Health Department Avoids Accountability (Again)

[XLFD]

The Ludington Torch has been trying to get some more information from the District Health Department #10 (DHD#10) on the coronavirus  which has reportedly killed 26 people in Mason County starting on October 9, 2020.  In about a third of a year, one out of every thousand people in the county has allegedly died from Covid-19 and during the midst of this pandemic, rather than help with the vaccinations or keep up with cases and death tallies, DHD#10 took an extra week off for the holidays.

They must have been very busy doing important stuff because they asked for an extension of my FOIA request dealing with records in their possession referencing coronavirus deaths in Mason County.  With their seemingly unauthorized break and extension, I finally received my FOIA response one month after I made it:  "We determined the records you requested are not owned nor possessed by this agency and are not an agency public record."

We called them on it and explained some of the rationale in the article:  "Local Health Department Denies Covid Death Records".  We left off waiting for a response from Kevin Hughes to my appeal.  His response wasn't unexpected from this lazy agency that takes extra time off, extends a FOIA deadline ostensibly because of having to sift through records, and then says:  "There are no records."   

Kevin Hughes responded in relevant part:  "To the extent that Michigan Disease Surveillance System (MDSS) information is available to District Health Department #10 or reported to MDSS by District Health Department #10, and could be considered a public record, any information that identifies an individual is confidential and exempt from disclosure."

He inferred that the county summaries on the DHD#10 website that differentiates deaths just by gender and age range were the only records they had in their possession.  I had done enough research on the MDSS and the info that must be on the records, which included much more data than the two they offer on their website, I replied without showing my full hand:

"Your reasoning is incorrect; your agency has a duty to separate exempt from non-exempt material and make the non-exempt material available (MCL 15.244(1)).  According to your own agents, your agency is notified of Covid-19 deaths within hours by notification from hospitals, the names (if any) provided can be redacted from those notifications to divorce any personal information from these records.  Other such records pertaining to these deaths should be similarly redacted.

I will be filing a FOIA lawsuit regarding your agency's dereliction of duty, Michigan Court Rules gives the plaintiff several choices as to who to serve this on at DHD#10.  Do you have a preference?  I also want an answer of: why was DHD#10 able to take a whole week off at the end of the year?  There appears to have been no reason for doing so, particularly when the State was in a 'health emergency' with Covid-19 going strong.  Do you take responsibility for making that poor decision?"

My explicit threat of legal action seems to have spurred him to seek some legal help, I received a message from an attorney that has a history of being retained by health departments the very next business day, Cathy Jasinski (pictured below).  In relevant part she explained their position:

I am contacting you regarding your Friday February 5, 2021 email to Kevin Hughes, Health Officer, District Health Department #10.  I do not believe that your claims and reading of Michigan’s Freedom of Information Act are correct and would like to prevent needless expenditures of time and resources.

As advised in its initial response, District Health Department #10 does not possess medical history summaries, hospital admissions or treatment records for the Mason County residents that died as a result of the disease caused by COVID-19.  

Of the information in the Michigan Disease Surveillance System that may be considered a public record, I advised that the county of residence, gender and age range is the only non-identifiable and, consequently, potentially non-exempt information that can be provided regarding the Mason County residents that died as a result of the disease caused by COVID-19.  I believe a court would agree, especially given the geographic size of Mason County...

I hope I have sufficiently addressed the incorrect assertions in your email to Mr. Hughes.  If not, please feel free to contact me.  Otherwise, I have been authorized to accept service on behalf of District Health Department #10. 

