Clerk of the Superior Court *** Electronically Filed *** 06/01/2020 8:00 AM SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 CLERK OF THE COURT L. Stogsdill Deputy HONORABLE CHRISTOPHER COURY PHOENIX NEWSPAPERS INC, et al. DAVID JEREMY BODNEY v. ARIZONA DEPARTMENT OF HEALTH SERVICES, et al. GREGORY W FALLS CRAIG A MORGAN BRIAN M BERGIN UNDER ADVISEMENT RULING The Court has reviewed and considered the following: A. Plaintiffs’ Complaint for Statutory Special Action to Secure Right to Inspect and Copy Public Records, filed May 5, 2020; B. Plaintiff News Organizations’ Application for Order to Show Cause and Supporting Memorandum of Law, filed May 5, 2020, together with all exhibits attached thereto; C. Defendants’ Objection to Plaintiffs’ Application for Order to Show Cause, filed May 15, 2020, together with all exhibits attached thereto; D. Defendants’ Objection to Plaintiff Meredith Corporation’s Application for Order to Show Cause, filed May 15, 2020; Docket Code 926 Form V000A Page 1 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 E. Defendants’ Notice of Filing Declaration of Colby Bower in Support of Defendants’ Objection to Plaintiffs’ Application for Order to Show Cause, filed May 15, 2020, together with all exhibits attached thereto; F. Defendants’ Notice of Filing Declaration of Steven Robert Bailey in Support of Defendants’ Objection to Plaintiffs’ Application for Order to Show Cause, filed May 15, 2020, together with all exhibits attached thereto; G. Defendants’ Notice of Filing Declaration of Kenneth Komatsu in Support of Defendants’ Objection to Plaintiffs’ Application for Order to Show Cause, filed May 15, 2020; H. Defendants’ Notice of Filing Declaration of Colby Bower in Support of Defendants’ Objection to Plaintiff Meredith Corporation’s Application for Order to Show Cause, filed May 15, 2020, together with all exhibits attached thereto; I. Plaintiff News Organizations’ Reply in Support of Application for Order to Show Cause and Supporting Memorandum of Law, filed May 21, 2020, together with all exhibits attached thereto; J. Plaintiffs’ Notice of Filing Declarations in Support of News Organizations’ Reply in Support of Their Application for Order to Show Cause, filed May 21, 2020; K. Defendants’ Notice of Filing Supplemental Authority: Executive Order 2020-37, filed May 26, 2020;1 L. Plaintiffs’ Notice of Lodging Proposed Order, filed May 27, 2020; M. Plaintiff News Organizations’ Response to Defendants’ Notice of Filing Supplemental Authority, filed May 28, 2020; 1 Following the May 27, 2020 oral argument, there has been briefing relating to EXECUTIVE ORDER 2020-37. This decision does not adjudicate the parties’ respective rights pursuant to EXECUTIVE ORDER 2020-37. All parties are entitled to due process with respect to EXECUTIVE ORDER 2020-37. Additionally, as the following analysis demonstrates, the conclusions reached in this ruling do not depend on any new directives in EXECUTIVE ORDER 202037. Docket Code 926 Form V000A Page 2 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 N. Defendants’ Reply Objecting to News Organizations’ Response To Notice of Filing of Supplemental Authority: Executive Order 2020-37, filed May 29, 2020; O. Plaintiff News Organizations’ Response to Defendants’ Objections To Their Response to Defendants’ Notice of Filing of Supplemental Authority, filed May 29, 2020; and P. The arguments and authorities raised during the oral argument held on May 27, 2020. POSTURE OF THE CASE AND PROCEDURAL HISTORY Various news organizations (collectively “Plaintiffs”) submitted multiple public records requests to Defendant Arizona Department of Health Services (“ADHS”).2 Plaintiffs sought disclosure of information received by ADHS relating to the prevalence and treatment of Covid-19 in Arizona nursing homes, retirement homes, and long term care facilities (each a “Facility”). Defendants declined to produce any requested information. On May 5, 2020, Plaintiffs filed this special action to compel production of responsive public records. Plaintiffs requested an Order from this Court requiring Defendants to Show Cause as to why the relief requested by Plaintiffs should not be granted. An Order to Show Cause return hearing was held one day later, on May 6, 2020. The Court set an expedited briefing schedule, and scheduled oral argument for May 27, 2020.3 Defendants were allowed to delay the preparation of their Answer until after the oral argument. Following the May 27, 2020 oral argument, the Court took this matter under advisement and indicated that a written ruling would follow. This is that ruling. The Director of ADHS, Dr. Cara Christ (“Dr. Christ”), has been named as a Defendant in her official capacity only. Dr. Christ and ADHS shall be referred to collectively as “Defendants” from time to time in this ruling. 2 During the hearing held on May 27, 2020, Plaintiffs’ counsel argued that the hearing was the final hearing on the merits. The May 27, 2020 hearing was not set as an evidentiary hearing. Moreover, committing to render a decision on the factual merits of a special action where a triable issue may exist would be erroneous and contrary to Arizona law. See Rule 4(f), Arizona Special Actions Rules of Procedure (“If a triable issue of fact is raised in an action under this Rule, it shall be tried subject to special orders concerning discovery.”) The Court is obligated to follow the law and, if a triable issue of fact remains (as it does here), the Court must, and will, adhere to the applicable Rules. Form V000A Docket Code 926 Page 3 3 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 FINDINGS OF FACT AND CONCLUSIONS OF LAW A. JURISDICTION, VENUE AND CASE POSTURE. 1. This Court has jurisdiction. Venue is proper. 2. A.R.S. § 39-121.01(E) authorizes a “special action in the superior court” for the purpose of appealing the denial of a public records request. The Arizona Special Actions Rules of Procedure govern this action. 3. Pursuant to Rule 3, Arizona Special Actions Rules of Procedure, only certain issues may be raised in a special action. These are: a. “Whether the defendant has failed to exercise discretion which he has a duty to exercise; or to perform a duty required by law as to which he has no discretion;” b. “Whether the defendant has proceeded or is threatening to proceed without or in excess of jurisdiction or legal authority;” and c. “Whether a determination was arbitrary or capricious or an abuse of discretion.” 