Voice of San Diego v. Superior Court ( 2021 )

Filed 7/16/21
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
VOICE OF SAN DIEGO et al., D078415
Petitioners, (San Diego County
Super. Ct. No. 37-2020-00026651-
v. CU-WM-CTL)
THE SUPERIOR COURT OF SAN
DIEGO COUNTY,
Respondent;
COUNTY OF SAN DIEGO,
Real Party in Interest.
ORIGINAL PROCEEDINGS in mandate. Joel R. Wohlfeil, Judge.
Petition denied.
Law Office of Felix Tinkov and Felix M. Tinkov, for Petitioners.
Katie Townsend, Bruce D. Brown and Shannon A. Jankowski for
Reporters Committee for Freedom of the Press, as Amici Curiae on behalf of
Petitioners.
No appearance for Respondent.
Office of County Counsel, Jeffrey P. Michalowski, County Counsel, for
Real Party in Interest.
In this matter, we consider a request made by three news media
organizations under the California Public Records Act (Gov. Code, § 6250 et
seq.; PRA) 1 to obtain unredacted records from the County of San Diego
(County) that show the exact location of disease outbreaks during the
COVID-19 pandemic. Specifically, the County maintains a spreadsheet
showing each outbreak of COVID-19 in the County, which includes the
applicable dates of the outbreak, the city where it occurred, the number of
people involved, and whether the outbreak occurred in a community setting,
a skilled nursing facility or a non-skilled congregate living facility. When
releasing the spreadsheet to the public, the County redacts the columns that
would show the specific name and address of each outbreak location.
Nevertheless, for each outbreak in a community setting, the spreadsheet
shows the type of location where the outbreak occurred, such as a restaurant,
a grocery store, a gym, a salon, or a residence, among others. In their
petition for an extraordinary writ, Voice of San Diego, KPBS Public
Broadcasting (KPBS), and San Diego Union Tribune (collectively, petitioners)
contend that the trial court improperly concluded that the County is entitled
to redact information about the exact location of the outbreaks.
As we will explain, we conclude that the County properly withheld the
specific location of COVID-19 outbreaks under the catchall exemption in the
PRA. That provision allows a public agency to withhold a public record when
it meets its burden to prove “on the facts of the particular case [that] the
1 Unless otherwise indicated all further statutory references are to the
Government Code.
2
public interest served by not disclosing the record clearly outweighs the
public interest served by disclosure of the record.” (§ 6255, subd. (a).) The
County submitted uncontradicted evidence, contained in the declaration of its
public health officer, Dr. Wilma Wooten, that disclosing the exact name and
address of an outbreak location would have a chilling effect on the public’s
willingness to cooperate with contact tracing efforts. Although we do not take
lightly the countervailing public interest in obtaining access to public records,
and we recognize the vital role that the news media plays in obtaining and
disseminating information in a time of crisis, the County has convincingly
shown that the value of its ability to conduct effective contact tracing in the
midst of a deadly pandemic clearly outweighs the public’s interest in
obtaining information about the exact outbreak locations.
Accordingly, we deny the petition for an extraordinary writ.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The original version of the petition for writ of mandate and complaint
at issue in this proceeding was filed by Voice of San Diego against the County
on July 29, 2020. The petition alleged that on April 10, 2020, Voice of San
Diego sent a request under the PRA to the County, which sought “[a]ny and
all copies of epidemiological reports sent to the state of California showing
the results of San Diego County’s investigative contact tracing efforts since
Jan. 1, 2020, to present.” The County denied the request on the same day,
with the following explanation: “County staff is focused on providing
essential services to County residents for the foreseeable future. Due to this
ongoing emergency, staff that may have responsive records do not have the
capacity to search for records responsive to your request. Under California
Government Code section 6255[, subdivision ](a) the public interest in
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receiving records at this time is outweighed by public interest in having
County personnel free to handle this ongoing emergency. We do not
anticipate responding to your request until the emergency order has been
lifted.” The County also provided Voice of San Diego with a link to the
website where the County provided the public with updates regarding the
COVID-19 pandemic. Voice of San Diego sought a writ of mandate, a
preliminary and permanent injunction and declaratory relief, all of which
were directed at obtaining an order requiring the County to produce the
records requested on April 10, 2020.
On September 10, 2020, an amended petition for writ of mandate and
complaint was filed, which added KPBS as a petitioner. The amended
petition alleged that on July 15, 2020, KPBS submitted a request to the
County under the PRA, which sought records showing “[t]he location of all
businesses or other entities where COVID-19 community outbreaks have
occurred in San Diego County from March 1, 2020 through July 15, 2020,”
along with “the date (or date range) of each outbreak and how many cases
were identified in each outbreak.” On July 17, 2020, the County denied
KPBS’s request with the following explanation:
“The County will only identify a specific location if there is
an ongoing risk to public health. For example, in the past there
has been instances of e-coli contamination and cases of
Tuberculosis where public health was threatened and the health
officer identified the specific location. In the instance of COVID-
19 outbreaks, none have been determined to be an ongoing threat
to the public health.
“Another consideration is we don’t want businesses and
others to be reluctant to come forward to report. If businesses
are called out in a manner that they feel is punitive, other
businesses are less likely to be upfront about concerns related to
potential outbreaks in the future, thereby impacting both the
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ability to trace and efforts to combat COVID and other infectious
diseases.
“Moreover, while State licensing agencies have been able to
provide this specific type of data, the County’s Public Health
Officer is not able to do so. Information publicly disclosed by the
Public Health Officer regarding communicable disease
investigations must be de-identified to prevent it from being
linked to a particular individual. (Title 17, Section 2502[, subd.]
(f)(3) of the California Code of Regulations.) Providing this sort of
information has the potential to lead to either the identification
of physical residential or work addresses of people who have
contracted a disease, which would too closely link the disclosure
to particular individuals. Under Government Code section 6254[,
subdivision] (k), the Public Health Officer may not provide these
addresses in response to a Public Records Act request.”
Although the County did not provide location information for the
outbreaks, it did provide a list of the outbreaks by sector, separately showing
the total number of outbreaks through July 17, 2020, in “Restaurants/Bars”;
“Construction/Manufacturing/Retail Businesses/Gym”; “Healthcare Settings”;
“Private Residences”; “Church Outreach or Social Club”; “Grocery Store”;
“Food Processing Facilities”; “Government Facilities”; “Restaurants”; “Hotel,
Resort or Campground”; “Community-Based Organization/Daycare Settings”;
and “Hair Salons/Barbershops.”
The amended petition also alleged that KPBS had obtained from the
City of El Cajon a County-prepared document, dated April 18, 2020, which
consisted of a spreadsheet showing the names and locations of businesses
experiencing COVID-19 community outbreaks throughout the County, along
with the dates of those outbreaks and other related statistics. According to
the amended petition, the document obtained from the City of El Cajon
confirmed the existence of public records responsive to KPBS’s request. The
amended petition sought an order requiring the County to release records
5
responsive to the requests of both Voice of San Diego and KPBS pursuant to
the PRA.
