Recalibrating the balance: Increasing transparency around COVID-19 while still respecting privacy

By Clare Norins

Narrow restriction of local information about confirmed cases of COVID-19 begs the question: What, exactly, is the appropriate balance between protecting an individual’s identity and the public’s right to information during a public health crisis?

The Georgia Department of Public Health — like many state health departments around the country — provides daily updates on the number of confirmed COVID-19 cases, broken down by county. While these numbers and how they change over time (so far they are only rising) are informative, Georgians are eager to know more, specifically how the coronavirus is manifesting in their local communities.

Yet the department, citing privacy concerns, has declined to release details such as cities within a particular county where cases have been confirmed or locations where people who tested positive have been. News outlets around the state have documented the restrictions on information, in reports like these:

Health care providers in some areas, such as Augusta and Albany, have filled the gap by providing more localized COVID numbers. But this level of data is not available for most of the state, making it difficult for municipal officials and the public to ascribe meaning to the state-reported county numbers.

Lack of transparency frustrates local officials and citizens nationwide

This tension between preservation of privacy interests on the one hand, and a call for greater transparency on the other, is playing out not just in Georgia but around the country. For example, in Massachusetts, some municipalities are releasing specific numbers about COVID cases, and even COVID deaths, within their boundaries, citing the need to keep the public informed. Other municipalities, however, are declining to release numbers, instead referring the public only to the county-based statistics provided by the state health department.

Clare Norins

Oklahoma is another example. There, local government officials and citizens have been frustrated by the state’s refusal to provide more specific, yet still non-identifying, information about confirmed COVID cases. Such information, they say, would help them to make more informed personal and public health decisions.

Meanwhile, South Carolina’s Department of Public Health and Environmental Control has taken an additional step toward transparency by making data on positive COVID cases available by ZIP code.  So, too, has Illinois.

Localized information on COVID-19 would prompt precautions

In response to calls for greater transparency, state public health officials here and elsewhere are encouraging people to assume that they could come into contact with someone infected with COVID-19 at any time, and to take precautions accordingly. It would be far more impactful if people truly understood the virus’ proximity and escalation. For instance, knowing that a certain number of people in your town have tested positive for COVID-19 or that someone from your workplace, your child’s school or the elder care facility where your parent lives has far greater meaning than simply knowing that X number of random people somewhere in your county tested positive for COVID-19. Localized information is also more persuasive. When people understand how the disease is spreading in their town, they are more likely to take precautionary measures.

And here’s the nub of it: Enhanced disclosure of the location or affiliation of people who have tested positive for COVID is — in most situations — not going to be sufficient to make them reasonably identifiable. Certainly, disclosing the number of confirmed COVID cases in a town or city does not identify anyone. Even information that narrows the pool of possible candidates to 1,000, 500 or even 50 people does not identify any single individual. In other words, state health departments, including in Georgia, are taking greater precautions than are actually necessary to achieve reasonable medical privacy.

Moreover, the federal law restricting release of medical information — the Health Insurance Portability and Accountability Act, or HIPAA — recognizes that privacy interests are not absolute in the face of a public health crisis. A March bulletin from the U.S. Department of Health & Human Services states that individual health information can be disclosed “to anyone as necessary to prevent or lessen a serious and imminent threat to the health and safety of … the public.”

This is echoed by the Georgia Department of Public Health’s Notice of Privacy Policies, which states, “We may disclose your health information for public health activities which include: preventing or controlling disease … .”

It’s time to prioritize Georgians’ right to vital health information

A recalibration of privacy vs. access is therefore in order. Yes, it is important not to publicly out individuals who have tested positive for COVID-19 without their consent. But the Georgia Department of Public Health and local municipalities can avoid that while still providing citizens access to localized, non-identifying information about COVID-19’s presence in their communities, empowering them to make informed and rational choices.

Withholding this kind of potentially life-saving information goes beyond what is necessary to reasonably protect privacy and, instead, fosters anxiety and public mistrust of health institutions.

Clare Norins, a First Amendment attorney, is a member of GFAF’s board of directors and is director of the First Amendment Clinic at the University of Georgia School of Law.

Learn more about open government and transparency issues amid the COVID-19 coronavirus crisis, including tips for conducting virtual public meetings that follow Georgia’s Sunshine Laws.

Foundation promotes open government at conference for freshman city officials

Newly elected mayors and city council members from across the state talked about the importance of open and transparent government with Georgia First Amendment Association Vice President Jim Zachary at the Georgia Municipal Association Newly Elected Officials Institute, March 7-8.

GFAF board member Jim Zachary promotes government transparency at the 2019 Newly Elected Officials Institute hosted by the Georgia Municipal Association.

Zachary answered questions about the state’s Open Meetings Act and Open Records Act and provided copies of GFAF’s Red Book, Georgia’s Sunshine Laws: A Citizen’s Guide to Open Government.

