A City Council majority is blocking important discussion on COVID-19 transparency
Note: This column has been updated to include information that the state of Texas on Monday began providing information on COVID-19 infections at nursing homes, assisted living centers and state-run mental health facilities.
Two things are most important when dealing with a pandemic — quality health care and accurate, actionable information about what’s happening with the disease. Unfortunately, El Pasoans have struggled to gain full access to critical information about COVID-19 in our community.
Most recently, the City Council voted 5-4, with Mayor Dee Margo breaking a tie, to reject a proposal to provide more details about the location of COVID-19 “clusters” in El Paso. Perhaps most disturbingly, no one in the majority explained their reasoning before voting.
The vote came after the City Council went into closed session to consult with the city attorney. After the vote, Margo indicated that it was illegal for the city to release information about where clusters of COVID-19 were occurring.
Margo repeated that position in a letter to the editor for the publication El Paso Inc.: “I broke a tie vote at Tuesday’s City Council meeting on releasing names of businesses with COVID-19 clusters, defined as two or more individuals testing positive, because the release of such information is prohibited by state law (Texas Law Sec. 81.046) and can only be released for statistical purposes.”
The mayor is wrong in his interpretation of the state Health and Safety Code. Here’s what the relevant section of the law says: “Medical or epidemiological information, including information linking a person who is exposed to a person with a communicable disease, may be released … for statistical purposes if released in a manner that prevents the identification of any person …”
Other cities — and the state of Texas — are releasing site-specific information on clusters
Currently, the El Paso Department of Public Health reports information about COVID-19 clusters in general categories, such as health-care facilities, nursing homes, detention centers and schools. It doesn’t not identify individual facilities.
The state law allows for the release of statistical information that doesn’t identify individuals — including the number of infectious disease cases at a specific location. The city of San Antonio, for example, provides updates on COVID-19 infections at nursing homes as part of its daily update on the virus’ impact on the community. Dallas County and Tarrant County have been releasing such information since April.
The federal agency that regulates nursing homes requires them to provide weekly updates on COVID-19 cases and deaths, and has been publishing the self-reported data for all nursing homes in the country since June. We haven’t seen video of Texas Rangers perp-walking the feds for violating state law, because the release of statistical information about individual nursing homes is allowed in Texas.
However, the accuracy of the self-reported data from nursing homes is questionable. If El Paso — like other Texas cities — made health department COVID-19 data available to its residents, we would have a way of checking the self-reported data to better understand how individual nursing homes are being affected by COVID-19. That information is crucial to people deciding where to place a loved one for long-term care.
The state of Texas on Monday been providing self-reported COVID-19 data on cases and deaths for nursing and assisted-living facilities, as well as state-supported living facilities and psychiatric hospitals. This came after a July 6 ruling by the Texas Attorney General’s Office that rejected almost all of the arguments by the Texas Health and Human Services Commission for keeping the data secret.
The El Paso Department of Public Health has released statistical infection information about specific locations in the past, most recently in August and September 2019, when it was responding to tuberculosis exposures at Canutillo High School.
The City Council members advocating for more specific information about COVID-19 clusters cited some of these examples during the debate. Margo and the council members who wound up voting against additional transparency said nothing in response.
City acknowledges it can release more detailed cluster data
The El Paso City Attorney’s Office has previously said that state law allows for the release of COVID-19 cluster statistical information. That acknowledgment came June 23, a month before the City Council vote, in response to a request I made for cluster data that included facility names. The request asked the city to redact any information that could identify an individual.
The City Attorney’s Office sent a letter to the Texas Attorney General’s Office seeking to withhold the information I requested. The city acknowledged that the law permitted the release of such information, but did not require it. The city said it was exercising its discretion and not releasing the information. (The attorney general has not yet ruled on the city’s request.)
“Requestor (that’s me) 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 …”
Joseph Larsen of the Houston law firm Gregor Wynne Arney is one of the state’s most experienced attorneys in government transparency law. He reviewed the city’s letter to the attorney general at my request. He said the city attorney is arguing that the city government has total discretion on releasing cluster information, and that it can’t do so without identifying infected individuals.
“So the city is basically arguing that it would be revealing the identities of specific persons if it released this information. This, of course, is faulty logic and simply an excuse not to release more specific cluster information,” Larsen said.
Saying 50 people in a jail or nursing home have tested positive for COVID-19 doesn’t identify a specific person. In rare instances where statistical information might identify an individual, the city could redact those specific cases. The federal government has a long-established system for protecting individual health information in statistical data.
The City Attorney’s Office has said the city can release statistical information about clusters, but it won’t provide identification of specific facilities. Margo claims that state law bars release of location information. El Paso’s release of specific TB cluster information in 2019 and release of nursing home COVID-19 data this year by other cities and the state demonstrate that the mayor is incorrect in his explanation.
The public deserves a conversation that hasn’t happened
Since the city can release more specific cluster information under Texas law, that should set the stage for a discussion over whether it should or shouldn’t do so.
Four members of the City Council — Cassandra Hernandez, Peter Svarzbein, Alexsandra Annello and Henry Rivera — sought to have that conversation at the July 21 council meeting. They explained their rationale, saying release of more specific cluster data would empower El Pasoans to make decisions about their health.
Margo and four council representatives — Sam Morgan, Isabel Salcido, Cissy Lizarraga and Claudia Lizette Rodriguez — evaded the debate. They said nothing other than “no.”
In his letter to El Paso Inc., Margo at least provided some rationale as to why the city shouldn’t release more specific cluster information. “For example, assume you own a small family restaurant and you have implemented all safety protocols, but two of your employees test positive from community spread due to a family or social gathering – and not from your restaurant. The city would publicly disclose your business as having a COVID-19 outbreak.Think how devastating this would be, without any real impact on ‘flattening the curve.’”
That argument has merit. The mayor should have made it at the City Council meeting so it could be discussed and debated.
Other council members may have pointed out that the mayor is imposing his judgment over that of individual El Pasoans, who might prefer information that allows them to make choices about their own health. Some council members could have pointed out that restaurants account for less than 2 percent of the 2,500 “cluster cases” in the most recent report.
Those with opinions different from the mayor may have said more than 800 cluster cases — a third of the total — have been in government facilities such as detention centers and schools. Another 1,110 cluster cases are in nursing homes or health-care facilities that rely heavily on Medicare and Medicaid funding from taxpayers. Some of those facilities are owned by the state or county.
The city’s action may protect a mom-and-pop restaurant by withholding specific cluster information, but the far bigger impact is to shield information about facilities owned or directly supported by taxpayers.
Last week, the Department of Public Health reported that 20 new COVID-19 cases were in school-based clusters. Since the beginning of July, the number of school-based COVID infections has grown from 29 to 71.
As parents make decisions on whether to allow their children to return to classes in early September, many may like to know whether there are COVID-19 clusters at their child’s school. The city’s position is that parents don’t need and aren’t entitled to that information from the Department of Public Health.
Decisions about what statistical health data to make available to the public are complex. The best decisions will come with robust, transparent debate.
Right now, the majority of El Paso’s City Council has chosen to side-step the public conversation about whether to release more detailed information about COVID-19 clusters. Instead, they hide behind the falsehood that it would be illegal to do so.
It’s not too late to have the discussion about what information El Pasoans need about the pandemic. All it takes is political will.
Cover photo: The city provides general information about COVID-19 clusters each week, but has refused to provide specific information on where those clusters are occurring.