On September 28, 2020, a second amended petition for writ of mandate
and complaint was filed, which added San Diego Union Tribune as a
petitioner. The second amended petition alleged that on September 3, 2020,
San Diego Union Tribune submitted a request to the County under the PRA,
which sought the County’s “electronic list of community outbreaks,” including
the fields that showed the “Name of location where outbreak occurred,” the
“Address of location where outbreak occurred,” the “City where outbreak
occurred” and the “ZIP code where outbreak occurred.” The County
responded to San Diego Union Tribune by explaining that it would release
the spreadsheet, but it would redact the name and address information for
the location of the outbreaks. An exhibit attached to the second amended
petition shows that the County provided the following explanation for the
redactions:
“There is a significant government interest during a
pandemic in the candid exchange of information between those
linked to these outbreak locations and the Public Health Officer’s
disease investigators. Contact tracing only works when those
that are being interviewed are completely honest and
forthcoming with relevant information. The Department of
Public Health’s investigators assure those they interview that the
information they provide will be kept confidential. Many people
investigators speak with are fearful that providing the name of
the location where they were potentially infected could have
negative effects on that location whether it be a church, a
restaurant or a place of business. Additionally, it has the
potential to reveal the diagnosis of particular individuals if
disclosed. Releasing the names of these locations and the
addresses will have a chilling effect on the open communication
necessary to ensure the Public Health Officer is able to effectively
combat active outbreaks.
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“The Public Health Officer must also take measures to
protect the medical privacy of those with a communicable disease
diagnosis. Specifically, care must be taken to avoid linking a
diagnosis to a specific person, or persons—unless doing so is
necessary during an active investigation. Naming specific
locations, which in many cases is a workplace, will focus in on a
potentially small pool of particular individuals. In the field of
health privacy, publicly revealing that level of detail is too close
of a link to the medical information of specific individuals.
“The Public Health Officer has released certain
communicable disease outbreak locations on occasions where a
determination has been made that doing so is necessary to
prevent the spread of a disease or occurrence of additional cases.
For outbreak locations subject to this request, it has been
determined that the public release of specific locations is not
necessary to prevent the spread of COVID-19, or the occurrence
of additional cases. In most instances, the outbreak location
information is reported and added to this list well after the
outbreak has already taken place, so releasing the names now
would do little to protect the public, especially when the business
is cooperating with the Public Health Officer, exposed individuals
have been notified, and measures have been taken to mitigate the
risk of an additional outbreak.
“The Public Health Officer has made a determination to
release the additional information in this redacted report to
benefit the public[’s] understanding of disease patterns, and to
communicate new knowledge about COVID-19 to the community.
However, the redacted information consisting of names and
addresses of locations will too closely link this information to
specific individuals. In addition, for the reasons stated above, the
public interest in not disclosing the specific outbreak locations
clearly outweighs the public’s interest in releasing this
information.”
The second amended petition sought an order requiring the County to
release records responsive to the requests of all three petitioners pursuant to
the PRA.
7
On September 28, 2020, petitioners filed an opening brief in support of
the relief sought in their second amended petition for writ of mandate and
complaint.
Petitioners’ opening brief set forth two main arguments. The first
argument focused on the County’s denial of Voice of San Diego’s April 2020
request for “[a]ny and all copies of epidemiological reports sent to the state of
California showing the results of San Diego County’s investigative contact
tracing efforts since Jan. 1, 2020, to present.” Petitioners argued that the
County improperly denied this request, made during the early stages of the
pandemic, based on its lack of sufficient staffing capacity to search for records
during an emergency. The opening brief asked the trial court “to declare that
the County has deceived the public by posing a false justification for its
refusal to provide public records under the [PRA] to [Voice of San Diego], and
to order the County produce the records responsive to the request as posed
without further delay.” (Capitalization omitted.)
The opening brief’s second argument focused on a redacted spreadsheet
that the County released to KPBS and San Diego Union Tribune in response
to their PRA requests. Specifically, on September 3, 2020, the County
released a 16-page spreadsheet containing information about outbreaks of
COVID-19 in San Diego County (the Confirmed Outbreaks Spreadsheet).
The 16-page document set forth information for COVID-19 outbreaks through
August 31, 2020, in three separate tables, i.e., for skilled nursing facilities,
non-skilled congregate living facilities, and community settings. 2
2 As the notes to the Confirmed Outbreaks Spreadsheet explain, the
definition of an “outbreak” differs depending on the context. For skilled
nursing facilities, an outbreak is defined as “at least one case of laboratory-
confirmed COVID-19 in a resident.” For non-skilled congregate living
8
Unredacted columns in all three of the tables showed the cities where
each outbreak occurred; the total number of cases in the outbreak; the
number of deaths resulting from the outbreak; the onset date of the outbreak;
the date the outbreak was confirmed; whether the outbreak was still active
and if not, when it became inactive; lab confirmed cases in the last 14 days;
and whether the outbreak was in an unincorporated area. The tables for the
skilled nursing facilities and non-skilled congregate living facilities also
separated the number of COVID-19 cases between residents and staff. The
table setting forth outbreaks in community settings had a column indicating
the community sector in which each outbreak occurred. The sectors included
“Restaurant/Bar”; “Grocery”; “Healthcare”; “Business”; “Gym”; “Business
(Manufacturing)”; “Food Processing”; “Hotel/Resort/Spa”; “Salon”;
“Residence”; “Faith-based agency”; “Government”; “Business (Construction)”;
“Higher Education”; “Preschool”; “Business (Retailer)”; “Adult Daycare”;
“Social Club”; and “Community-based organization.”
Three columns were redacted on all three of the tables, namely the
columns labeled “Location,” “Location Address,” and “Outbreak Number
*Internal Tracking Number.” In addition, for the tables relating to skilled
nursing facilities and non-skilled congregate living facilities, the column
facilities, an outbreak is defined as “at least one case of laboratory-confirmed
COVID-19 in the setting of ≥2 cases of acute illness compatible with COVID-
19 in residents or staff members of residential congregate settings with onset
within a 14-day period.” For community settings, an outbreak is defined as
“three or more laboratory-confirmed COVID-19 cases in different households
in a cluster of 2 or more acute illnesses compatible with COVID-19 with onset
within a 14-day period.”
9
showing the number of “Licensed Beds” was redacted. 3 Petitioners’ opening
brief argued that the County had not identified any meritorious grounds for
redacting the information from the Confirmed Outbreaks Spreadsheet.
After petitioners filed their opening brief, the parties entered into a
stipulation, which narrowed the issues to be adjudicated by the trial court.
“For the purpose of focusing and narrowing the substantive issues in dispute
in this lawsuit, all parties agree that Petitioners are requesting:
(1) injunctive relief that the Court order the County to produce only the
Confirmed Outbreaks Spreadsheets with the two columns under the headings
‘Location’ and ‘Location Address’ unredacted, and (2) declaratory relief with
respect to the public’s right to such information from [the County] under the
[PRA].” Thus, pursuant to the terms of the stipulation, the parties removed
from contention the first issue discussed in petitioners’ opening brief, namely,
whether the County improperly denied Voice of San Diego’s April 2020
request for copies of epidemiological reports on the ground that the ongoing
emergency situation caused by the pandemic did not afford the County
sufficient staffing capacity to search for records.
