AZ Board of Regents Lawyer: State Universities Don't Have To Release COVID-19 Information

Apr 9, 2020

By Howard Fischer
Capitol Media Services
PHOENIX -- The legal counsel for the Arizona Board of Regents is telling Attorney General Mark Brnovich there is "no factual basis'' for his assertion that state universities have to release more information about students, faculty and staff who contract COVID-19.

In a sometimes sharply worded letter, Jennifer Pollock said federal law expressly prohibits the release of personally identifiable health information "except in the most extreme circumstances.'' And she noted that Brnovich was aware of -- and apparently cited -- some of the same statutes.
"Despite acknowledging this governing law, the opinion makes broad and incorrect conclusions, including that the universities should release information about where employees who have fallen ill worked and where students who have fallen ill lived, took classes or may have visited,'' Pollock wrote to the attorney general.
"Even though your opinion is couched and captioned as a legal opinion, you do not rely on any law for this conclusion,'' she continued, saying it is instead based on policy views that government should be transparent "and your own judgment regarding what information is medically relevant and useful to the general public.'' And Pollock called his failure to seek information from the regents and the universities before issuing his opinion -- and making public statements on it -- is "disappointing.''
The letter represents the latest dust-up in what has been a contentious relationship between Brnovich and the board. In fact, two of those disputes have spilled over into court, one about the process the regents use to set tuition and other over the board's policies for leasing property for private development.
This dispute started with a query from Rep. Mark Finchem, R-Oro Valley, who said he believes that some state agencies were not putting out information that might help people who might have had contact with someone who is infected.
In his formal opinion, Brnovich cited laws that he said protect both patient and student privacy. But he also said universities should apply various legal exceptions so that potentially affected students, staff and visitors can monitor their conditions and, if necessary, self-quarantine.
He said that, at a minimum, that means disclosing not only the campus attended by an infected student but also any buildings or dorms visited.
Pollock, in her response, said Brnovich claims to be providing advice "consistent with CDC guidelines.
"However, that guidance does not include notification of everyone who may have been on the same campus or in the same building as an ill individual, but instead is based on who may have had close contact with an ill individual,'' she said. That means notification should be based on the specific facts of the ill person's conditions and activities.
"Your legal opinion would have benefited from acknowledging thee facts,'' Pollock said.
She also took issue with Brnovich's contention that student health records can be disclosed -- even including personally identifiable information -- to "appropriate parties'' if that information is necessary to protect public health or safety.
John Arnold, the board's executive director, said there's no reason that the public needs to know that a resident of a particular dormitory contracted the virus
"We're notifying those individuals who are at risk from any exposure,'' he said.
Potentially more problematic, Arnold said, is that the dorms currently are pretty emptied out.
"We do risk disclosing identifying information,'' he said, with people able to figure out who is the affected student. "We tend to balance protecting our students, keeping confidentiality under the law, and public purpose.''
Anyway, Arnold said, university dorms are not areas open to the public.
Ditto, he said, in cases where it turns out that a student who has had classes in a specific classroom building turns out to have COVID-19.
"We  look at those on a case-by-case basis and disclose information based on the guidance we're receiving, and as necessary,'' Arnold said.
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