The city of El Paso will continue to withhold the names of facilities and businesses that have clusters of COVID-19 positive cases after Mayor Dee Margo broke a 4-4 tie vote at City Council on Tuesday.
City Representatives Cassandra Hernandez, Peter Svarzbein and Alexsandra Annello placed an item on the agenda for Tuesday’s meeting to disclose information including the names of facilities and businesses that have outbreaks or clusters of positive cases.
Hernandez, Svarzbein, Annello and city Rep. Henry Rivera voted in favor of releasing the information to the public, City Reps. Sam Morgan, Isabel Salcido, Cissy Lizarraga and Claudia Lizette Rodriguez voted against it. Margo broke the tie vote in favor of not releasing the information.
City officials including Dr. Hector Ocaranza, the city/county health authority, said there could be privacy violations and that exposing the names of the facilities or businesses would not help prevent the spread of COVID-19. Other major Texas cities have routinely provided specific locations of COVID-19 clusters.
The city and county COVID-19 result website has a weekly report for infection clusters that include numbers of cases at elderly care facilities, correctional-detention facilities, health-care facilities, businesses, call centers, restaurants, bars and day-care facilities among others. But the facilities are not identified by name.
City has identified infection clusters in the past
“Disclosing a specific name that is city wide is not going to help and is not going to be pertinent,” Ocaranza said during the meeting. He and other officials said the Department of Public Health has a longstanding policy of not identifying places with clusters of infectious diseases.
Svarzbein and Annello challenged that assertion, pointing to a press release issued in August 2019 regarding a tuberculosis infection investigation involving Canutillo High School where 190 people were thought to be exposed.
“Why is it that we were able to do that legally, but are going to be told we are not going to be able to do it legally for COVID (19)?” Svarzbein said. Ocaranza never directly responded to the question.
Hernandez said releasing the information will help protect vulnerable El Pasoans.
“The community needs to know where these large clusters are in the community so that they can contact their families,” Hernandez said. She added that publishing the information is not designed to shame businesses.
Annello said many of her constituents are concerned that the information is not being released and employees are concerned they are not being properly informed of COVID-19 cases at their workplaces.
“From day one to literally today, people are confused and scared and they do not feel protected by their employers,” Annello said.
Conflicting legal explanations
None of the council members who voted against making the information public explained why they opposed specifically identifying COVID-19 clusters.
The council vote against disclosure came after a one-hour executive session. City Attorney Karla Nieman said she had informed the council that the city could not legally release the names of facilities with COVID-19 clusters.
However, the city attorney’s office has previously acknowledged that state law allows the city to release such information but doesn’t require it to do so. So the city has chosen not to release the information, the city attorney’s office said in a June 23 letter to Texas Attorney General Ken Paxton.
The letter was in response to a May 25 open records request from El Paso Matters seeking more information on COVID-19 clusters in El Paso. The request sought the names of facilities or businesses identified by the Department of Public Health as a COVID-19 cluster.
The city attorney’s office sought permission from the attorney general to withhold the information sought by El Paso Matters. The city said state law permits the release of medical or epidemiological information “for statistical purposes if released in a manner that prevents the identification of any person.”
But the city attorney said the law grants governments the discretion to withhold such information if it so chooses, and its discretion can’t be challenged.
“Requestor may wish to have the names of specific locations of COVID-10 (sic) infections. Further, Requestor may believe that the information can be released in a manner that prevents the identification of any person. However, Requestor’s wish to have the requested information … cannot be substituted for the city’s statutorily-delegated authority to make proper determinations …” said the letter from Assistant City Attorney Roberta Brito.
The attorney general has not yet ruled on the city’s request to withhold the cluster information from El Paso Matters.
Hernandez said she will be placing an item on an upcoming City Council meeting agenda to revisit the topic of identifying facilities with COVID-19 clusters.