After the parties entered into the stipulation, the County filed its
opposition, setting forth its reasons for redacting the “Location” and
“Location Address” columns in the Confirmed Outbreaks Spreadsheet. The
County argued that the information was properly withheld on two
independent legal bases: (1) section 6254, subdivision (k), which allows a
public agency to withhold “[r]ecords, the disclosure of which is exempted or
3 In its communication with KPBS, the County provided the identical
multi-paragraph explanation for the redactions in the Confirmed Outbreaks
Spreadsheet as it provided in responding to the PRA request from San Diego
Union Tribune, which we have quoted above.
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prohibited pursuant to federal or state law” (§ 6254, subd. (k)); and (2) the
catchall exemption of section 6255, subdivision (a), under which a public
agency may withhold a public record when it proves that “the public interest
served by not disclosing the record clearly outweighs the public interest
served by disclosure of the record” (§ 6255, subd. (a)). In support of its
opposition, the County submitted, among other things, the declaration of
Dr. Wilma Wooten, who has been the County’s Public Health Officer since
2007. Among her qualifications, Dr. Wooten is a medical doctor and has a
master’s degree in public health. 4
In support of the County’s contention that the redacted information in
the Confirmed Outbreaks Spreadsheet is exempted from disclosure pursuant
to state law, Dr. Wooten explained that the County is “required to prepare
and send to the state individual case and outbreak reports detailing COVID-
19 data pursuant to [California Code of Regulations, title 17, section 2502].”
4 Dr. Wooten fully set forth her qualifications as follows: “I am trained in
Family Medicine and have a master’s degree in public health from the
University of North Carolina at Chapel Hill. I performed my residency
training at the Georgetown/Providence Hospital Family Practice Residency
Program in Washington, D.C. I practiced medicine as a faculty member in
the UCSD Department of Family and Preventive Medicine for the first 11
years of my 31 years in San Diego, and I am still a volunteer Associate
Clinical Professor in the UCSD Department of Family and Preventive
Medicine and an Adjunct Professor at San Diego State University, Graduate
School of Public Health. In February 2007, I was appointed as the Public
Health Officer for the County. I am also a County appointee to the HIV
Community Planning Prevention Board, a commissioner of the First 5
Commission of San Diego, a member of the California Conference of Local
Health Officials and the Health Officers Association of California, and a
member of the Public Health Accreditation Board and the Big Cities Health
Coalition. I have worked for the County of San Diego for over 19 years,
serving the first six as Deputy Health Officer, and have served as the Public
Health Officer for the past 13 years.”
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According to Dr. Wooten, “All information contained in the [Confirmed
Outbreaks Spreadsheet] is also contained in or derived from the individual
case or outbreak reports prepared by the Public Health Officer and sent to
the State Department of Public Health” and is “the County’s internal
document summarizing the information contained in those case and outbreak
reports.” Therefore, as Dr. Wooten explained, she considers the information
in the Confirmed Outbreaks Spreadsheet, like the individual case and
outbreak reports, to be confidential pursuant to California Code of
Regulations, title 17, section 2502, subdivision (f). That provision states,
“Information reported pursuant to this section [i.e., section 2502] is acquired
in confidence and shall not be disclosed by the local health officer except as
authorized by these regulations, as required by state or federal law, or with
the written consent of the individual to whom the information pertains or to
the legal representative of that individual.” (Cal. Code Regs., tit. 17, § 2502,
subd. (f).)
As Dr. Wooten further pointed out, California Code of Regulations, title
17, section 2502, subdivision (f)(3), states that “[a] health officer may disclose
any information contained in an individual case report to any person or
entity if the disclosure may occur without linking the information disclosed to
the individual to whom it pertains, and the purpose of the disclosure is to
increase understanding of disease patterns, to develop prevention and control
programs, to communicate new knowledge about a disease to the community,
or for research.” (Italics added.) Dr. Wooten explained that she exercised her
discretion to disclose the unredacted information in the Confirmed Outbreaks
Spreadsheet pursuant to this provision even though it was confidential
information reported pursuant to California Code of Regulations, title 17,
section 2502. However, she decided to redact the “Location” and “Location
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Address” for the outbreaks because she did not believe that information could
be disclosed without linking to individuals who tested positive for COVID-19.
Next, Dr. Wooten explained the basis for the County’s contention that,
under the PRA’s catchall exemption, “the public interest served by
not disclosing” the “Location” and “Location Address” information appearing
in the Confirmed Outbreaks Spreadsheet “clearly outweighs the public
interest served by disclosure of the record.” (§ 6255, subd. (a).) On this
subject, Dr. Wooten adopted and incorporated by reference a “Commentary”
piece published in the San Diego Union Tribune on August 21, 2020, which
she authored, along with the County’s Chief Medical Officer and the County’s
Medical Director, explaining why the County does not report specific COVID-
19 outbreak locations. As Dr. Wooten and her coauthors stated, “Contact
tracing and case investigation form a major pillar of our fight against
COVID-19, and we’re very concerned releasing outbreak locations could
impede those efforts. Investigation and tracing require a high level of trust
between investigator/tracer and the member of the public being interviewed
to help paint a complete picture of the movement of infection between
individuals and places. Individuals and businesses who fear—reasonably or
otherwise—that information they provide will be made public are
considerably less likely to provide the very vital details that identify and
mitigate outbreaks.” As the authors further explained, “If releasing names
and addresses would protect public health, we would wholeheartedly do so.
Instead, we believe doing so could hurt both our efforts, and needlessly lead
to the identification of individuals who became ill. There is no meaningful
action the public could take with such specific information. It may satisfy
curiosity, but risks unfairly stigmatizing both locations and individuals
linked to outbreak sites.”
13
Dr. Wooten’s declaration also pointed out that the public would not be
better equipped to avoid contracting COVID-19 if the County disclosed the
specific location of outbreaks. Presumably referring to outbreaks in
community settings, Dr. Wooten stated, “There is no correlation between the
location of an Outbreak and the risk of later catching the virus at that same
location. An ‘Outbreak’ does not mean individuals contracted the virus at
that Outbreak location; it means only that three or more individuals, from
different households, all tested positive for COVID-19 and visited or worked
in that location during a certain window of time. If a particular Outbreak
location was an unacceptable health risk to the public, the County Health
Officer would close the location down.” Dr. Wooten further explained that
although the Confirmed Outbreaks Spreadsheet contains numerous
outbreaks that are identified as still being active, “[t]he term ‘active’ as used
by the County to document COVID-19 outbreaks is a clinical term. It has
nothing to do with whether there is an ongoing infectious threat at an
outbreak site. There is no correlation between an ‘active’ outbreak and risk
of ‘contagion’ at the location of that outbreak. An active outbreak means only
that someone has had an illness onset at the outbreak site within the last 14
days.”
