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Attorneys: State unlawfully withholding COVID-19 information, using false facts

Arizona Governor Doug Ducey and Dr. Cara Christ
Posted at 5:37 PM, May 21, 2020
and last updated 2020-05-22 10:10:19-04

Attorneys for media outlets believe the state is unlawfully withholding long-term care COVID-19 data and argue the state is using undeniably false facts and mischaracterizations to withhold vital information from the public, according to newly-filed court documents.

The media’s final motion was filed in Maricopa County Superior Court ahead of oral arguments on May 27 in a lawsuit against the Arizona Department of Health Services and its director, Dr. Cara Christ.

“If there was ever a time for prompt disclosure of public records in accordance with Arizona law, it is now, when such information could mean the difference between life and death,” wrote David Bodney, attorney for ABC15, the Arizona Republic, 12 News, and AZ Family.

The news organizations filed a joint lawsuit against the state in early May for refusing to release the names of long-term care facilities with COVID-19 cases and deaths.

Reporters have been seeking the general information since early April. Since that time, hundreds of residents have died.

MAP: Known coronavirus cases, deaths at long-term care facilities in Arizona

So far, data released by Maricopa County shows that more 73 percent of coronavirus deaths in the Valley are residents of long-term care.

Arizona officials have used a series of shifting reasons for why they won’t disclose the facility names and number of cases. Last week, the state’s two outside law firms laid out four main legal arguments on their behalf:

  • Officials believe state law makes communicable disease-related information confidential.
  • Officials believe state law makes any medical information from which a person might be identified confidential.
  • Releasing the information could harm long-term care facilities’ business and competitive positions.
  • Privacy interests outweigh any presumption of disclosure to the public.

Public record laws in Arizona are strong and all records are presumed open to the public. It’s generally the state’s burden to prove otherwise.

The media’s attorneys believe the state’s arguments to deny release of the long-term care names and numbers are over-broad and distort state statutes.

They also criticize the state for invoking the publicity from a rape case of an incapacitated woman at Hacienda HealthCare as part of their defense.

“Defendants overstate the scope of the Records Requests to suit their arguments by contending Plaintiffs seek individuals’ personal medical information. They do not,” Bodney wrote. “Defendants further assert they are prohibited from disclosing the records under a patchwork of no fewer than nine Arizona statutes.”

Bodney argues that Arizona’s interpretation and stretching of state statutes would make the state’s own COVID-19 data dashboard on its website unlawful as well as Governor Doug Ducey’s May 4, 2020 executive order.

Under legal pressure from the media, Ducey ordered that long-term care facilities must notify residents, family, and any potential residents who officially fill out an application.

“Defendants’ argument invoking this recent development exposes the fallacy of Defendants’ claimed statutory bar to disclosing the Public Records,” Bodney wrote of Ducey’s executive order. “If Arizona law actually barred disclosure of this information, Defendants would be similarly barred from disclosing that same information to an arbitrary sub-set of the public.”

The state also claimed that releasing the information could harm businesses’ competitive positions. In their objection to our lawsuit, Arizona’s lawyers used the publicity surrounding the Hacienda rape case as an example.

“Because of publicity (albeit in connection with information not protected from disclosure like the information in this case), multiple directors of nursing resigned, and Hacienda experienced significant turnover among middle and upper management,” the state’s objection said. “Hacienda had trouble meeting its core staffing needs, which is critical, because congregate settings rely on staffing agencies to provide emergency staffing coverage, and staffing agencies would not work with Hacienda. Hacienda’s employees experienced significant hostility, harassment, and safety threats. There was even a shooting in Hacienda’s parking lot.”

The shooting was a domestic violence incident. Police confronted a man who was attacking his ex-wife, who was a nurse, in Hacienda’s parking lot.

The shooting had no relationship to the rape case or media publicity.

“The comparison is undeniably false,” Bodney wrote.

He later added, “Suffice it to say, the Hacienda case involved a facility that somehow allowed one of its nurses to commit heinous crimes against one of the most helpless residents in our society.”

Judge Christopher Coury is presiding over the case.

Contact ABC15 Investigator Dave Biscobing at