Attorney Jasinski may have some experience defending other health department cover-ups, but she has several incorrect assertions of her own.  Perhaps she was doing her best to confuse me about service, but she said that she was authorized to accept initial service on behalf of DHD#10.  She then arbitrarily confirmed that county, age range, and gender were the limits of what they could disclose.  The experienced attorney and the DHD#10 leader were amazingly short on authorities backing their assertions, so I dropped them both a short primer and some links the next day:

Ms. Jasinski,

I am not too impressed with your attorney skills when you try to misdirect me to conduct initial service to yourself when MCR 2.105(G)(8) does not allow such service to an attorney who may be retained later on.  Likewise, I find much of the rest of your arguments unconvincing.  Page 5 of the 2021 Health Care Professional's Guide to Disease Reporting (Vaccines (michigan.gov)) has a list of what is included in a report, which must be filed by a physician in regards to Covid-19 whenever they have a confirmed case, whether the patient dies or not.  

If you compare these mandatory report items against the list of PHI (What is Considered Protected Health Information Under HIPAA? (hipaa...) you will find that there are an awful lot of items you are claiming to be exempt that are not.  Here's a short list of mandated report items that are not PHI items:  1) Year of birth, 2) sex (the only item you agree with), 3) race, 4) ethnic origin, 5) estimated onset time of Covid-19, 6) identity of the reporting person, 7) pertinent lab results.

Advise your potential client to follow FOIA law, which requires them to redact exempt information from records that contain non-exempt material.  This would minimally include those initial Covid-19 death reports they viewed and used through the MDSS to make their own reports.  By definition, this makes those reports 'public records' and their non-exempt portions need to be disclosed upon request by the public.  Thank you for your time, I prefer not to use your resources or mine further, other than DHD#10 doing their job of compiling this request and me inspecting those records when they arrive in my E-mail service.

I have waited a couple of business days for a reply, but there has been none.  This likely indicates they want to go against the law and cover up relevant and non-exempt data rather than do their jobs honorably and openly.  One has to wonder why a health department and other state agencies would not release as much data as they could during a pandemic that has killed a thousandth of the county's population, and would be willing to fight a losing battle in court and keep the public ignorant rather than follow the law.  And take an extra (as yet unauthorized) week off in the worst period of a 'pandemic'.

DHD#10 and our state health & human services department are hiding information from the public that they should be revealing, at least upon request.  They wouldn't be doing that without a good reason, and it's more than them just being lazy.  

[Willy]

Just more BS from a State agency. What good reason can they have for withholding public records on Covid? Have you considered contacting news agencies in the District #10  and see if any of them have received pertinent information on the statistics regarding Covid. There has to be some agency that has managed to break through the wall of silence. If not then that means this has turned into a cover up. I noticed in the Manistee News Advocate that there has been no Covid patients at Manistee Hospital since Jan, 23rd. I bet that will be the case in most District #10 hospitals. 

Another thing that I am curious about is, how much in legal fees has been paid by taxpayers to defend the State Health agencies in their suppression of information? Also the rate of vaccinations is slower than a pregnant turtle on sleeping pills and by my calculations it will be well into 2022 before the vaccination process is completed, if at all. Thanks Biden and Whitmer.

[XLFD]

It doesn't make any sense; they want to enforce a greater level of confidentiality thru privilege and HIPAA dealing with Covid-19 records when the general protocols for both during the times of a pandemic are to grant less patient privacy so as to better contain and control the outbreaks.  It's been a wicked game all along, where doctors, media and citizens who see through the fog are minimalized by the usual syndicratic forces sowing fear and discord.

[stump]

  It seems to me that the state would like for the local county district Health Dept. to put out the numbers of cases and deaths as evidence of there is a reason to take precautions in the county or even the city against the virus . Without information most people think it is a big lie and no reason to worry about getting it. Government control, more and more. Do as I say, not as I do and I'll let you know when it's to late.

[XLFD]

Exactly, and if the 24 coronavirus deaths of 60+ years and older people and hundreds of cases that have occurred since October in Mason County that we have heard nothing about except as a tally, were primarily based in one or more AFC homes or apartments, the public would have no inkling of the dangers they face when selecting a nursing home super-spreader facility for their parent or when visiting a friend at an apartment complex hot with covid-19 cases.  

The health department is either failing, or willing to put patient privacy (as regards the general public) over stopping the spread.