Similarly, in the “Commentary” piece appearing in the San Diego
Union Tribune, Dr. Wooten and her coauthors pointed out that although
members of the public are not provided with the specific location of
outbreaks, they are informed about the type of community setting where
outbreaks have occurred, and the public can use that information to avoid the
type of places where they may contract COVID-19. “Daily, the count
identifies the types of locations that experienced outbreaks, which helps
inform people about the types of places they visit.” Moreover, as the authors
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explained, “Collectively, our community outbreaks represent just 4.2% of the
positive cases. Knowing the location of where individuals were known to
have had COVID-19 will not keep you safe at a time when the virus is
everywhere.” 5
After receiving the parties’ briefing, the trial court held a hearing, took
the matter under submission, and requested supplemental briefing. On
November 19, 2020, after receiving the supplemental briefs, the trial court
denied the petition, relying on both of the independent grounds cited by the
County in its opposition.
Specifically, the trial court first decided that the redacted “Location”
and “Location Address” information was exempt from disclosure under
section 6254, subdivision (k) of the PRA because it was made confidential
pursuant to California Code of Regulations, title 17, section 2502, subdivision
(f). Second, as an independent ground for denying the petition, the trial court
decided that under the catchall exemption in section 6255, subdivision (a),
5 Dr. Wooten’s declaration also states that “Los Angeles is the only major
jurisdiction that reports outbreak locations; like San Diego County, all other
major jurisdictions keep that information confidential. For example, San
Francisco, Chicago and New York City all keep the locations of COVID-19
outbreaks confidential.” Petitioners submitted no evidence to dispute Dr.
Wooten’s statement. We note that the amicus brief filed by the Reporters
Committee for Freedom of the Press and 18 media organizations identifies
certain other jurisdictions throughout the country that have or had the policy
of disclosing location information, at least with respect to certain types of
COVID-19 outbreaks. The County, in its response to the amicus brief, takes
issues with some of those factual assertions, including whether the
jurisdictions continue to follow that approach. We do not attempt to resolve
the issue of which jurisdictions around the country currently release location
information for outbreaks. Our resolution of petitioners’ writ petition does
not turn on whether Dr. Wooten was correct in stating that Los Angeles
County is the only major jurisdiction that reports outbreak locations.
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the County had met its burden to prove that the public interest in
nondisclosure clearly outweighed the public interest in disclosure. Among
other things, the trial court pointed out that Dr. Wooten’s declaration was
uncontradicted in establishing that “revealing outbreak location information
is likely to inhibit business owners and other individuals from being
forthcoming when reporting outbreaks and responding to contact tracing
information requests.” Further, the trial court noted that “it is undisputed
that Dr. Wooten is an expert in the field of public health, and more
specifically combating a communitywide outbreak of a contagious disease.” 6
On January 4, 2021, petitioners filed a petition for extraordinary writ
in this court to obtain review of the trial court’s denial of their petition. (See
§ 6259, subd. (c) [“an order of the court, either directing disclosure by a public
6 In its ruling, the trial court noted that “the parties entered into a
written stipulation affirming the only information sought in this lawsuit is
the location information redacted from the spreadsheet.” Accordingly, the
trial court did not address petitioners’ allegation that the County violated the
PRA when it responded to Voice of San Diego’s April 10, 2020 request for
records by stating that, due to the pandemic, it did not have sufficient
staffing resources to respond and did not expect to respond until the lifting of
the emergency order issued due to the pandemic.
On appeal, petitioners contend that the trial court erred by not
resolving the issue of whether the County improperly failed to release the
documents requested by Voice of San Diego on April 10, 2020. We disagree.
Based on the plain language of the parties’ stipulation, the trial court did not
err in declining to adjudicate that issue, as it was no longer within the scope
of the issues in dispute. Specifically, the parties stipulated in the trial court
that the issues in dispute would be narrowed to petitioners’ request for
“(1) injunctive relief that the Court order the County to produce only the
Confirmed Outbreaks Spreadsheets with the two columns under the headings
‘Location’ and ‘Location Address’ unredacted, and (2) declaratory relief with
respect to the public’s right to such information from [the County] under the
[PRA].” (Italics added.)
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official or supporting the decision of the public official refusing disclosure, is
not a final judgment or order within the meaning of Section 904.1 of the Code
of Civil Procedure from which an appeal may be taken, but shall be
immediately reviewable by petition to the appellate court for the issuance of
an extraordinary writ”].) 7
On January 14, 2021, we issued an order summarily denying the
petition. 8 Petitioners filed a petition for review, which our Supreme Court
granted on March 25, 2021. The order granting review transferred the
matter to us with directions to issue an order to show cause why the relief
7 Section 6259, subdivision (c) provides that to obtain review, a party
shall “file a petition within 20 days after service upon the party of a written
notice of entry of the order, or within such further time not exceeding an
additional 20 days as the trial court may for good cause allow.” Here, the
trial court approved the parties’ stipulation that petitioners would have an
additional 20 days to file a petition seeking appellate review. The County
points out that on December 21, 2020, during the 20-day extension period,
KPBS published information from an unredacted version of the Confirmed
Outbreaks Spreadsheet, disclosing the specific locations of outbreaks since
the beginning of the pandemic. San Diego Union Tribune then also published
the information first released by KPBS. The record contains no information
about how KPBS obtained the information. As the County explains, it
learned that KPBS had the unredacted information and unsuccessfully asked
KPBS on December 16, 2020, to refrain from publishing it. We note that the
publication of the unredacted outbreak information does not render the
instant matter moot, as outbreak data for subsequent time periods continued
to develop and the County continued to make redactions. Although the
County argues that we should take account of petitioners’ release of the
information in deciding whether extraordinary writ relief is warranted, that
fact plays no part in our decision.
8 In the order summarily denying the petition, we granted petitioners’
request for judicial notice.
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sought in the writ petition should not be granted. We issued such an order,
received briefing, and held oral argument. 9
II.
DISCUSSION
A. Overview of the PRA
We begin with an overview of the PRA. “The PRA and the California
Constitution provide the public with a broad right of access to government
information. . . . The PRA, enacted in 1968, grants access to public records
held by state and local agencies. (§ 6250 et seq.) Modeled after the federal
Freedom of Information Act (5 U.S.C. § 552 et seq.), the PRA was enacted for
the purpose of increasing freedom of information by giving members of the
public access to records in the possession of state and local agencies. . . .
Consistent with the Legislature’s purpose, the PRA broadly defines ‘public
records’ to include ‘any writing containing information relating to the conduct
of the public’s business prepared, owned, used, or retained by any state or
local agency regardless of physical form or characteristics.’ (§ 6252, subd.
(e).)” (Los Angeles County Bd. of Supervisors v. Superior Court (2016) 2
Cal.5th 282, 290 (Los Angeles County Bd. of Supervisors), citations omitted.)
“As the result of a 2004 initiative, Proposition 59, voters enshrined the
PRA’s right of access to information in the state Constitution . . . (Cal.
Const., art. I, § 3, subd. (b)(1).)” (Los Angeles County Bd. of Supervisors,
supra, 2 Cal.5th at pp. 290-291.) As amended by the initiative, the
Constitution directs that “[a] statute, court rule, or other authority, including
those in effect on the effective date of this subdivision, shall be broadly
9 In connection with its April 26, 2021 return to the petition, the County
filed an unopposed motion requesting that we take judicial notice of certain
relevant documents. We hereby grant the request.