More than 100 officials from over 60 cities attended the GMA event, which was held at the University of Georgia Tifton Campus Conference Center.

“Freshman city officials from all around the state—St. Marys, Walnut Grove, Columbus, Lawrenceville, Blackshear, Fitzgerald, Poulan, Lake City, Ashburn, Hoschton—and several other cities came by to talk,” Zachary said. “They are energized about entering public service and conscientious about the need to conduct the public’s business out in the open.”

The foundation offers open records and meetings training to public officials around the state and encourages government agencies and individual elected officials to join the organization to access resources and support the principles of government transparency. Learn more at gfaf.org or to by emailing info@gfaf.org.

Charges filed in Atlanta transparency case demonstrate perils of violating Georgia’s Open Records Act

‘These are the people’s records, and the public deserves access to them,’ says Georgia First Amendment Foundation President Richard T. Griffiths.

For the first time ever, an alleged violation of Georgia’s Open Records Act has led to criminal charges. On Feb. 11, Georgia Attorney General Chris Carr announced plans to prosecute Jenna Garland, who served as press secretary under former Atlanta Mayor Kasim Reed.

Garland is accused of intentionally delaying the release of public records that contained information potentially damaging to city officials. The alleged actions were documented in text messages in which Garland directed a subordinate to “be as unhelpful as possible,” “drag this out” and “provide the information in the most confusing format available” in response to records requests from WSB-TV.

Richard T. Griffiths, Georgia First Amendment Foundation president

“In part, this prosecution was made inevitable by the clear documentation of the obstruction,” said Georgia First Amendment Foundation President Richard T. Griffiths. “Many other cases where officials are slow to respond, impose outrageous fees or claim spurious exemptions are harder to take on. The attorney general’s office also regularly weighs in on the side of open government to discourage these less obvious tactics.

“The decision to prosecute in the City of Atlanta case sends a clear message that public officials in Georgia violate the open records laws at their peril. We at the Georgia First Amendment Foundation commend Attorney General Carr for taking such a strong stand for open government. These are the people’s records, and the public deserves access to them — even if those records are embarrassing to public officials,” Griffiths said.

Current Atlanta Mayor Keisha Lance Bottoms and the Atlanta City Council in September passed a sweeping ordinance that institutes a transparency officer, open government training for all city officials, a website to track open records compliance and penalties for city officials who don’t comply. Griffiths said if Atlanta lives up to these promises to increase transparency, the city could become a national model for openness.

Griffiths also pointed out that while bad actors grab the headlines, most state and local government officials in Georgia respect and comply with the Open Records Act. “As we have seen from the training sessions that the foundation puts on, many public officials and records custodians are anxious to learn the details of the law so they can do the right thing.”

Watch Griffiths’ March 8, 2018, interview with WSB-TV in which he called for the attorney general to investigate the City of Atlanta’s potential Open Records Act violations.

 

2019 GFAF Legislative Breakfast recap

Panelists discuss transparency issues related to sexual harassment reporting, voting machines, schools and hospitals as the Georgia Legislature opens.

(L-R) Tom Clyde, James Salzer, Cobb Commissioner Lisa Cupid, Marissa Dodson, Sen. Jennifer Jordan and Cynthia Counts.

A panel of elected officials, First Amendment lawyers and a seasoned Gold Dome journalist weighed in on potential transparency threats emerging in the 2019 General Assembly session during the Georgia First Amendment Foundation’s annual Legislative Breakfast on Jan. 24.

On the agenda: New rules for filing sexual harassment complaints against lawmakers. Big changes to Georgia’s voting system and a potential $150 million price tag. Eroding access to public school operations and performance. And a move to add visibility to the business operations of many hospitals.

The lively discussion took place at the Georgia State University College of Law. Co-sponsors of the event were the GSU chapters of the National Lawyers Guild, the Black Law Student Association and the Latinx & Caribbean Law Student Association. First Amendment attorney and GFAF board member Cynthia Counts moderated the discussion.

If you missed it, we’ve got you covered with a video of the event. Highlights include:

  • State Sen. Jennifer Jordan laments the proposed new sexual harassment policy lawmakers unveiled as the 2019 session started (start at the 2:38 mark).
  • Cobb County Commissioner Lisa Cupid, a GFAF board member, says the City of Atlanta’s transparency problems were an eye-opener for other local governments and describes how agencies should respond to open records requests from citizens (6:32).
  • The Atlanta Journal-Constitution’s longtime statehouse journalist James Salzer wants the Legislature to abide by the same transparency laws that lawmakers have placed on local governments (9:25).
  • Marissa Dodson, public policy director of the Southern Center for Human Rights, talks about the role of statewide Accountability Courts and data available to the public to measure their success (16:42).
  • First Amendment attorney and GFAF board member Tom Clyde weighs in emerging open

    Tom Clyde

    government issues, including the loss of transparency in school testing and possible added insight into the business operations of many of Georgia’s hospitals (22:25). He also lays out what Georgians don’t know about the proposed changes to voting processes and new voting machines (46:40).

