EL PASO, Texas -- While the Texas Attorney General has stated statistics about the deadly Covid-19 pandemic in taxpayer facilities are public records, the City of El Paso is still holding out for more guidance.
The Office of Attorney General Ken Paxton ruled July 6 that the Texas Health and Human Services Commission, or HHSC, should disclose most of its data on Covid-19 nursing homes to the public.
“The attorney general ruling agreed with most of these transparency arguments and only allowed certain information that is ‘highly intimate or embarrassing’ and ‘not of legitimate concern to the public’ to be withheld under common law privacy,” the Freedom of Information Foundation of Texas (FOIFT) said in news release.
The Texas Health and Human Services Commission sought an opinion from the state's attorney general after it received several public records requests, including one from the Freedom of Information Foundation of Texas (FOIFT), to release specific information about which nursing homes have outbreaks of Covid-19. Many other states, including New Mexico, make statistics available to their residents.
Numerous ABC-7 viewers have reached out to express frustration by the lack of information they have to make informed decisions on whether to remove a loved one from a facility or transfer them to another since there has been little if any public information on the severity of infections within those facilities.
In a May letter to Gen. Paxton, the Texas Health and Human Services Commission said, in part: “The Commission has been releasing aggregate statewide numbers, but the requesters generally seek facility specific Covid-19 infection numbers. The commission believes it lacks authority under state law to release the requested information.”
This week, based on the AG ruling, HHSC published the statewide data on its website—it even shows El Paso nursing home data.
In light of this recent ruling, ABC-7 reached out to city spokeswoman Laura Cruz-Acosta asking if the City of El Paso would follow suit and release its own set of nursing home data to city taxpayers.
Cruz-Acosta sent a statement to ABC-7 that read:
“The Health & Human Services Commission (HHSC) sought a ruling from the Attorney General (AG) regarding information related to Covid-19 cases in nursing homes, assisted living facilities under the Public Information Act. In HHSC’s letter to the AG, they relied on confidentiality provisions under state law, applicable to the HHSC. The AG determined that HHSC was incorrect in withholding information because the information was not confidential under Section 552 of the Government Code or the cited sections of the Health & Safety Code. The City in its letter to the AG did not rely on the same laws as HHSC. Instead, the City relies on the confidentiality provisions of Chapter 81 of the Health & Safety Code which are specific to a Local Health Authority. The City is still awaiting a response from the Attorney General in regards to its specific requests. As stated in the Attorney General’s letter, the HHSC letter ruling is limited to the particular information put forth by HHSC, and “must not be relied upon as a previous determination regarding any other information or any other circumstances.””
“The city is right and wrong,” said Joe Larsen, a Houston-based Freedom of Information attorney.
In a phone interview with ABC-7, Larsen, who is also a member of the Freedom of Information Foundation of Texas, said while the provisions are different the underlying arguments are essentially the same.
“It comes down to the same thing; the Attorney General said if you de-identify the information you can release it. If the city can de-identify it under the strength of that ruling they can release it,” Larsen said Wednesday evening.
ABC-7 has only asked for cases and deaths by numbers. KVIA has never asked for names of patients; only the location of where Covid-19 cases are located.
In May, ABC-7 filed a public records request under the Texas Public Information Act on behalf of our viewers with the El Paso Department of Public Health. The request included any reports or records that show which nursing homes or assisted living facilities have had (or have) cases of Covid-19. We also asked for records that show how many people have recovered or died.
El Paso City officials believe information can be withheld under the Texas Health and Safety Code, Chapter 81, under section 81.046.
In a June 5 letter to the Texas Attorney General, Assistant City Attorney Roberta Brito wrote, in part: “The City has made a reasonable determination not to release the medical and epidemiological information that Requester seeks; therefore the information must be withheld. Further, even if the City determined that release of information for statistical purposes would serve the purposes of Chapter 81, the City has determined that the information cannot be released in a manner that unequivocally prevents identification of any person as required by section 81.046 (c ) (1) and, therefore, must be withheld.”
ABC-7 has sent a letter to the Texas Attorney General Ken Paxton asking that the information be released.
El Paso officials have never told the public any information about which nursing homes have cases of Covid-19, including deaths, since the pandemic began.
The city has released a "clusters report" on the website EPStrong.org showing the categories where the clusters are located.
As of July 27, elderly care facilities was the category with the highest number of infections and deaths by residents and staff. Other categories that followed were "correctional and detention facilities," "health care facilities," "general businesses" and "government" among others.
City officials have, however, said facilities can share information with the public on their own and El Paso City Mayor Dee Margo has urged them to do so.
ABC-7 reached out to the state Attorney General’s Office to see whether the City of El Paso could or should release the names of nursing homes and assisted living facilities with Covid-19 outbreaks and deaths given the recent ruling related to HHSC.
KVIA has not heard back.