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construed if it furthers the people’s right of access, and narrowly construed if
it limits the right of access.” (Cal. Const., art. I, § 3, subd. (b)(2).) “ ‘ “Given
the strong public policy of the people’s right to information concerning the
people’s business (. . . § 6250), and the constitutional mandate to construe
statutes limiting the right of access narrowly (Cal. Const., art. I, § 3, subd.
(b)(2)), ‘all public records are subject to disclosure unless the Legislature
has expressly provided to the contrary.’ ” ’ ” (City of San Jose v. Superior
Court (2017) 2 Cal.5th 608, 617.)
“Despite the value assigned to robust public disclosure of government
records both in the California Constitution and in the PRA, two statutory
exceptions nonetheless exist. The first is section 6255[, subdivision ](a), the
PRA’s catchall provision allowing a government agency to withhold a public
record if it can demonstrate that ‘on the facts of the particular case the public
interest served by not disclosing the record clearly outweighs the public
interest served by disclosure of the record.’ In determining the propriety of
an agency’s reliance on the catchall provision to withhold public records, the
burden of proof is on the agency ‘to demonstrate a clear overbalance’ in favor
of nondisclosure. [Citation.] The second is section 6254, which lists certain
categories of records exempt from PRA disclosure. These exemptions are
largely concerned with protecting ‘ “the privacy of persons whose data or
documents come into governmental possession.” ’ ” (Los Angeles County Bd.
of Supervisors, supra, 2 Cal.5th at p. 291.)
In redacting the Confirmed Outbreaks Spreadsheet, the County relied
both on the catchall exemption in section 6255, subdivision (a), and on the
specific exemption providing a public agency the right to withhold “[r]ecords,
the disclosure of which is exempted or prohibited pursuant to federal or state
law, including, but not limited to, provisions of the Evidence Code relating to
19
privilege.” (§ 6254, subd. (k).) The trial court concluded that both of the
statutory grounds identified by the County had merit.
We proceed by first considering the catchall exemption. Because, as we
will explain, we conclude that the County has met its burden to prove that it
is justified under the catchall exemption to redact “Location” and “Location
Address” information from the Confirmed Outbreaks Spreadsheet, we need
not, and do not, consider whether the redactions would also be justified under
section 6254, subdivision (k).
B. The County Was Justified in Redacting the Location and Location
Address Information From the Confirmed Outbreaks Spreadsheet
Under the PRA’s Catchall Exemption
“Section 6255[, subdivision ](a)—[PRA’s] catchall provision . . . —
permits an agency to withhold a public record if the agency demonstrates
‘that on the facts of the particular case the public interest served by not
disclosing the record clearly outweighs the public interest served by
disclosure of the record.’ (§ 6255[, subd. ](a).) . . . This ‘provision
contemplates a case-by-case balancing process, with the burden of proof on
the proponent of nondisclosure to demonstrate a clear overbalance on the side
of confidentiality.’ . . . Whether such an overbalance exists may depend on a
wide variety of considerations, including privacy . . . ; public safety . . . ; and
the ‘expense and inconvenience involved in segregating nonexempt from
exempt information.’ . . . In balancing the interests for and against
disclosure, we review the public interest factors de novo but accept the trial
court’s factual findings as long as substantial evidence supports them.”
(American Civil Liberties Union Foundation v. Superior Court (2017) 3
Cal.5th 1032, 1043, citations omitted.) “As the party seeking to withhold the
record, the County bears the burden of justifying nondisclosure.” (County of
20
Santa Clara v. Superior Court (2009) 170 Cal.App.4th 1301, 1329 (County of
Santa Clara).)
1. The Public Interest in Redacting the Information
The County relies on Dr. Wooten’s declaration to establish the public
interest served by redacting the “Location” or “Location Address” information
from the Community Outbreaks Spreadsheet. The County argues, “As
Dr. Wooten explains, publication of location information would undermine
the County’s public health response. Specifically, ‘investigation and tracing
require a high level of trust between investigator/tracer and the member of
the public being interviewed.’ ”
As we have detailed, Dr. Wooten’s declaration incorporates the
“Commentary” piece published in the San Diego Union Tribune in which she
and her coauthors explain the reason for withholding the location of
outbreaks. “Contact tracing and case investigation form a major pillar of our
fight against COVID-19, and we’re very concerned releasing outbreak
locations could impede those efforts. Investigation and tracing require a high
level of trust between investigator/tracer and the member of the public being
interviewed to help paint a complete picture of the movement of infection
between individuals and places. Individuals and businesses who fear—
reasonably or otherwise—that information they provide will be made public
are considerably less likely to provide the very vital details that identify and
mitigate outbreaks.”
The County also identified the public interest in advancing effective
contact tracing when explaining to both KPBS and San Diego Union Tribune
why it was redacting information about the outbreak locations. As the
County explained, “There is a significant government interest during a
pandemic in the candid exchange of information between those linked to
21
these outbreak locations and the Public Health Officer’s disease
investigators. Contact tracing only works when those that are being
interviewed are completely honest and forthcoming with relevant
information. The Department of Public Health’s investigators assure those
they interview that the information they provide will be kept confidential.
Many people investigators speak with are fearful that providing the name of
the location where they were potentially infected could have negative effects
on that location whether it be a church, a restaurant or a place of business.
Additionally, it has the potential to reveal the diagnosis of particular
individuals if disclosed. Releasing the names of these locations and the
addresses will have a chilling effect on the open communication necessary to
ensure the Public Health Officer is able to effectively combat active
outbreaks.”
In short, according to the County, the redaction of “Location” and
“Location Address” information advances a major pillar in the County’s fight
against COVID-19 by promoting the trust and candid cooperation from the
public that is needed to ensure effective contact tracing. 10
10 The concept of contact tracing has become familiar to the public during
the COVID-19 pandemic. As stated on the State of California’s website
pertaining to COVID-19, “Contact tracing is a public health practice that
health departments use to identify and notify people who have been exposed
to someone with an infectious disease. Public health workers reach out to
these exposed people to tell them that they've been in close contact with an
infected person and to give them information and support to help them keep
themselves and their loved ones safe.” (See
[as of July 16, 2021], archived at
.) As explained by the Centers for Disease
Control and Prevention website:
“Contact tracing has been used for decades by state and local
22
Petitioners do not dispute Dr. Wooten’s expertise, and they submit no
evidence to contradict her expert opinion that the withholding of outbreak
location information advances the County’s efforts in combating the COVID-
19 pandemic. Instead, petitioners contend that Dr. Wooten’s opinion is
“solely supported by conjecture.” According to petitioners, “the County offers
neither statistical data to show the linkage between outbreak disclosure and
contact tracing, nor is there any scholarly work to indicate a basis for such an
opinion, even if provided by an expert.” (Capitalization omitted.) Petitioners
contend that the County’s position is based on “speculative concerns, fears
and worries over the possible effect of disclosure.” As we will explain, we
reject the argument.