The full video also provides a lively debate about the role of police body cameras and a more detailed conversation about Georgia’s shift to new voting machines and processes.

New City of Atlanta open records approach a ray of sunshine

By Jim Zachary

The city of Atlanta has passed sweeping open government legislation that should be a model across Georgia.

Let’s be clear.

Atlanta did not have a great track record when it comes to open government under its previous administration.

The ordinance passed Monday seems to be a good faith effort to right the ship by Mayor Keisha Lance Bottoms and the current administration.

Essentially, the city will now have an open government ombudsman, a transparency officer, tasked with policing open records compliance.

All city employees who handle public documents will be required to complete open records training.

And a new website will give the public a way to track open records requests in real time.

Along with Mayor Bottoms, give credit to the Atlanta Journal-Constitution and WSB-TV for fighting the good fight, holding Atlanta officials accountable, exposing corruption in city government and negotiating with city leaders for these sweeping changes.

Their reporting led to a criminal investigation of former Mayor Kasim Reed’s administration around the stalling of records requests and even the falsification of public documents.

The media has an important role to play in holding local government accountable.

The AJC and WSB were vigilant in their investigations, the reporting and the follow through.

As a result, a complaint was filed with the Office of the Attorney General and, in turn, Georgia Attorney General Chris Carr called for an unprecedented criminal investigation by the Georgia Bureau of Investigation.

The GBI’s investigative files have now been turned over to the AG’s office.

Violators of Georgia’s open government laws should be prosecuted.

In 1998 the General Assembly gave the Attorney General specific authority to enforce the state’s Sunshine Laws.

Members of city councils, boards of education, county commissions, authorities and local government committees across the state of Georgia should be paying close attention to the egregious actions of previous city officials in Atlanta, the criminal investigation and possible charges, and learn from the steps the current administration is taking to improve public access.

The Georgia First Amendment Foundation, in partnership with the AG’s office publishes Georgia Sunshine Laws: A Citizen’s Guide to Open Government online and the publication is also available in printed form by contacting members of the foundation’s board of directors.

GFAF provides open government training and speakers with expertise on Georgia open government laws, government transparency and First Amendment issues across the state. Local governments, media organizations or your civic group can request training at: Speaker/Training Request.

Jim Zachary

Jim Zachary, a foundation board member, is deputy national editor of Community Newspaper Holdings Inc.

The views and opinions expressed are personal to the author and do not necessarily reflect those of the firm with which the author is associated.

 

Fighting for the First Amendment: What we’re watching now

The Georgia First Amendment Foundation fights to secure and preserve access to public information and proceedings in Georgia. Our work is vital to open government and unfettered newsgathering that benefits all Georgians. Here are a few of the issues we’re keeping an eye on now:

• The Georgia General Assembly has repeatedly passed legislation expanding the secrecy around the state’s negotiations with companies that want to put factories in Georgia. Government officials want to decide what is best for communities without consulting citizens. GFAF advocates for Georgians’ right to know.
• Police are spending tax dollars to acquire body cameras, but then refusing to provide the video to the public. Police agencies are claiming it is their right to prevent the public from seeing the video for an indefinite period of time so long as they say an investigation is “open.” GFAF is working hard to make sure body cameras bring more transparency to policing.
• Convicted criminals are increasingly being permitted to erase past criminal records. GFAF is fighting to make sure these “erasure statutes” do not leave Georgia businesses and citizens at risk of hiring employees who have been found guilty of serious crimes.
• The Georgia General Assembly is delaying public and press access to records related to Georgia college sports. The public has a right to see for themselves what contracts are being signed, what misconduct has occurred and what actions have been taken. GFAF is working to prevent Georgia from imposing such long delays that the right to these records becomes meaningless.
• Georgia courts have recently issued rulings that erode transparency of public hospitals, law enforcement and other institutions. GFAF and First Amendment partners have taken action in the courts to oppose this erosion of public access.
• The rapid pace of digitization of public records has public agencies and institutions increasingly outsourcing their records management to commercial vendors. Without vigilance by GFAF, these vendors drive up cost of public records, thereby limiting access to private citizens who cannot pay commercial rates. GFAF is working to ensure public records are accessible to all citizens.
• Language on Georgia ballots has become increasingly misleading, hampering voters’ ability to make informed choices and reducing government transparency. GFAF is tracking this disturbing trend and investigating what can be done to curb it.

Become a First Amendment advocate and fight for access to public information, government transparency and free speech by becoming a GFAF member today. It’s your right to know.