A handful of Utah-based media outlets are demanding that Utah County release the names of two businesses that county executives say ignored COVID-19 guidelines and instructed employees who had tested positive for the virus to continue coming in to work.
On May 4, the Utah County Commission and mayors throughout the county released a statement that said contact tracing performed by the Utah County Health Department revealed that two unidentified businesses “instructed employees to not follow quarantine guidelines after exposure to a confirmed COVID-19 diagnosis and still report to work,” resulting in 68 positive cases.
The Utah County Health Department has said Section 26-6-27 of the Utah Code prohibits it from disclosing the names of the businesses since such information could lead to the identification of employees and thus would be an invasion of privacy.
That section of code states that information collected or possessed by local health departments “relating to an individual who has or is suspected of having a disease designated by the department as a communicable or reportable disease under this chapter shall be held by the (state health) department and local health departments as strictly confidential.”
The Daily Herald filed a public records request on May 6 requesting documents related to contact tracing conducted by the Utah County Health Department. The county denied that request on May 8.
“The requested information, pertaining to the novel coronavirus, was obtained during an epidemiological investigation,” Utah County Records Officer Laura Mendoza wrote. “Subsequently, all information is strictly confidential under Utah Code 26-6-27.”
In a letter sent to Utah County commissioners Tanner Ainge, Bill Lee and Nathan Ivie on Monday on behalf of five media outlets — including the Daily Herald — attorney Michael Patrick O’Brien said the media outlets would be prepared to go to court if the county didn’t release the business names.
“Our clients believe the issues raised in this letter and by their GRAMA (Government Records Access and Management Act) requests are quite significant, and thus we intend to pursue our clients’ record request appeals to the fullest extent possible to resolve this dispute and to set precedent for future similar circumstances,” wrote O’Brien.
O’Brien added that “there may be better and more constructive ways for all of us to spend our valuable time and energy than in litigation,” especially during a time of “struggle and uncertainty.”
“For that reason, we earnestly ask you to reconsider the County’s position on this issue and to stop protecting the businesses who did so little to help — and possibly so much to hurt — the rest of us,” O’Brien said.
The other media outlets represented in the letter include The Salt Lake Tribune, the Deseret News, Fox 13 and KUTV.
Both state and county health department officials have argued that releasing the names of the businesses is unnecessary from a public health perspective since neither of the businesses directly interact with the public. O’Brien objected to this line of reasoning.
“Despite the County’s contentions to the contrary, these businesses indeed are public facing, just like any other business,” the attorney said. “No business is isolated from the public. The two involved businesses may not be store fronts or retail operations, but they likely have sales people, purchase supplies, receive/make deliveries, put their products in the stream of commerce, utilize repair/maintenance services, have business visitors, share space and common building/parking areas with others, and interact for business reasons with others.”
O’Brien said the county “seems concerned that members of the public will not responsibly use the information about the names of the two businesses at issue” but that “such a concern is the tail wagging the dog,” drawing parallels to debates about gun control.
“We do not ban firearms just because a few people misuse them, and we should not censor information out of a fear some few might misuse it,” he wrote. “Laws exist to deter and hold responsible those who misuse either firearms or government information.”
O’Brien said redacting the names of individual persons would resolve the county’s concern that releasing the names of the businesses could lead to the identification of individual employees.
“Because Utah Code § 26-6-27 protects infected individuals, and not the reckless employer who facilitated the infection, the County can protect such individuals by redacting their name(s) from any documents that show the names of the rogue businesses,” said O’Brien. “Indeed, GRAMA requires that such redaction(s) be made so that other information can be made public.”
Ed Carter, director of Brigham Young University’s School of Communications and an attorney who has litigated GRAMA cases, told the Daily Herald on May 8 that, in his legal opinion, Section 26-6-27 of the Utah Code does not prohibit the county from releasing the names of the two businesses.