Petitioners correctly point out that the trial court would have been
entitled to discount the weight of Dr. Wooten’s expert opinion about effective
contact tracing methodology if it determined that her opinion was unduly
speculative or without a proper basis. (See, e.g., Sargon Enterprises, Inc. v.
University of Southern California (2012) 55 Cal.4th 747, 771-772) [“the trial
court acts as a gatekeeper to exclude expert opinion testimony that is
(1) based on matter of a type on which an expert may not reasonably rely,
health departments to slow or stop the spread of infectious
diseases. [¶] Contact tracing slows the spread of COVID-19 by
● Letting people know they may have been exposed to COVID-19
and should monitor their health for signs and symptoms of
COVID-19.
● Helping people who may have been exposed to COVID-19 get
tested.
● Asking people to self-isolate if they have COVID-19 or self-
quarantine if they are a close contact of someone with COVID-
19.” (See [as of July 16, 2021], archived at
.)
23
(2) based on reasons unsupported by the material on which the expert relies,
or (3) speculative”]; In re Scott (2003) 29 Cal.4th 783, 823 [“Although experts
may testify about their opinions, the fact finder decides what weight to give
those opinions. This is especially important when the witnesses are not
neutral court-appointed experts . . . .”].) Here, however, the trial court did
not find Dr. Wooten’s opinion to be unduly speculative or to lack credibility or
foundation. Instead, as the trial court explained, it was crediting
Dr. Wooten’s opinion because “it is undisputed that Dr. Wooten is an expert
in the field of public health, and more specifically combating a
communitywide outbreak of a contagious disease.” We reach the same
conclusion as the trial court. Dr. Wooten’s opinion is entitled to weight based
on her expertise as a public health official, and, as we will explain, petitioners
present no reason for us to conclude otherwise.
In arguing that Dr. Wooten’s opinion is not entitled to weight,
petitioners focus on Dr. Wooten’s discussion of Los Angeles County’s decision
to release information about location outbreaks. Dr. Wooten states, “Based
on the contact tracing data reported on its website, Los Angeles County
makes about 0.7 contacts per case investigation. The [County of San Diego’s]
rate of contacts per investigation is 2.7, almost 4 times higher which greatly
helps [it] keep a low test-positive rate – a rate much lower than Los Angeles
County’s rate. I believe the fact that Los Angeles discloses the specific
locations of Outbreaks is a reason why that county has low contact tracing
numbers.” Petitioners point out that there are other significant differences
between Los Angeles and San Diego counties that may explain the difference
in contact tracing outcomes, such as population size, and they speculate that
Los Angeles County may have devoted less resources to contact tracing.
24
Accordingly, petitioners contend that “Dr. Wooten’s claims are of limited, if
any, weight.”
However, based on our independent review of the record, petitioners
place undue emphasis on Dr. Wooten’s discussion of Los Angeles County’s
experience with contact tracing in attacking the totality of her expert opinion.
When read in the context of the arguments made in the trial court, it is
evident that Dr. Wooten was not claiming to have relied on the contact
tracing outcomes in Los Angeles County in formulating her opinion that San
Diego County should withhold information about outbreak locations.
Instead, Dr. Wooten’s declaration was submitted after petitioners submitted
their opening brief, and Dr. Wooten specifically discussed Los Angeles County
in responding to an argument made by petitioners. In attacking the County’s
concern that publicly releasing information about the location of COVID-19
outbreaks would harm contact tracing efforts, petitioners’ opening brief
argued that “there is actual evidence to the contrary indicating that no such
imagined harm will arise, and that the County merely conjures up worst-case
scenarios to avoid disclosure.” Specifically, petitioners pointed out that “[t]he
County of Los Angeles has, and continues to presently, disclose specific
location data as to community outbreaks and infections within its jurisdiction
without quantifiable detriment.” As we read Dr. Wooten’s declaration, the
discussion of Los Angeles County is included to respond to this specific
argument made by petitioners. However, Dr. Wooten’s expert opinion that
effective contact tracing requires that outbreak location information be kept
confidential is based on her long history of training and experience as a
public health professional, not on her recent observations of contact tracing
efforts in Los Angeles County.
25
In contending that we should not give weight to Dr. Wooten’s opinion,
petitioners also rely on case law holding that vague or speculative assertions
of harm or adverse consequences are not sufficient to justify a public agency’s
decision to withhold public records under the PRA’s catchall exemption.
Those cases all follow the principle articulated in CBS, Inc. v. Block (1986) 42
Cal.3d 646, at page 652 (CBS), that “[a] mere assertion of possible
endangerment does not ‘clearly outweigh’ the public interest in access to . . .
records” (italics added). The cases arise in a variety of circumstances. (Ibid.
[a sheriff withheld records of concealed weapon applications and licenses,
stating that “releasing this information will allow would-be attackers to more
carefully plan their crime against licensees and will deter those who need a
license from making an application,” but this concern was “conjectural at
best,” and constituted nothing more than “[a] mere assertion of possible
endangerment”]; Long Beach Police Officers Assn. v. City of Long
Beach (2014) 59 Cal.4th 59, 75 [rejecting the city’s blanket refusal to release
the names of police officers involved in on-duty shootings because a
lieutenant’s declaration that public disclosure could expose an officer and the
officer’s family to harassment or retaliatory violence was too vague and
speculative when the city offered “ ‘no evidence’ of a ‘specific safety concern
regarding any particular officer’ ”]; Commission on Peace Officer Standards &
Training v. Superior Court (2007) 42 Cal.4th 278, 301-302 [when a public
commission withheld records showing peace officers’ names and employment
information, with the explanation “that in light of the ‘dangerous and
demanding work’ performed by peace officers, releasing such information to
the public creates a ‘potential for mischief,’ ” the court held that the blanket
refusal to release the records was improper because the “contention that
peace officers in general would be threatened by the release of the
26
information in question is purely speculative”]; California State University v.
Superior Court (2001) 90 Cal.App.4th 810, 835 (California State University)
[a state university could not refuse to disclose the identities of anonymous
private donors who obtained access to luxury suites in a newly constructed
arena on campus by claiming, without evidence, that disclosure would likely
lead to the loss of present and future donations because those “unsupported
statements constitute nothing more than speculative, self-serving opinions”
unconnected to any “admissible evidence in the record that any license
agreements will be canceled if licensee names are disclosed to the public”];
New York Times Co. v. Superior Court (1990) 218 Cal.App.3d 1579, 1585-
1586 (New York Times) [when a water district withheld records showing the
names of customers who used excessive water because “publication of those
names could expose the individuals to verbal or physical harassment due to
the strong currents of emotion on the subject of water overuse,” the court
rejected that argument, explaining that “the record contains no evidence that
revelation of names and addresses of those who have exceeded their water
allocation during a billing period will subject those individuals to infamy,
opprobrium, or physical assault” and thus the district’s concerns were
“speculative”].)