4. Plaintiffs are proceeding exclusively pursuant to Rule 3(a), Arizona Special Actions Rules of Procedure. In their Complaint, Plaintiffs allege that “Defendants have failed to perform their duties under the Arizona Public Records Law, and they have wrongfully denied [Plaintiffs’] access to inspect and copy” the requested records. Complaint, ¶ 53. In other words, Plaintiffs allege that Defendants have failed to perform a duty required by law to which Defendants have no discretion. 5. The records sought by Plaintiffs were those that ADHS obtained from Facilities in response to Executive Order 2020-22. In their Application for Order to Show Cause and Supporting Memorandum of Law, filed May 5, 2020, Plaintiffs have refined their requests, summarizing the records they are seeking (hereafter “Records”) as follows: [Plaintiffs] do not seek any records or information that would reveal confidential health information of any individual. Instead, [Plaintiffs] seek [p]ublic [r]ecords that contain the COVID-19 data that only contains weekly information regarding the number of residents that have tested positive for COVID-19, the number of residents that have Docket Code 926 Form V000A Page 4 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 been transferred to or from an acute care facility, and information regarding the availability of PPE pursuant to Governor Ducey’s Executive Order 2020-22. [Id. at p. 10, ln. 24 through p. 11, ln. 3 (emphasis in original)] B. ARIZONA LAW RECOGNIZES LIBERAL INSPECTION RECORDS, SUBJECT ONLY TO DEFINED EXCEPTIONS. OF PUBLIC 6. Under Arizona law, “[p]ublic records and other matters in the custody of any officer shall be open to inspection by any person at all times during office hours.” A.R.S. § 39-121. This statute shall hereafter be referred to as the “Public Records Law.” 7. Plaintiffs are correct: decades of case law establish the public’s right to access public records in Arizona. The Court has reviewed these legal authorities at length. The Arizona Supreme Court has long recognized that “the core purpose of the public records law is to allow the public access to official records and other government information so that the public may monitor the performance of government officials and their employees.” Lake v. City of Phoenix, 222 Ariz. 547, 549 (2009). This, in part, is why Arizona’s Supreme Court has recognized that the Public Records Law creates a “presumption” requiring disclosure of public records. Id. 8. Plaintiffs’ assertion about the newsworthiness of the information contained in the Records is legitimate. Covid-19 is an invisible adversary, one that attacks and sometimes kills without warning. This virus acutely and profoundly affects one particular group in our society: “the elderly population and those with serious underlying health conditions.” EXECUTIVE ORDER 2020-22. 9. Despite the presumption requiring disclosure of public records, Arizona law also establishes that disclosure of public documents pursuant to the Public Records Law is not required under all circumstances. The Arizona Supreme Court has noted that “[t]here are many exceptions to this public right of inspection.” Scottsdale Unified School Dist. No. 48 of Maricopa County v. KPNX Broadcasting Company, 191 Ariz. 297, 300 ¶9 (1998). Some of these exceptions are statutory; in other instances, they are based on policy when the “public right of inspection may also be curtailed in the interest of ‘confidentiality, privacy, or the best interests of the state.’” Id. (quoting Carlson v. Pima County, 141 Ariz. 487, 490 (1984)). Docket Code 926 Form V000A Page 5 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 10. Arizona law is consistent with federal law, and Arizona’s courts have looked in the past to cases applying the federal Freedom of Information Act for guidance. Id. at 300-01 ¶10. As recently as June 2019, the United States Supreme Court held that, where information treated as private by its owner was provided to the government pursuant to assurances of privacy, the records remain confidential and are protected from disclosure pursuant to the Freedom of Information Act. Food Marketing Institute v. Argus Leader Media, 139 S. Ct. 2356, 2362-66 (2019). 11. Given the legitimate need for information about the prevalence and impact of Covid19 in Facilities, and given the presumption favoring disclosure of public records pursuant to the Public Records Law, the Court’s decision hinges on the question of whether Defendants have shown that their non-disclosure of the Records is justified by an exception to disclosure under Arizona law. 12. During the pendency of this dispute, Defendants have cited multiple statutory exceptions that, they believe, justify non-disclosure of the Records. These generally fall under two separate Articles under the Arizona Revised Statutes: (a) Arizona’s Communicable Disease Information statutes, A.R.S. § 36-661, et seq. (the “CDI”); and (b) Arizona’s Enhanced Surveillance Advisory and Public Health Emergencies Act (the “Act”), A.R.S. § 36-781, et seq. The Court will consider each set of exceptions separately. C. EXCEPTIONS TO DISCLOSURE UNDER ARIZONA’S COMMUINCABLE DISEASE INFORMATION STATUTES. 13. Under the CDI, communicable disease related information is generally confidential. A.R.S. § 36-664. This represents a clear and unambiguous exception to the Public Records Law. 14. However, the CDI establishes defined circumstances when an applicant seeking communicable disease related information, such as Plaintiffs here, can require disclosure. Three of the exceptions to the general rule of confidentiality in the CDI may apply here: a. If a “clear and imminent danger to a person whose life or health may unknowingly be at significant risk as a result of contact with the person to whom the information pertains.” A.R.S. § 36-665(B)(2). Docket Code 926 Form V000A Page 6 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 b. If “the applicant is lawfully entitled to the disclosure and the disclosure is consistent with the provisions of this article.” A.R.S. § 36-665(B)(4). c. If there exists “a clear and imminent danger to a person or to public health or a compelling need requiring disclosure of the communicable disease related information.” A.R.S. § 36-665(B)(5). 15. If communicable disease related information is released, it must be sealed and cannot be disseminated. A.R.S. § 36-665(H)(2). The Court also much make specific findings of fact to justify the release of such information. A.R.S. § 36-665(G). 16. Some, if not all, of the Records sought by Plaintiff constitute communicable disease related information. A.R.S. § 36-661(5). 