for your request and your patience, and consider this request closed unful?lled. 37. Plaintiffs are not seeking con?dential information or records. Plaintiffs have not requested any information about speci?c individuals or patients. Rather, plaintiffs have requested records re?ecting only aggregated, non-patient information. 38. sought cannot be reconciled with North Carolina law. 15 Further, NC blanket refusal to produce records containing the information 39. The UNC School of Government con?rms that. ?[bloth HIPAA and the state CD con?dentiality law allow disclosure of communicable disease information that doesn?t identify individuals.? diseases/ 40. HIPAA has no role vis-a-vis non-covered entities. and even covered entities must disclose information if state law so provides. 45 CFR If a state agency is not a ?covered entity?. as that term is de?ned at 45 CFR 160.103. it is not required to comply with the HIPAA Privacy Rule and. thus, any disclosure of information by the state agency pursuant to its state public records law would not be subject to the Privacy Rule. If a state agency is a covered entity. however, the Privacy Rule applies to its disclosures of protected health information. The Privacy Rule permits a covered entity to use and disclose protected health information as required by other law, including state law. See 45 CFR Thus. where a state public records law mandates that a covered entity disclose protected health information, the covered entity is permitted by the Privacy Rule to make the disctosure, provided the disclosure complies with and is limited to the relevant requirements of the public records law. 41. Moreover, the federal regulations' definition of individually identi?able health information makes clear that the information plaintiffs seek is not con?dential: Individually identi?able health information is information collected from an individual that (1) is created or received by a health care provider. health plan. employer, or health care clearinghouse; and (2) relates to the past, present, or future physical or mental health or condition of an individual: the provision of health care to an individual; or the past, present. or future payment for the provision of health care to an individual; and that identi?es the individual; or (ii) with respect to which there is a reasonable basis to believe the information can be used to identify the individual. 45 C.F.R. 160.103. 47. The information plaintiffs have requested does not implicate individually identi?able health information, and North Carolina's law therefore compels its disclosure upon request. 16 48. Additionally, both North Carolina's statute on the general con?dentiality of medical information and the speci?c statute regarding communicable diseases speak to the con?dentiality of individual information. All records containing privileged patient medical information, information protected under 45 Code of Federal Regulations Parts 160 and 164, and information collected under the authority of Part 4 of Article 5 of this Chapter that are in the possession of the Department of Health and Human Services or local health departments shall be con?dential and shall not be public records pursuant to 6.3. 132-1. N.C. GEN. STAT. 130A-12 (emphasis supplied). 49. The incorporation of 45 C.F.R. 160 into the state law provides clarity that non- patient-speci?c information is not con?dential. The same parameters exist in the communicable disease statute. All information and records, whether publicly or privately maintained, that identify a person who has AIDS virus infection or who has or may have a disease or condition required to be reported pursuant to the provisions of this Article shall be strictly con?dential. N.C. GEN. STAT. 13OA-143 (emphasis supplied). 50. Plaintiffs have asked for, among other things, the identity of facilities with COVID- 19 outbreaks, not of individuals. 51. For the same reasons, plaintiffs are informed and believe that the defendants are knowingly and intentionally violating the Public Records Law. 52. Defendants' failure to provide the requested records ?as as possible? is tantamount to a denial of plaintiffs? requests. WHEREFORE, plaintiffs respectfully pray the court: 1. Accord this matter priority and set it down for an immediate hearing pursuant to NC. GEN. STAT. 2. Enter a preliminary order requiring the defendants to bring the requested records before the court for in camera review and show cause, if any, why the plaintiffs are not entitled to obtain the requested records; 17 3. Enter an order declaring the requested records are public records pursuant to the Public Records Law and requiring the defendants to provide plaintiffs with copies of the same or electronic access to databases and public data, where available, immediately; 4. Enter an order requiring defendants provide plaintiffs with prompt access to a comparable information, records and data requested in the future and in any event no more than ten (10) days after a request is made unless there is a speci?c statutory exemption from disclosure which defendants shall identify to plaintiffs within that time period; 5. Enter an order awarding plaintiffs their reasonable attorney fees pursuant to N.C. GEN. STAT. and 6. Provide plaintiffs with such further and additional relief as the court shall deem just, proper and authorized by law, and that the costs of this action be taxed against the defendants. 18 Respectfully submitted this the 28" day of May. 2020. swarms mm VAUGHN a. move?. PLLC .. r? . MO. State Bar No. 245 C. Amanda Martin MO. State Bar No. 21186 Hugh Stevens NC. State Bar No. 4158 1101 Haynes Street, Suite 100 Raleigh. NC 27604 919.582.2300 866-593-7695 toll free facsimile Attorneys for Plaintiffs 19 VERIFICATION OF COMPLAINT The undersigned Nicholas A. Ochsner, af?rming under the penalties for perjury, that he has read the foregoing Complaint and that the allegations of fact made therein are true of his own knowledge, except as to the matters alleged upon information and belief, which allegations he is informed and believes to be true. This 28?? day of May, 2020. Signature: Mar?a Printed Name: @3295 A - gnaw? 20