So fractured is compliance with the Missouri Sunshine Law that state health officials -- and at least some local governments -- are impeding the release of vital information due the public about the COVID-19 pandemic.
This issue involves the toll on residents of the state’s long-term care facilities. It turns on the language of the landmark 1973 open-records law that states records kept by the government are to be “open to the public unless otherwise provided by law.” The law further states it “shall be liberally construed … to promote this public policy.”
Despite this clarion call for transparency, the Missouri Department of Health and Senior Services contends it is not obliged to do more than report the number of long-term care facilities in each county reporting at least one COVID-19 case. Not only not obliged, the agency says, but not permitted.
The St. Louis Post-Dispatch made an open-records request of DHSS for the names of facilities experiencing COVID-19 outbreaks. DHSS denied the request, citing a state statute governing patients' medical records that it says "prevents the identification of patient, physician, or medical facility."
Is the agency truly contending factual information about a patient population -- and which in no way identifies specific patients -- amounts to “a medical record” that should be denied citizens concerned about their loved ones? Is it really asserting it has no management reports with this data that clearly would be subject to the Sunshine Law?
In a Kansas City Star account, Kansas City officials sang from the same hymnal, stating: State laws pertaining to privacy and health information "require that medical information released by the Kansas City Health Department only be in statistical aggregate form that precludes and prevents the identification of an individual, physician, or medical facility."
Sorry, but the public deserves better than this. And apparently this sentiment is shared by some local health officials and managers of long-term care facilities who have provided the requested data. Consider this Post-Dispatch report:
“Two employees and three residents of Sunset Health Care Center in Union have tested positive for COVID-19, according to the Franklin County Health Department. … The two employees — ages 33 and 57 — live in St. Clair and Pacific, according to a list provided by the health department. The residents are ages 29, 55 and 62. All are men.”
If you are a resident of Union, St. Clair or Pacific -- or, for that matter, any part of Franklin County -- this is welcome information in the midst of the pandemic.
Families have information they want and need about the severity and nature of a local public health concern while advisories against social contact remain in place and care facilities remain sealed off to visitors.
Advocates have details they can act on in campaigning for improvements in oversight, care and staffing. City and county officials have fresh insights into how to direct health department resources.
Statewide, DHSS says 176 long-term care facilities have at least one COVID-19 case. Nationally, the New York Times reports, based on available data, more than a third of COVID-19 deaths have been linked to long-term care facilities.
And yet Missouri officials will not give citizens the bare minimum of information that would let them know if the facility where a loved one lives has been affected.
There is a better way, beginning with DHSS and reluctant local officials understanding that, as much as we all wish it were not true, the pandemic remains a serious concern -- especially for those living in care facilities. There is still time to do the right thing.
Citizens have reason to question whether state law in fact bars the naming of the nursing homes and providing other relevant data. Appointed and elected officials at every level should rise to the moment, revisit these questions and consider what more the government can do to provide details the public wants and needs.
For starters, this should include a review of how officials have interpreted the language of the Sunshine Law calling for it to be “liberally construed” in the public’s interest.
Dennis Ellsworth is executive director of the Missouri Sunshine Coalition, a nonprofit partnership of businesses, news media, government officials and citizens who advocate for open meetings and open records. The group has offices in Columbia.