17. Defendants urge the Court to rule as a matter of law that, because the Records constitute communicable disease related information, the Records are confidential and exempt from production under the Public Records Law. The Court cannot do this on the record before the Court. Nor can the Court rule as a matter of law, as Plaintiffs request, that an exception permitting disclosure of the Records applies. A triable issue exists as to whether the exceptions apply. Factual evidence must be received to determine whether any of these statutory exceptions permitting disclosure exist. By way of illustration: a. The cursory factual record before the Court confirms the danger to life or health and the risk resulting from contact with a person who suffers from Covid-19. However, the law requires a trial to determine the factual question of whether the danger is “clear and imminent,” and whether nondisclosure of the Records to the Plaintiffs creates this danger, particularly in light of other records and information now known and required to be revealed by the Facilities. b. The Court can conclude, as a matter of law, that Plaintiffs have demonstrated a legal right to disclosure under the Public Records Law, thereby establishing one of the elements of an exception. That, however, is not the end of the inquiry. An issue of fact exists as to whether the disclosure to Plaintiffs, and the Plaintiffs’ plans for presumably communicating and publishing this information, are consistent with the provisions of the CDI – which establish clear prohibitions against disclosure. A.R.S. § 36-665(H)(2). Docket Code 926 Form V000A Page 7 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 c. The Court has no issue concluding that Covid-19 represents a danger to public health. However, in so doing, the Court is unable to properly determine in a vacuum whether this danger – in light of the other disclosures now required from Facilities by Arizona law – rises to the level of a “clear and imminent” danger or creates a “compelling” need. d. Weighing “the need for disclosure against the privacy interest of the protected person and the public interest which may be disserved by disclosure” - as required by A.R.S. § 36-665(G) - cannot occur on the scant record before the Court. At a minimum, the Court would need to review in camera the forms obtained by ADHS (none of which are presently before the Court). Moreover, for this determination, notice and an opportunity to be heard needs to be given as required by A.R.S. § 36-665(D). 18. All of these triable issues pursuant to the CDI preclude the issuance of any orders by this Court as a matter of law. A trial on the merits with respect to the CDI must be held. Rule 4(f), Arizona Special Actions Rules of Procedure. D. EXCEPTIONS TO DISCLOSURE UNDER ARIZONA’S ENHANCED SURVEILLANCE ADVISORIES AND PUBLIC HEALTH EMERGENCIES ACT. 19. The parties disagree about EXECUTIVE ORDER 2020-22, which was issued on April 7, 2020 by Arizona Governor Douglas A. Ducey. Plaintiffs assert that this was not an Enhanced Surveillance Advisory (“ESA”). Defendants disagree and argue that EXECUTIVE ORDER 2020-22 was an ESA. 20. The Court agrees with Plaintiffs: EXECUTIVE ORDER 2020-22 was not an ESA. The Court reached this conclusion after taking judicial notice of EXECUTIVE ORDER 202023, which also was issued the same day. The plain language of EXECUTIVE ORDER 2020-23 expressly confirms that it is an ESA. The plain language of EXECUTIVE ORDER 2020-22 does not. 21. Although not an ESA, EXECUTIVE ORDER 2020-22 specifically cited the authority conferred upon Governor Ducey by “the Constitution and laws of this state including A.R.S. § 36-787 . . . .” Docket Code 926 Form V000A Page 8 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 22. A.R.S. § 36-787 is one of the statutes in the Act. The Act encompasses Arizona’s laws dealing with both ESAs and public health emergencies. The Act is codified in Title 36, Chapter 6, Article 9 of the Arizona Revised Statutes, A.R.S. § 36-781 et seq. 23. The Act was enacted in Spring 2002. The Senate Fact Sheet relating to the legislation creating the Act noted: “In the wake of the September 11, 2001 attack on the World Trade Center and the Pentagon, the Centers for Disease Control and Prevention (CDC) have initiated several programs to prepare for biological and chemical terrorism. The CDC’s Center for Law and Public Health at Georgetown University and Johns Hopkins University drafted a model emergency powers act for states to use as a guideline for procedures in the event of a bioterrorist attack.” Arizona Senate Fact Sheet, 2002 Regular Session H.B. 2044, April 18, 2002. 24. The Model State Emergency Health Powers Act referenced in the Senate Fact Sheet was prepared in December 21, 2001 (the “Model Act”). Leslie E. Gerwin, Planning for Pandemic: A New Model for Governing Public Health Emergencies, 37 Am. J.L. & Med. 128, 140 n.53 (2011) (citing and referencing MODEL STATE EMERGENCY HEALTH POWERS ACT (Ctr. for Law and the Public's Health 2001) http://www.publichealthlaw.net/MSEHPA/MSEHPA.pdf). 25. The Model Act identified several stated purposes. First, the Model Act “requires the development of a comprehensive plan to provide a coordinated, appropriate response in the event of a public health emergency. It facilitates the early detection of a health emergency by authorizing the reporting and collection of data and records, and allows for immediate investigation by granting access to individuals’ health information under specified circumstances.” Model Act, December 21, 2001, at p. 6 26. Second, the Model Act recognizes that “a state’s ability to respond to a public health emergency must respect the dignity and rights of persons.” Id. 27. The goal of the Model Act was to strike a balance and provide “state and local officials with the ability to prevent, detect, manage, and contain emergency health threats without unduly interfering with civil rights and liberties.” Id. 28. Providing information to the general public was not a stated goal of the Model Act. Additionally, the Model Act did not create ESAs but, instead, chose to deal with the same activities when describing measures to detect and track public health emergencies. Id. at p. 15. Form V000A Docket Code 926 Page 9 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 29. When enacting the Act in 2002, the Arizona Legislature did not adopt the Model Act. Rather, it derived some concepts from the Model Act and added other provisions (such as an ESA). For example, the Arizona Legislature adopted protections for businesses, including assurances of confidentiality. However, the Legislature changed the structure of the Act and elected to use some terms not defined in either the Act or in the Model Act. 30. The Act has not been amended since 2002. 