The cases that petitioners cite do not convince us that we should not
give weight to Dr. Wooten’s opinion in deciding whether the public interest in
redacting the “Location” and “Location Address” information clearly
outweighs the public interest in disclosure. Unlike the speculative and vague
prospect of adverse consequences in the cases that petitioners cite, the
dangers to the public from the spread of disease during the COVID-19
pandemic are real and concrete. In the face of the real public health crisis
caused by the COVID-19 pandemic, petitioners do not dispute that the ability
27
to conduct effective contact tracing is a major pillar in the fight against the
spread of the disease. The record contains the uncontradicted opinion of Dr.
Wooten that promoting trust between members of the public and contact
tracers is crucial if the public is to candidly and fully cooperate in contact
tracing. Thus, Dr. Wooten’s expert opinion in the field of public health
regarding the best way to fight a pandemic is nothing like the vague and
inexpert opinions offered by the public agencies to support the speculative
harms alleged in the case law cited by petitioners. 11
11 In distinguishing the cases relied upon by petitioners, we find further
support in Humane Society of U.S. v. Superior Court (2013) 214 Cal.App.4th
1233. In that case, the issue was whether a public university was justified in
denying a request under the PRA for communications that took place during
the research for an academic study. (Id. at pp. 1238-1247.) In support of its
decision to withhold the communications, the university relied on the
declaration of a professor who directed and coauthored the academic study.
(Id. at pp. 1240-1244.) Among other things, the professor opined that
“disclosure of communications would fundamentally impair the academic
research process” and would cause people to be “less forthcoming with data
and frank opinions.” (Id. at p. 1258.) Rejecting an argument that the
professor’s opinions were too speculative to support the university’s decision
to withhold the communications, the court distinguished three of the cases
that petitioners rely upon here: CBS, supra, 42 Cal.3d 646, New York Times,
supra, 218 Cal.App.3d 1579, and California State University, supra, 90
Cal.App.4th 810. The court explained that unlike in those three cases, “there
[was] competent evidence” that harm would result if the university was
required to release the communications. (Id. at p. 1258.) Just as the County
relies on Dr. Wooten’s expert declaration to establish the harm that would
result if it released the “Location” and “Location Address” information, the
university properly relied upon the professor’s opinion as competent evidence
to support its withholding of the communications, especially in light of the
professor’s credentials, his 30 years of experience, and the fact that his
“expert opinion . . . is grounded in his extensive experience in academic
research.” (Ibid.)
28
As appellate court judges we do not have the expertise to second guess
the soundness of Dr. Wooten’s opinion, and the record contains no expert
opinion that would cause us to question the wisdom of Dr. Wooten’s
approach. As the Supreme Court has recently observed, as members of the
judiciary, we “are not public health experts, and we should respect the
judgment of those with special expertise and responsibility in this area.”
(Roman Catholic Diocese of Brooklyn v. Cuomo (2020) ___U.S. ___, ___ [141
S.Ct. 63, 68.]) Applying that approach, we credit Dr. Wooten’s opinion and
therefore reject petitioners’ contention that the County’s concerns with
releasing the “Location” and “Location Address” information on the
Confirmed Outbreaks Spreadsheet is too vague and speculative under the
PRA’s catchall exemption to clearly outweigh the public interest in
disclosure.
Petitioners further argue that Dr. Wooten’s opinion that contact tracing
would be undermined if the County released the location of COVID-19
outbreaks is not credible because the evidence in the record shows that the
County has publicly disclosed location information for certain disease
outbreaks, “all without apparent concern of diminished outbreak notifications
going forward.” Specifically, petitioners point to the County’s public
disclosure of (1) the name and address of a restaurant at which a hepatitis A
outbreak occurred in 2017; 12 (2) a case of tuberculosis at a local high school
12 The County’s news release stated that “San Diego County health
officials are advising the public that anyone who may have eaten or had
beverages at the World Famous restaurant in Pacific Beach on seven specific
dates and times that they may have been exposed to a person with the
hepatitis A virus.” In the release, the County explained, “ ‘The risk to the
public is low, but anyone who ate or had beverages at the restaurant on those
dates and times should be aware of the signs and symptoms of hepatitis A.’ ”
29
during specific dates in 2020; 13 and (3) the specific number of COVID-19
cases connected to students at San Diego State University. Dr. Wooten’s
declaration provides further context as to why the County disclosed outbreak
locations in those instances.
Having reviewed the relevant documentation, we conclude that the
disclosure of outbreak locations in the three instances identified by
petitioners does not show that, in the context of the COVID-19 pandemic, the
County lacks a genuine concern with “diminished outbreak notifications
going forward.” The hepatitis A and tuberculous outbreaks are not
comparable to the COVID-19 outbreaks because they were limited in scope
and did not occur in the context of a widespread pandemic where ongoing
contact tracing is a necessary and important pillar in the fight against the
disease. Moreover, unlike in the COVID-19 pandemic, as Dr. Wooten
explained, release of the outbreak locations was warranted because the public
could take specific action based on that information to protect themselves and
prevent the spread of disease. As Dr. Wooten stated, “Unlike the . . .
hepatitis A incident [and the tuberculosis incident], the public does not need
to take any additional protective measures after visiting a site associated
with a COVID-19 ‘outbreak’—such as seeking medical care—because
community transmission of COVID-19 is widespread. For COVID-19, the
public needs to follow the same protective guidance related to facial
coverings, physical distancing, symptom screening, and sanitation regardless
of whether they visited a particular location.”
13 The County’s news release stated that “[a] person at Morse High School
was recently diagnosed with tuberculosis (TB) and may have exposed
students and staff” and that public health officials were working with the
school district “to notify those who were potentially exposed and provide TB
testing.”
30
With respect to the County’s public disclosure of the number of
students at San Diego State University who contracted COVID-19, because of
the size of the university, disclosure that a certain number of students
contracted COVID-19 does not pose any risk of revealing confidential
information that might discourage the public from participating in future
contact tracing efforts. Indeed, the disclosure that a certain number of
COVID-19 cases occurred within a large student-body is akin to the County’s
disclosure that a COVID-19 outbreak occurred in a smaller-sized city within
the County. 14 Moreover, as in the case of the hepatitis A and tuberculosis
outbreaks, the County had a specific public health rationale for releasing the
information about the outbreak occurring at San Diego State University.
Specifically, as Dr. Wooten explained, the County disclosed the number of
cases that occurred in students “for the purpose of attempting to change
student behavior (unmasked socializing) that was causing the outbreaks.” In
contrast, as Dr. Wooten explained, no public health rationale supports the
release of information of the “Location” and “Location Address" of COVID-19
outbreaks in general.
14 We note that petitioners submitted to the trial court a request that it
take judicial notice of a page from the website of San Diego State University
stating that the university anticipated “7,000 to 8,200 students to enroll in
on-campus courses during the 2020-21 academic year.” On our own motion,
we take judicial notice that in 2019 the city of Del Mar had a population of
4,331 and the city of Pine Valley had a population of 1,477. (U.S. Census
Bureau, [as of
July 16, 2021], archived at ;

[as of July 16, 2021], archived at .) Both of
those cities are identified as locations of outbreaks in the Confirmed
Outbreaks Spreadsheet.
31
In sum, through the declaration of Dr. Wooten, the County has
identified an important public health reason for redacting the “Location” and
“Location Address” information in the Confirmed Outbreaks Spreadsheet.
