The California Department of Health Services, Ongoing Investigations, and Public Records
Q: I’m a reporter tracking down the causes of an E coli outbreak. The California Department of Health Services isn’t releasing info because it considers its investigation ongoing. Are health investigations exempt? I’m not sure how release of information might jeopardize a scientific investigation. How should I phrase my request to get the documents as soon as possible?
Also – as part of this request I’d like to get my hands on epidemiological surveys: Basically lists of what people ate before they got sick. These are part of the investigation, but they are also personal medical records. I’m worried they will try to keep all of the investigative records private. Even the lab tests looking at the DNA of the E. coli – these were government tests done in the public interest with taxpayer money (and so should belong to the people of California) but you could also make the case that because those bacteria came out of an individual’s feces those test results belong in the patient’s file, rather than the public record. I can ask them to redact personal information. Is there anything else I can write to head off the patient privacy argument?
A: The California Public Records Act (“PRA”) provides that public records are presumptively open to the public, unless exempt from disclosure under the PRA. The PRA exempts from disclosure “[p]ersonnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy.” Gov’t Code § 6254(c). As you noted, to the extent that the records you seek contain this type of information, the California Department of Health Services can properly withhold such information from the public. (As you also noted, though, the fact that a document contains information tangentially related to an individual’s medical condition does not automatically qualify it for exemption under the PRA, particularly where you have already offered to accept versions of documents with personal information redacted.)
Moreover, it sounds like the department is stating that such records are being withheld not because they contain medical or other private information, but because they are a part of an ongoing investigation. If so, it may be that the agency is taking the position that they can properly assert the exemption found under Government Code section 6254(f), which exempts investigative files in the possession of certain agencies. The public agencies entitled to assert such exemption, however, are those with a general law enforcement mission (the attorney general, the Department of Justice, state and local police organizations), and any state or local agency engaged in an activity with a “correctional, law enforcement or licensing” purpose. Gov’t Code § 6254(f). This exemption would not seem to apply to the CDHS.
You might want to try contacting the agency again and submitting a written PRA request. The PRA requires agencies to provide you with the documents requested, or notify you that your request has been denied, within 10 days. Gov’t. Code § 6253. You might also want to remind them that if the written request is denied, the agency is obligated to back its denial by citing an exemption in the PRA or other state or federal law allowing it to withhold the records you seek. Gov’t code § 6255. This might allow you to better determine whether the agency can properly assert exemptions to withhold the records you seek.
A sample PRA request is available on CFAC’s website at the following link: http://www.cfac.org/templates/cpraletter.html.