31. Consequently, the Act is Arizona-unique legislation. This Court must attempt to give effect to the original intent of this 2002 legislation by relying on the plain language of the Act and by using canons of statutory interpretation to resolve any ambiguities. 32. The structure of the Act manifests the clear intent of the Legislature to allow the State to gather and use information in an attempt to manage and mitigate public health emergencies. 33. Based on the plain language of the Act, Governor Ducey was empowered by the Act to issue, and properly exercised his powers under the Act when issuing, EXECUTIVE ORDER 2020-22. 34. The plain language of the Act also manifests the intent of the Legislature to create robust, but not absolute, confidentiality for information gathered. Two separate conclusions can be drawn about the Legislature’s intent to preserve confidentiality based on the terms used in the Act: a. The Legislature did not intend to create “blanket confidentiality” for information gathered. The Legislature could have enacted statutes that provided that “all information” gathered by the State was confidential. It did not do this. b. The Legislature created at least five different types of confidentiality protections in the Act: i. Information constituting a trade secret for a person or business. A.R.S. § 36-783(E)(1); Docket Code 926 Form V000A Page 10 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 ii. “Other information likely to cause substantial harm to the person's or business' competitive position.” A.R.S. § 36-783(E)(2); iii. “Confidential patient information, including medical records.” A.R.S. §§ 36-784(A). The Legislature also described this information as “personal identifiers.” A.R.S. §§ 36-790; iv. “Other information from which a person might be identified.” A.R.S. §§ 36-784(C) and 36-785(A); and v. Medical information. A.R.S. §§ 36-784(C) and 36-785(A). 35. Plaintiffs argue that because EXECUTIVE ORDER 2020-22 was not an ESA, the Court need not consider the confidentiality protections in the statutes dealing with ESAs. The Court disagrees for multiple reasons. 36. First, the plain language of at least one statute – A.R.S. § 36-790 – applies to all statutes in the Act by its very terms. A.R.S. § 36-790(A) addresses information produced pursuant to “this Article” – i.e. the entire Act. This statute creates confidentiality and provides in pertinent part: “The department and local health authorities shall maintain the confidentiality of the medical information and personal identifiers received.” Id. 37. Second, because some of the terms used in the confidentiality provisions in A.R.S. § 36-790 are undefined, it is necessary to consider the use of the identical terms in other confidentiality provisions in the Act, irrespective of whether that provision was addressing an ESA or public health emergency. 38. Finally, although some of the confidentiality protections in the Act plainly deal with ESAs, the plain language of other protections in statutes addressing ESAs are not so limited.4 4 After reviewing the Model Act and the Act, one fairly could reach the conclusion that the Legislature in 2002 conflated the progression from ESAs to public health emergencies – and the need for confidentiality during each – when drafting the Act. Docket Code 926 Form V000A Page 11 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 E. BUSINESS-FOCUSED PROTECTIONS UNDER THE ACT. 39. The first two categories of confidentiality protections under the Act focus on the protection of business interests. (See Paragraphs 34(b)(i) and (ii), supra.). These protections are unique to Arizona; they are not in the Model Act. 40. The first category of confidentiality protection – the protection of trade secrets (Paragraph 34(b)(i) supra.) – is not at issue in this case, and the Court declines to address this protection further in this case. However, the Court notes that the plain language of this provision limits its applicability; indeed, by its very terms, this protection deals only with “information provided under this section” – i.e. reporting during ESAs. A.R.S. § 36-783(E)(1). The Court agrees with Plaintiffs that this confidentiality protection does not apply here. 41. The second category of confidentiality protection under the Act deals with the disclosure information likely to cause substantial harm to the competitive position of a person or business.5 (See Paragraph 34(b)(ii) supra.) Defendants argue that this protection applies, whereas Plaintiffs assert that this is inapplicable because EXECUTIVE ORDER 2020-22 was not an ESA. Although contained in a statute dealing with ESAs, the plain language of this protection is broader than the first category and does not expressly limit its application to ESAs. Instead, A.R.S. § 36-783(E)(2) provides: “The department and local public health authority shall maintain as confidential . . . [o]ther information likely to cause substantial harm to the person’s or business’ competitive position.” 42. Under certain circumstances, if a Facility is known to have residents who are ill with, or who have died from, Covid-19, there may be some injury to the business arising from the disclosure of the mere number of Covid-19 cases in the Facility.6 5 It is not the proper role of the Court to assess the wisdom of policies underlying legislation. However, if applied literally, the Legislature may have created a confidential safe-harbor for Facilities which may be operating outside of CDC guidelines relating to Covid-19. If applicable, the policy underlying this exception is troubling. 