While the Utah County Health Department says a section of the Utah Code prohibits them from releasing the names of two businesses that ignored COVID-19 guidelines and instructed sick staff to work, an attorney who has researched open records laws and litigated public records cases in Utah rejects such an interpretation of state law.
County executives released a statement on Monday evening that said contact tracing performed by the Utah County Health Department found that two unnamed businesses in the county “instructed employees to not follow quarantine guidelines after exposure to a confirmed case at work and required employees with a confirmed COVID-19 diagnosis to still report to work.”
Both state and county health departments have said releasing the names of the businesses to the public would violate the privacy of the businesses and employees.
In a Twitter thread, the Utah County Health Department said the information “is strictly confidential under Utah Code 26-6-27 and as such we are not permitted to disclose this information (names of individuals or names of businesses as that could reasonably lead someone to identify the individuals).”
Section 26-6-27 of the Utah Code states that information collection 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.”
Ed Carter, director of Brigham Young University’s School of Communications and an attorney who has litigated Government Records Access and Management Act (GRAMA) cases in Utah, said he doesn’t interpret the section of Utah Code as protecting the identity of businesses.
“The county is actually not restricted by UCA 26-6-27 from releasing the names of the businesses,” Carter said on Friday in an emailed statement. “What the statute focuses on is the identity of individuals. So the names of the businesses could potentially be released without identifying any particular individuals.”
In the Twitter thread, the Utah County Health Department said neither of the businesses “conduct direct interactions with members of the public and as a result, the risk to the public from the businesses is generally low.”
“I don’t buy that businesses, even those that don’t directly interact with the public … have any kind of reasonable privacy expectation in this case,” said Carter, who spoke to the Daily Herald outside of his capacity as a BYU employee. “Especially not when the county already has singled out two businesses among all the businesses in Utah County as the ones that ignored health recommendations and had resulting mass infections.”
Under the Health Department’s interpretation of Utah Code, the code “already has been violated by the county by virtue of them having told the public about the two businesses and some of the details of the infections in those businesses,” Carter said, adding that he “personally wouldn’t read the statute so strictly as to say the county already has violated it.”
“(But) the county can’t have it both ways,” he said. “They can’t reasonably expect that they can release some details of the infections at the two businesses (which they already have done) and then turn around a couple of days later and claim to be wholly prevented by statute from sharing the identity of the businesses or any other details.”
Carter added that he didn’t interpret Utah Code as requiring that information such as the names of businesses be made public.
“I would say overall that my reading of UCA 26-6-27 would allow the county health department to release the names of businesses if it wants,” said Carter. “At the same time, the statute does not require that kind of disclosure. So it’s really up to the health department.”
When asked about the Utah County Health Department’s interpretation of the section of Utah Code, Utah Executive Director Ralph Clegg said the Health Department was following legal guidance from the Utah County Attorney’s Office.
“We’re under the obligation to follow what our attorney says, not another attorney’s opinion,” Clegg said in an interview on Friday. “And so we’ll follow what our attorney says, which relates to the fact that, in this kind of case, if you identified that business, you’ve then, in many ways, identified the employees of that business … (who) then lose their privacy.”
Carter acknowledged that releasing the names of the businesses may allow some people to figure out who some employees are, “but the county would not have actually violated the statute by releasing the business names, in my perspective,” he said.
The Daily Herald filed a public records request on Wednesday requesting documents related to contact tracing conducted by the Utah County Health Department.
In a response to that records request emailed to the Daily Herald at 5:09 p.m. on Friday, Utah County Records Officer Laura Mendoza said the request had been denied since the “requested information ... was obtained during an epidemiological investigation.”
“Subsequently, all information is strictly confidential under Utah Code 26-6-27,” Mendoza said.
Mendoza added that Utah County had received “some limited information” about one of the businesses from the Utah Department of Agriculture and Food, in addition to the Utah Department of Health, but couldn’t release the information since it was obtained pursuant to
During a press conference on Wednesday, Utah Department of Health State Epidemiologist Angela Dunn said disclosure of the names of the businesses was unnecessary since “neither of these two businesses have direct interactions with the general public.”
“Therefore, the risk to the general public is very, very low,” Dunn said.
Carter said that, in his opinion, the balance between the “general public interest in disclosure of government information” and the privacy of those involved “should always tip, when reasonable and possible, toward public disclosure” and that “we as citizens need information to make decisions about our lives and our leaders.”
“I would say this case is as much about how the county elected officials and health officials are responding to the crisis as it is about the two businesses in question,” said Carter. “Therefore, we need as much information as possible about the situation so we can determine if the county leaders are doing the job we want them to do.”