Petitioners have not succeeded in their attempts to undermine the weight of
that evidence. As the County has established, contact tracing is a major
pillar in the fight against the spread of disease in the COVID-19 pandemic,
and voluntary and candid public cooperation with contact tracing will occur
only if the public is assured that information provided during contact tracing
will be kept confidential.
2. The Public Interest in Obtaining the Redacted Information
Having considered the important public interest served by the County’s
redaction of the “Location” and “Location Address” information from the
Confirmed Outbreaks Spreadsheet, the next step in our analysis is to
consider the countervailing public interest in obtaining that information.
Petitioners identify two interests that would be served by disclosure: (1) “the
location data offers the public an understanding of the risks involved in
frequenting a location known to have one or more outbreaks,” and (2) the
information would show the public “how its government is performing in
combating the ongoing health crisis.” We discuss these interests in turn.
We first examine petitioners’ contention that members of the public
have an interest in the “Location” and “Location Address” information
because they can use that information to protect themselves or others from
COVID-19. Petitioners’ argument relies on the common sense notion that it
is best to avoid a location where infection has occurred, and that persons who
were at that location would want to know of the location to assess whether
they might have been exposed. Although we understand petitioners’
argument, the record does not support petitioners’ contention that a member
32
of the public can better avoid COVID-19 infection if he or she knows of the
particular locations where outbreaks occurred.
As Dr. Wooten stated, “There is no correlation between the location of
an Outbreak and the risk of later catching the virus at that same location.
An ‘Outbreak’ does not mean individuals contracted the virus at that
Outbreak location; it means only that three or more individuals, from
different households, all tested positive for COVID-19 and visited or worked
in that location during a certain window of time. If a particular Outbreak
location was an unacceptable health risk to the public, the County Health
Officer would close the location down.” (Italics added.) Further, according to
Dr. Wooten, “There is no correlation between an ‘active’ outbreak and risk of
‘contagion’ at the location of that outbreak. An active outbreak means only
that someone has had an illness onset at the outbreak site within the last 14
days.” (Italics added.) As the “Commentary” piece appearing in the San
Diego Union Tribune persuasively points out, community outbreaks
represent just 4.2% of the positive cases. Thus, even were the public told
about the location of outbreaks, “[k]nowing the location of where individuals
were known to have had COVID-19 will not keep you safe at a time when the
virus is everywhere.”
Significantly too, even with the redacted “Location” and “Location
Address” information, the Confirmed Outbreaks Spreadsheet still provides
the public with valuable information that might help them avoid infection, as
it discloses the community sector in which the outbreak occurred. Access to
information that a significant percentage of outbreaks occurred in a
“Restaurant/Bar,” for instance, allows members of the public to avoid that
type of establishment as much as possible to avoid being part of a future
outbreak.
33
We understand that the public is keenly interested in finding out the
exact location where outbreaks have occurred. We can also imagine some
exceptional circumstances where a member of the public may avoid spreading
disease by knowing that he or she has been in a location where an outbreak
was recently confirmed. 15 However, the record establishes that access to the
“Location” and “Location Address” information in the Confirmed Outbreaks
Spreadsheet would not have meaningful value in helping the public avoid
infection with COVID-19.
Second, we consider petitioners’ claim that the information about the
location of the outbreaks would help assess the efficacy of the government’s
response to the pandemic. Specifically, petitioners argue that “the public has
an intense interest in understanding which government measures are
working, and which are not.” According to petitioners, “[t]he public’s
understanding of the County’s use of the allocation of the extraordinary sums
of money being used is important in a fluid situation such as this ongoing
COVID-19 crisis, so that waste, fraud, and ineptitude may be diminished,
and the public can better understand what basis government has in
curtailing personal freedoms and rights at this time.” Petitioners’ argument
depends on the principle that “ ‘ “[i]f the records sought pertain to the conduct
of the people’s business there is a public interest in disclosure.” ’ . . . [T]he
issue is ‘whether disclosure would contribute significantly to public
understanding of government activities.’ ” (County of Santa Clara, supra,
170 Cal.App.4th at p. 1324.)
15 For example, someone who had significant interaction with people at
the location of a very recently confirmed outbreak, and who has not yet been
contacted by contact tracers, might decide to be more cautious in interacting
with household members until confirming whether he or she has become
asymptomatically infected with COVID-19.
34
We do not question the public’s strong interest in assessing the
government’s response to the pandemic, including whether the government
has effectively used its resources to advance public health and whether
restrictions on personal freedom are warranted. Moreover, news media
organizations, including petitioners, have indisputably played an important
role during the pandemic by obtaining public records so that the public may
analyze the government’s response. However, petitioners have not explained
why access to “Location” and “Location Address” information would
significantly improve the public’s ability to assess the government’s response
to the pandemic.
Petitioners contend that it is “effectively impossible to corroborate” the
“efficacy, efficiency, and cost” of the government’s pandemic response without
knowing the exact location of each outbreak. (Italics added.) That assertion
strikes us as an unwarranted and unsupported exaggeration. Certain
hypothetical scenarios may exist in which “Location” and “Location Address”
information for COVID-19 outbreaks might contribute to an understanding of
whether the government should have taken a different approach to allocating
its public health or law enforcement resources. However, petitioners have
not identified any scenario in which the public’s ability to evaluate the
government’s response would be significantly improved if it knew the exact
address where an outbreak occurred, as opposed to knowing the information
that is not redacted from the Confirmed Outbreaks Spreadsheet, including
the city, community sector (such as “Restaurant/Bar,” “Gym,” etc.), date, and
number of cases for each outbreak. Therefore, we conclude that disclosure of
the redacted “Location” and “Location Address” would not “ ‘contribute
significantly to public understanding of government activities.’ ” (County of
Santa Clara, supra, 170 Cal.App.4th at p. 1324.)
35
3. The Public Interest in Redacting the Information Clearly
Outweighs the Public Interest in Disclosure
In sum, having considered and balanced the public interest in redacting
the “Location” and “Location Address” information with the public interest in
gaining access to that information, we conclude that under the PRA’s catchall
exemption the County has met its burden to establish that “on the facts of the
particular case the public interest served by not disclosing the record clearly
outweighs the public interest served by disclosure of the record.” (§ 6255,
subd. (a).)
During a deadly pandemic, contact tracing is a major pillar in fighting
the spread of disease. The uncontradicted evidence in the record establishes
that the redaction of the “Location” and “Location Address” information from
the Confirmed Outbreaks Spreadsheet advances the public’s voluntary and
candid cooperation with contact tracing efforts. Although members of the
public understandably are interested in learning the exact location of
COVID-19 outbreaks, the disclosure of that information does little to advance
either the public’s ability to avoid COVID-19 infection or the public’s
understanding of whether the government is taking appropriate steps to
address the pandemic. On the contrary, the County has established that
release of the “Location” and “Location Address” information is not in the
public interest because it would undermine the County’s efforts to fight a
pandemic that negatively impacts every member of the public. Accordingly,
we deny the petition for extraordinary writ.
36
DISPOSITION
The petition for extraordinary writ is denied.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HALLER, J.
37