6 Although Plaintiffs were unwilling to concede this point during oral argument on May 27, Plaintiffs’ own Declarations demonstrate this triable issue. Ms. Jeannie Tucker’s Declaration expresses the admirable desire to “explore other facilities in the state to assess the risks of residency to my mother.” Tucker Declaration, at ¶8. Her desire is laudable, and the Court applauds her demonstrated love for her mother. However, the ability of Arizonans in the position of Ms. Tucker who are looking to assess risks of residency in a Facility is largely unaffected by whether “the Department were to release the numerical data by the names of the assisted living facilities.” Id. EXECUTIVE ORDER 2020-35 now provides that Arizonans with family members applying to, living in, or transferring to Facilities must be given information about the prevalence of Covid-19 in such Facility. The assertion of a “denial of access” to information is overstated by Plaintiffs in the context of Arizonans conducting due diligence and making these critical Form V000A Docket Code 926 Page 12 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 43. Multiple triable issues exist which require either additional legal briefing and/or an evidentiary hearing, including: a. Whether A.R.S. § 36-783(E)(2) applies only to ESAs, or to all information produced to ADHS pursuant to the Act. Although likely a legal question, this issue was not briefed in detail and the Court can envision at least one scenario where factual issues arise. b. Whether disclosures to DHS pursuant to EXECUTIVE ORDER 2020-22 somehow were confidential because of prior Orders – including EXECUTIVE ORDER 202013 (which was an ESA). Briefing is needed on the legal effect of whether prior Orders and prior ESAs either trigger the confidentiality obligations of A.R.S. § 36-783(E)(2), or create a sufficient expectation of privacy of non-public information such that a confidentiality obligation exists, just as the United States Supreme Court recognized in Food Marketing Institute. Although likely a legal question, the Court again can envision at least one scenario where factual issues may arise. c. If A.R.S. § 36-783(E)(2) applies to all actions taken pursuant to the Act, and not only when ESAs are issued, a triable issue exists to determine whether the disclosure of the information contained in the Records is likely to cause injury to a person’s or business’s competitive interests, as well as whether such injury is “substantial.” F. INDIVIDUAL-FOCUSED PROTECTIONS UNDER THE ACT. 44. The third and fourth categories of confidentiality protections in the Act focus on protection of individual privacy. (See Paragraphs 34(b)(iii) and (iv), supra.) 45. The third category of confidentiality protection in the Act involves “confidential patient information, including medical records.” A.R.S. § 36-784(A). (See Paragraph 34(b)(iii) supra.) This exception is not at issue in this case. Plaintiffs expressly have limited the scope of their request and have confirmed that they “do not seek any records or information that would reveal confidential health information of any individual.” decisions for their loved ones in light of EXECUTIVE ORDER 2020-35. In fact, as discussed by the Court at oral argument, Ms. Tucker’s desire to compare “the data rationally” may be undermined by a blanket disclosure of raw numbers. Recognizing that other underlying and co-existing health conditions of patients cannot be disclosed, the release of only Covid-19 data could be deceptive and injurious to business interests if released in a vacuum. Form V000A Docket Code 926 Page 13 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 Application for Order to Show Cause and Supporting Memorandum of Law, filed May 5, 2020, at p. 10, lns. 24-25 (emphasis in original). 46. The fourth category of confidentiality protection in the Act involves “other information from which a person might be identified.” (See Paragraph 34(b)(iv) supra.) The Act makes evident that this confidentiality protection was important to the Legislature, because it is enumerated twice in the Act: first in A.R.S. § 36-784(C), and then again in A.R.S. § 36-785(A). 47. Defendants argue that the Court should conclude that the information in the Records, as a matter of law, falls under this fourth category of confidentiality protection. Plaintiffs disagree, again arguing that the law is inapplicable. 48. The precise language of A.R.S. § 36-784(C) is important, and provides: “Any medical information or other information from which a person may be identified that is received by the department or local health authority in the course of an enhanced surveillance advisory is confidential and is not available to the public.” (Emphasis added.) 49. The Court disagrees with Plaintiffs that this argument should be rejected because it involves mere speculation. Indeed, the utilization of the term “from which a person might be identified” invites speculation and does not require proof that a person actually has been identified. 50. Additional briefing and argument concerning the applicability and scope of this exception is warranted. Does “in the course of” mean that this protection applies to all disease-related information provided to DHS once an ESA has been declared, even if such information is obtained pursuant to other, related orders dealing with the same health issue? Or, does “in the course of” limit the confidentiality protection to only the specific information requested in the particular ESA declaration? Neither party has briefed this legal issue. 51. Additionally, if A.R.S. § 36-784(C) does apply to the Records requested, a factual question exists as to whether the information in the Records constitutes “other information from which a person may be identified,” and therefore which must remain confidential. 52. A triable issue, therefore, exists as to the substance and the applicability of the fourth category of confidentiality protections under the Act. Docket Code 926 Form V000A Page 14 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 G. PROTECTION OF “MEDICAL INFORMATION” UNDER THE ACT. 53. The final confidentiality protection in the Act is the fifth category – the Act’s protection of the confidentiality of information constituting “medical information.” 54. Medical information is protected in A.R.S. § 36-790. This statute applies to all actions taken under the Act: ESAs and public health emergencies. It, therefore, unquestionably applies to EXECUTIVE ORDER 2020-22 and to this case. 55. The term “medical information” is not used in the Model Act, nor is this term defined in the Act. 56. The Court looks to the common meaning of the term “medical information.” Common meaning, however, only is somewhat helpful in defining this term. Clearly, “medical information” relates to facts and information relating or correlating to, or concerned with a health or medical condition. The question, then, becomes the breadth of the term “medical information.” 