DPH won't say where say where EEE victims live: An expert calls that mystifying abuse of the public records law

DPH won't say where say where EEE victims live: An expert calls that mystifying abuse of the public records law The Department of Public Health has denied releasing the requested records three times - citing the same reasons twice - and the Brockton Enterprise has appealed each time, as recently as last week.

Last year, a dozen people across Massachusetts contracted Eastern equine encephalitis and four of them died of the rare but serious disease.

Although the virus is only spread to humans through the bite of infected mosquitoes, rather than person-to-person, communities can be considered at anywhere from a remote to critical risk for EEE.

Communities that are at the highest level — critical — are considered to have an excessive risk for EEE and cities and towns are elevated to that level once a person who has been infected is identified in that area.

But you may never know whether the person who contracted the EEE virus lives in your city or town — or on the opposite side of the county.

The Department of Public Health, the state agency that focuses on prevention and wellness, provides public information regarding victims who contract EEE, as well as the West Nile virus, and tips for how people can protect themselves against the diseases.

In releasing information about victims who contract the mosquito-borne diseases, the Department of Public Health releases a wide age range and only the county that the victim lives in, rather than the specific city or town.

In August, in announcing the first human case of EEE in 2019, a spokeswoman for the department said “a male over 60 from southern Plymouth County” had contracted the virus. In mid-August, a Rochester woman said on social media that her father had contracted EEE and was in a coma. The state has not confirmed whether the southern Plymouth County man was the Rochester man.

In late August, the Department of Public Health confirmed that a Fairhaven woman, Laurie Sylvia, 59, had died of EEE but when she first contracted the disease, the state only described her as a woman over 50 from “southern Bristol County.” In late September, DPH announced that a Freetown man, James Longworth, 78, had both contracted EEE and died in the same press announcement.

The Enterprise, initially back in September, filed a public records request asking the Department of Public Health to release a list of the human cases of EEE in 2019, including the town each victim lives in.

The Department of Public Health has denied releasing the records three times — citing the same reasons twice — and the newspaper has appealed each time, as recently as Thursday.

The state Supervisor of Records has twice ordered the department, in mid-October and mid-November, to provide a response to the request.

Rebecca Murray, the supervisor of records, found in October that the Department of Public Health “did not meet its burden of explaining with specificity how the records, in their entirety, are exempt from disclosure.”

“It is additionally uncertain how disclosing the names of towns would lead to the identification of the individuals affected,” Murray wrote in her November decision. “The department must clarify these issues.”

Attorney Jeffrey J. Pyle, a partner at Boston-based Prince Lobel who specializes in media law and First Amendment cases, said the Department of Public Health should have to release the towns of the EEE victims.

“How is somebody going to find out that you can identify a specific individual from just a town? That seems unlikely and an over-broad reading of the exemption,” he said. “That’s a real abuse of that exemption.”

Pyle said that if the Department of Public Health were to release “man from Brockton,” he is not identifiable by that information alone.

In their November denial of the records, the department also stated that it relies on “the standard for de-identification of protected health information set forth in the HIPAA Privacy Rule.” The department said it decided to release county level data concerning EEE victims because of the rule.

But Pyle said that the Department of Public Health is not bound by the Health Insurance Portability and Accountability Act — HIPAA — and therefore can’t rely on it as a justification to withhold the records.

On Feb. 1, Massachusetts announced its first confirmed case of the coronavirus. That day, the Department of Public Health released a statement that “a man returning from Wuhan, China who is in his 20s and lives in Boston” had the disease, which can be spread from person-to-person.

“They should have said Suffolk County,” Pyle said, referring to the department’s previous explanation of their policy. “They don’t really believe someone is identifiable from naming at the town level. I find the use of that exemption to be mystifying.”

The attorney said it would be in the best interest of the public for the Department of Public Health to release the cities and towns of victims, rather than just a county. The Public Records Law states that it must be determined whether the public interest in disclosure outweighs the privacy interest associated with disclosure.

“Middlesex County, for example, is enormous. Somebody who contracts EEE in Pepperell might not raise concerns for anyone in Cambridge,” Pyle said. “But folks in the northern region want to know that there might be mosquitoes nearby. It seems like it would be a better use of their public information function to provide that town-level detail, not just at the county level.”

The Enterprise last week appealed the Department of Public Health’s latest denial of the records. The appeals process is ongoing.