A state attorney general ruling will allow the city of El Paso to withhold the names of facilities where COVID-19 outbreaks.

A Houston attorney with extensive experience in transparency laws criticized the ruling.

“The AG is giving this only a very surface sketch and is basically accepting whatever the city is telling it,” said Joseph Larsen of the Houston law firm Gregor Wynne Arney. “So we blame the AG for blindly following what the city says. We should (also) blame the city for what I think is misrepresenting the meaning of the statute to the AG and for not acting in the interest of public health.”

City Attorney Karla Nieman, in a statement to El Paso Matters, said the city has followed state law in its handling of COVID-19 data. “The Attorney General’s Office has agreed with the city’s actions. The city has worked to balance the health and safety of our community while protecting the privacy of individuals. The city has released as much information as possible to keep the public informed but at the same time keep the confidentiality of all the parties involved.”

The city provides some statistical data on outbreaks by types of facilities, such as detention centers and nursing homes. But it doesn’t identify specific facilities. Four of the eight City Council members recently favored release of the names of facilities with outbreaks, but Mayor Dee Margo cast a tie-breaking vote to prevent release of the information.

The issue stems, in part, from an El Paso Matters open records request submitted in May 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, but did not ask for the names of individuals. 

City attorneys, in a June 23 letter to Texas Attorney General Ken Paxton, 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, according to the letter.

Larsen said the city’s interpretation is flawed.

“I’ll tell you why that argument doesn’t hold water — it doesn’t give the city discretion. It doesn’t say the city may release information, it says the ‘information may be released,’” Larsen said. “That statute merely means that it’s not confidential. It doesn’t give the city discretion. It states the information ‘may’ be released. It’s not conferring discretion.”

The Aug. 28 letter from Paxton to the city on the ruling states in part, “the information at issue was created by or provided to the city’s Public Health Department during investigations under Chapter 81 of the Health and Safety Code. Based upon your representations and our review, we agree the submitted information is subject to section 81.046. You also state the release provisions of section 81.046 are not applicable. Accordingly, the city must withhold the submitted information under the Government Code in conjunction with section 81.046(b) of the Health and Safety Code.”

However, the city did not state in its letter that none of the release provisions of section 81.046 were applicable. The city specifically said in its letter that Subsection (c) (1) was applicable. That is the subsection that allows for the release of such information for “statistical purposes.”

Larsen said the attorney general has issued nearly identical letter rulings to governments across the state.

“The AG’s letter rulings were all identical (to cities), so I have to assume the AG knows what it’s doing,” Larsen said. “It’s consistently dealing with these things exactly the same way and the AG is not looking very closely at this.”

El Paso Matters CEO Robert Moore sent a letter to the attorney general in response to the ruling pointing out that the ruling does not address the release provision the city cited.

“As a result, you have turned what is, at best, a discretionary exception (Subsection (c) (1)) into a mandatory exception. That is particularly concerning because local governments across Texas are using that subsection to provide their constituents with precisely the kind of statistical information I am seeking from the city of El Paso,” the letter states.

Larsen said he agrees with Moore’s argument.

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.

Larsen said, although the ruling does not set a precedent and is only applicable to the facts and information provided for El Paso, the result could lead other cities to follow suit in efforts to withhold information critical to public health during the pandemic.

He said it could also cause cities that are currently releasing information to change course because “they don’t have to.”

“This is fundamentally and basically a public health issue and the only way public health issues get fixed and any kind of issue like this (get fixed) is through transparency,” Larsen said.