57. In the Reply, Plaintiffs urge the Court to apply the canon of statutory interpretation known as in pari materia. Plaintiffs argue that “[i]n construing a specific provision, [courts] look to the statute as a whole and . . . may also consider statutes that are in pari materia – of the same subject or general purpose – for guidance and to give effect to all of the provisions involved.” Reply, at p.3, lns. 20-23 (quoting Stambaugh v. Killian, 242 Ariz. 508, 509 (2017). The Court absolutely agrees with Plaintiffs. When construing a statute, the Court's duty is to give effect to all sections thereof. State v. Mahaney, 193 Ariz. 566 (App. 1999). A statute must be given effect so that no clause, sentence or word is rendered superfluous, meaningless, void, contradictory, or insignificant. State v. Hoggatt, 199 Ariz. 440 (App. 2001), review denied; State ex rel. Romley v. Johnson, 196 Ariz. 52 (App. 1998), review denied; Marlar v. State, 136 Ariz. 404 (App. 1983). In interpreting a statute, Court must read the statute as a whole and give meaningful operation to each of its provisions. In re $3,636.24, Three thousand six hundred thirty six dollars and 24/100 U.S. Currency, 198 Ariz. 504 (App. 2000). 58. Despite the lack of a definition, the prevalence of the use of the term “medical information” within the Act confirms that this term was not used accidentally and had a meaning to the Legislature in 2002. Indeed, the term was used three different times in the short Act: Docket Code 926 Form V000A Page 15 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 a. Two separate statutes in the Act – A.R.S. § 36-784(C) and A.R.S. § 36-785(A) – include the phrase “medical information or other information from which a person might be identified.” (Emphasis added.) b. Elsewhere in the Act, the Legislature required ADHS to maintain the confidentiality of “the medical information and personal identifiers received.” A.R.S. § 36-790(A) (emphasis added). 59. Based on the plain language of how the Legislature used the term “medical information,” this term must be construed to include more than patient medical records. Multiple reasons support this conclusion: a. A patient’s medical records – complete with name, date of birth, gender, age, blood type, health conditions (current and past), doctor names, etc. – necessarily contain, and therefore constitute, “information from which a person might be identified.” If “medical information” were construed to mean only a patient’s medical records, the term “medical information” would have no effect and would be rendered duplicative and meaningless in A.R.S. § 36-784(C) and A.R.S. § 36-785(A) – each of which protect “medical information or other information which a person might be identified.” (Emphasis added.) b. In the same way, documents containing a patient’s “personal identifiers” (as referenced in A.R.S. § 36-790(A)) necessarily include a patient’s medical records. Consequently, if “medical information” means only a patient’s medical records, the term “medical information” in A.R.S. § 36-790(A) would have no effect and would be rendered duplicative and meaningless. c. Perhaps most instructive that the term “medical information” has a meaning different than medical records is the use, and non-use, of this term in A.R.S. § 36-784. In subsection A of this statute, the Legislature did not use term “medical information.” Instead, it used the clause “confidential patient information, including medical records.” A.R.S. § 36-784(A). Thereafter, in subsection C of this statute, the law uses the phrase “medical information or other information from which a person might be identified.” A.R.S. § 36784(C). Because “confidential patient information, including medical records” necessarily is “information from which a person might be identified,” the very language used in A.R.S. § 36-784 confirms that the term “medical information” has a meaning besides medical records. Docket Code 926 Form V000A Page 16 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 60. By giving effect to plain language of the Act, and by using the doctrine of statutory construction – the in pari materia doctrine – so that all statutory terms are given effect and no statutory term is rendered meaningless, one conclusion becomes evident: “medical information” has a different meaning besides “personal identifiers,” “confidential patient information,” and “medical records.” 61. The purpose and history relating to the Act, and the activities contemplated by the Act, offer further guidance about the definition of “medical information.” The very subject matter of the Act relates to health conditions causing the need for the declaration of an ESA and/or a public health emergency. To address these situations, the Act: a. Provides that information may be obtained “to identify, diagnose, treat and track persons who may have been exposed to an illness, health condition or clinical syndrome.” A.R.S. § 36-784(A). b. Seeks to achieve the “positive identification of exposed persons and to develop information relating to the source and spread of the illness or health condition.” A.R.S. § 36-784(B). c. Anticipates that “information on reportable illnesses, health conditions, unusual disease clusters or suspicious disease events” will be discovered. A.R.S. § 36785(C). 62. In this context, and recognizing that “medical information” has a meaning different than a patient’s medical records, the Court construes the term “medical information” as encompassing information relating to (a) the identification, diagnosis, treatment, tracking of persons exposed to an illness, (b) the source and spread of the illness, and (c) information on health conditions, unusual disease clusters or suspicious disease events. H. CONFLICT OF LAWS. 63. When a conflict of laws exist, courts must decide which law governs. In this case, the Court must decide which law prevails: the confidentiality protections of the CDI and the Act or the disclosure obligations of the Public Records Law. Arizona law guides this determination in two ways: a. First, courts presume that the Legislature knows the existing law at the time it enacts new legislation. Daou v. Harris, 139 Ariz. 353 (1984). The Legislature Docket Code 926 Form V000A Page 17 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 enacted the Act in 2002 – only two years after amending the Public Records Law (A.R.S. § 39-121) in 2000. The CDI was most recently amended in 2004. None of the statutes have been amended since then. By enacting the Act and by amending the CDI after the Public Records Law had been enacted, the Legislature created exceptions to the Public Records Law. b. Second, when interpreting statutes, special or specific statutory provisions will usually control over those that are general. City of Phoenix v. Superior Court In and For Maricopa County, 139 Ariz. 175 (1984). Here, the Public Records Law is a law of general application. By contrast, the CDI and the Act apply only to certain records during an ESA and/or a public health emergency. 64. After applying this Arizona law, conflicts of law must be resolved by following the more-recent and more-specific provisions of the CDI and the Act over the older and more general Public Records Law. I. ANALYSIS OF RECORDS REQUESTED BY PLAINTIFFS. 65. Plaintiffs sought Records in three categories, namely: a. Category One: “Public [r]ecords that contain the COVID-19 data that only contains weekly information regarding the number of residents that have tested positive for COVID-19.” b. Category Two: “[T]he number of residents that have been transferred to or from an acute care facility.” c. Category Three: “[I]nformation regarding the availability of PPE pursuant to Governor Ducey’s Executive Order 2020-22.” Plaintiff News Organizations’ Application for Order to Show Cause and Supporting Memorandum of Law, filed May 5, 2020, at p. 10, ln. 24 through p. 11, ln. 3. 66. With respect to Category One: a. Pursuant to the CDI: Category One seeks communicable disease related information. A.R.S. § 36-661(5). Therefore, this information is confidential. A.R.S. § 36-664(A). Although the Public Records Law contains the general requirement that ADHS disclose public records, ADHS is not “specifically Docket Code 926 Form V000A Page 18 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 required by law” to disclose this information. A.R.S. § 36-664(C)(1). However, a triable issue exists as to whether an exception in A.R.S. § 36-665 justifies an order of this Court requiring Defendants to disclose Records responsive to Category One. If any disclosure was made pursuant to the CDI, such disclosure could not be disclosed by Plaintiffs to any other person absent further Court order. A.R.S. §§ 36-664(G), 36-665(H)(2). b. Pursuant to the Act: Category One seeks “medical information.” The information relates to the diagnosis, tracking, source and/or spread of people suffering from Covid-19 in Facilities. Because the Records responsive to Category One constitute “medical information,” they are “confidential” as a matter of law pursuant to the Act. A.R.S. § 36-790(A). 67. With respect to Category Two: a. Pursuant to the CDI: Category Two seeks communicable disease related information. A.R.S. § 36-661(5). Therefore, this information is confidential. A.R.S. § 36-664(A). Although the Public Records Law contains the general requirement that ADHS disclose public records, ADHS is not “specifically required by law” to disclose this information. A.R.S. § 36-664(C)(1). However, a triable issue exists as to whether an exception in A.R.S. § 36-665 justifies an order of this Court requiring Defendants to disclose Records responsive to Category Two. If any disclosure was made pursuant to the CDI, such disclosure could not be disclosed by Plaintiffs to any other person absent further Court order. A.R.S. §§ 36-664(G), 36-665(H)(2). b. Pursuant to the Act: Category Two seeks “medical information.” The information relates to people who have been transferred from or to an acute care facility – which is information premised upon a diagnosis, and relating to the tracking, source, and spread, of Covid-19. Because the Records responsive to Category Two constitute “medical information,” they are “confidential” as a matter of law pursuant to the Act. A.R.S. § 36-790(A). 68. Because Records responsive to Category One and Category Two are confidential as a matter of law under the Act, the Court need not consider, nor conduct a trial relating to, the confidentiality of the Records responsive to Category One or Category Two pursuant to the CDI. As a matter of law, Defendants ADHS and Dr. Christ were justified in not complying with Plaintiffs’ request for Records responsive to Category One and Category Two. Docket Code 926 Form V000A Page 19 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 69. With respect to Category Three: a. Pursuant to the CDI: A triable issue exists as to whether Records responsive to Category Three constitutes “communicable disease related information.” A.R.S. § 36-661(5). If these Records constitute “communicable disease related information,” a triable issue exists as to whether an exception in A.R.S. § 36665 justifies an order of this Court requiring Defendants to disclose Records responsive to Category Three. (See ¶ 17 supra.) If any disclosure was made pursuant to the CDI, such disclosure could not be disclosed by Plaintiffs to any other person absent further Court order. A.R.S. §§ 36-664(G), 36-665(H)(2). b. Pursuant to the Act: Records responsive to Category Three do not seek “medical information.” The information sought relates to supplies used to care for residents in Facilities. Because Records responsive to Category Three do not relate to medical information, as a matter of law, those records are not protected by the “medical information” confidentiality protections in the Act. 70. That is not the end of the inquiry with respect to Category Three. Whether the Records responsive to Category Three must be produced to Plaintiffs, or are confidential, hinges on the multiple triable issues: a. Pursuant to the CDI: Do the Records responsive to Category Three constitute “communicable disease related information” and, if so, do any of the exceptions set forth in A.R.S. § 36-665(B) apply? (See ¶ 17 supra.) Without question, the confidentiality protections in the CDI apply irrespective of whether or not EXECUTIVE ORDER 2020-22 was an ESA. b. Pursuant to the Act. i. Whether some portion or all of A.R.S. §§ 36-784(C) and/or 36-785(A) – which involve ESAs – are applicable either to EXECUTIVE ORDER 2020-22, or to the Records responsive to Category Three by operation of law. ii. Whether the Records responsive to Category Three constitute “other information from which a person might be identified” such that the confidentiality protections of A.R.S. §§ 36-784(C) and 36-785(A) apply. (See ¶¶ 48-49 supra.) The Court finds this assertion to be particularly doubtful. However, the Court will hear evidence on this point because an evidentiary hearing will be required. Docket Code 926 Form V000A Page 20 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 iii. Whether A.R.S. § 36-783(E)(2) applies to EXECUTIVE ORDER 2020-22, and if so, whether the Records responsive to Category Three constitute “other information likely to cause substantial harm to the person's or business' competitive position” such that the confidentiality protections of A.R.S. § 36783(E)(2) prevent disclosure. (See ¶ 43 supra.) 71. Because a triable issues exists, Defendants ADHS and Dr. Christ at this time have properly refused to produce Records regarding Category Three (regarding the availability of PPE). The propriety of production will abide discovery and a trial in accordance with the Arizona Special Actions Rules of Procedure. J. CONCLUSIONS 72. Both Plaintiffs and Defendants have asserted legitimate positions in this action, particularly given that the underlying issues are important and weighty in the lives of Arizonans. It is beyond dispute that Arizonans who have parents, aunts, uncles, friends, neighbors, and loved ones living, or who may in the future be placed, in a Facility to care for them want, and justifiably deserve, to know how that Facility and its residents have fared during the Covid-19 public health emergency. As a son, nephew, friend, and neighbor, this judicial officer understands, respects, and empathizes with the need for Arizonans to have access to the information contained in the Records. Fortunately, this need of family and caregivers has been mitigated, if not eliminated, by EXECUTIVE ORDER 2020-35, which requires Facilities to provide Covid-19 information to residents, transferees, and applicants – and their guardians and next of kin – on a prompt basis. 73. It is not the position of the Judicial Branch to enact legislation or to create policy – that responsibility rests squarely with the other branches of government. The Legislature could consider the policy implications on all sides of this issue, and if desired, enact clarifying legislation and expressly protect records, or direct that records be released. If any frustration exists, it is that this has not happened. The Act – the legislation authorizing the actions at issue – lacks clarity. Rather than using model legislation with clearly defined terms, and rather than actually defining the terms used, the Legislature in 2002 created Arizona-specific legislation, apparently from whole cloth. Even though the subject matter of the Act relates to emergencies – instances when clear statutes are needed to permit critical, decisive and time-sensitive actions – the Act left critical terms undefined. Eighteen regular legislative sessions have passed, and the Act has not been amended or clarified. Perhaps this is the fortuitous result of not having to deal with a widespread health emergency during the intervening years. Nonetheless, if this Docket Code 926 Form V000A Page 21 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 decision illustrates nothing else, it highlights the need for the Legislature to revisit the Act and make it more workable for all concerned. In its present form, the ambiguous Act does a disservice to the media, to government leaders, to the courts, and to all Arizonans. 74. Arizona has been profoundly impacted by Covid-19. Lives have been lost. Women and men, old and young, have been sickened. The economy has been set back. Livelihoods of people have been compromised. Weddings and religious ceremonies have been delayed. Births and funerals have been isolated. Students have missed classes and graduations. Temptation exists to simply adopt jurisprudence that because Covid-19 has created such harm in our state and because Arizonans need information to battle Covid-19, sufficient justification exists to “look the other way” and require release of the Records. This judicial officer, however, will not and cannot do this. Indeed, were this judicial officer to ignore the law, Arizona’s Constitution – and its provisions of limited government and separation of powers – would be added to the list of Covid-19’s victims. The Court will neither countenance nor assist in this. Although difficult in the face of this devilish virus, fidelity to the Constitution and laws of the State of Arizona must prevail. Good cause appearing, IT IS ORDERED denying in part Plaintiff News Organizations’ Application for Order to Show Cause and Supporting Memorandum of Law, filed May 5, 2020. IT IS FURTHER ORDERED entering judgment against Plaintiffs and in favor of Defendants with respect to Plaintiffs’ request that Defendants be compelled to produce records “that contain the COVID-19 data that only contains weekly information regarding the number of residents that have tested positive for COVID-19.” This medical information is confidential and protected as a matter of law. IT IS FURTHER ORDERED entering judgment against Plaintiffs and in favor of Defendants with respect to Plaintiffs’ request that Defendants be compelled to produce records identifying “the number of residents that have been transferred to or from an acute care facility.” This medical information is confidential and protected as a matter of law. IT IS FURTHER ORDERED that, because there is no just reason for delay in entering judgment with respect to foregoing, this constitutes a Judgment as to these matters pursuant to Rule 6, Arizona Special Actions Rules of Procedure, and Rule 54(b), Arizona Rules of Civil Procedure. Docket Code 926 Form V000A Page 22 SUPERIOR COURT OF ARIZONA MARICOPA COUNTY CV 2020-005385 05/29/2020 IT IS FURTHER ORDERED finding that a triable issue exists relating to the remaining issues in this case – specifically, Defendants’ failure to produce documents relating to “information regarding the availability of PPE pursuant to Governor Ducey’s EXECUTIVE ORDER 2020-22.” This trial must proceed in accordance with Rule 4, Arizona Rules of Special Action Procedure. IT IS FURTHER ORDERED directing Defendants to file their Answers on or before June 8, 2020 as to all remaining claims in the case. IT IS FURTHER ORDERED setting a Scheduling Conference with respect to the triable issues relating to the lack of production of documents relating to “information regarding the availability of PPE pursuant to Governor Ducey’s EXECUTIVE ORDER 2020-22.” This will be held on June 17, 2020, at 10:30 a.m. (time allotted: 30 minutes) and will be held by video conference. IT IS FURTHER ORDERED pubic access to the hearing may be obtained using the following call in number for the hearing: Telephone number: 602-506-9695 (or toll free 1-855-506-9695) Code: 621748 Dated: May 29, 2020 /s/ Christopher A. Coury Superior Court Judge Docket Code 926 Form V000A Page 23