by Robin Kemp
The Southern Center for Human Rights and the American Civil Liberties Union are suing Sheriff Victor Hill, along with two other Clayton County Sheriff’s Department officials, over the department’s failure to disclose public information about the impact of COVID-19 on inmates of the Clayton County Jail.
The suit seeks an injunction ordering CCSO to provide The Southern Center “full access” to records showing the numbers of inmates and staff who have tested positive for, died of, shown symptoms of, or been quarantined for COVID-19. It also seeks an injunction forcing CCSO to use “the most economical means of compiling the requested records,” and asks that CCSO be fined and pay The Southern Center’s legal fees.
The suit alleges CCSO “responded with a series of shifting representations”:
- May 4: CCSO said it had “no responsive documents/records”
- May 5: CCSO said “it would provide the requested ‘statistical data’ and was ‘working on a response.'”
- May 7: CCSO “changed its position yet again. Citing no authority, the Sheriff’s Office stated that it has decided to withhold responsive records because the Open Records Act ‘will not allow’ it to disclose information obtained by ‘accessing medical records.’
- May 9: The Southern Center sent a letter to try and “resolve the dispute” but CCSO did not reply.
“Despite the strong public interest in transparency, especially during a pandemic, Defendant Hill has refused to make public any document that would show the effects of COVID-19 at the Clayton County Jail,” the suit reads in part, “even such basic information as the number of infected detainees. This information must be tracked and reported for effective prevention and mitigation efforts.”
As a result, the suit claims, “Defendant Hill and the Clayton County Sheriff’s Office have violated the Georgia Open Records Act by failing to produce public records within a reasonable time, and failing to follow the procedures in the Open Records Act.”
The suit names Hill, as “custodian of all records produced and/or maintained by the Clayton County Sheriff’s Office,” along with Alan Parker “as legal advisor to the Clayton County Sheriff” and Philip Price, who is Hill’s assistant. Both Parker and Price “acted as the Clayton County Sheriff’s authorized agent in responding to the records request at issue in this action.”
According to the suit filed May 28 in Clayton County Superior Court, the Southern Center made an Open Records Request on April 29 for “records concerning the impact of the coronavirus pandemic at the Clayton County Jail…as part of a larger effort to understand how the COVID-19 pandemic is affecting people in jails across Georgia.” The Southern Center requested only numbers, not personally identifiable information, about both inmates and staff.
Separately, and with no prior knowledge of the lawsuit, The Clayton Crescent filed an Open Records Request on May 27, via the department website’s online form, asking CCSO for similar information:
- Number of inmates who have tested positive for COVID-19 since April 15, 2020
- Number of staff who have tested positive for COVID-19 since April 15, 2020
- Number of staff who have died of COVID-19 since April 15, 2020
- Number of staff who have recovered from COVID-19 since April 15, 2020
- Number of inmates who have died of COVID-19 since April 15, 2020
- Number of inmates who have been hospitalized in jail since April 15, 2020
- Number of inmates who have been hospitalized outside jail since April 15, 2020
- Number of inmates who have recovered from COVID-19 since April 15, 2020
- Number of inmates who tested positive for COVID-19 and have been released since April 15, 2020
- Number of inmates taken in total since April 15, 2020
- Number of inmates released total since April 15, 2020
- Number of COVID-19 tests administered to inmates since April 15, 2020
- Number of unused COVID-19 tests on hand in Clayton County Jail
- Any internal memos or emails regarding COVID-19 procedures
Under the Open Records Act, CCSO has three business days to respond to the request.
According to the U.S. Department of Health and Human Services Office of Civil Rights, HIPAA does not protect the kinds of statistical information, or “de-identified health information,” that the Southern Center and journalists have sought:
“There are no restrictions on the use or disclosure of de-identified health information. De-identified health information neither identifies nor provides a reasonable basis to identify an individual. There are two ways to de-identify information; either: 1) a formal determination by a qualified statistician; or 2) the removal of specified identifiers of the individual and of the individual’s relatives, household members, and employers is required, and is adequate only if the covered entity has no actual knowledge that the remaining information could be used to identify the individual.”
COVID-19 jail conditions remain secret
On March 13, the Clayton News requested information about how COVID-19 was impacting the jail and received a general response from Corrections Major Terrance D. Gibson, who said the jail was “conducting business as usual” and that “The inmates are receiving the supplies they need and are being directed to wash using soap and water constantly.” At that time, visiting hours had not yet been cancelled. Requests for clarification and follow-ups seeking more information yielded no substantive response.
On March 16, the Clayton News reported that Hill had posted a vague response about the COVID-19 situation at Magistrate Court on his Nixle feed after Georgia Supreme Court Chief Justice Harold Melton issued a statewide judicial emergency. (During the emergency, Magistrate Court has been holding livestream video arraignments, which are archived on YouTube.) In that post, Hill said, “The Magistrate Court of Clayton County has implemented strategies to protect the workforce while ensuring continuity of operations. This is a rapidly evolving situation and information will be updated as it becomes available.”
On April 29, according to the suit, the Southern Center’s paralegal, Nick Barber, e-mailed an Open Records Request to Hill seeking five categories of records of “documents sufficient to show”–that is, the numbers alone would do the trick–how many inmates and staff tested for COVID-19, how many inmates and staff tested positive for COVID-19, how many inmates in quarantine or medical isolation due to COVID-19 symptoms (whether or not they’d been tested), how many inmates have died “after contracting COVID-19 or showing COVID-19 symptoms (with or without a test),” and the total inmate population as of April 29.
On May 4, Price replied, saying, “This agency has no responsive documents/records” other than the total inmate population. According to the suit, “Price did not identify any exemption that justified withholding the records.” He referred Barber to CorrectHealth’s “point of contact” for records, Deborah Pilgrim.
That day, “the Southern Center contacted CorrectHealth, LLC, the Clayton County Jail’s medical services provider, requesting statistical information.” It also emailed Hill via Price, as well as former county attorney Jack Hancock, asking that Hill “ensure that [his] agency ha[d] provided records responsive to our April 29 request, or a timeline for their prompt production.”
On May 5, according to a footnote in the suit, “Ebony Cameron, a CorrectHealth employee, responded that the request had been forwarded to Health Services Administrator Elizabeth Smith. To date, CorrectHealth has provided no further response.”
That same day, Parker sent an e-mail to Smith, copying Price and the Southern Center, saying “that the Sheriff’s Office’s ‘records custodian’–presumably referring to Defendant Price–was ‘under the impression that the initial request he had responded to was protected by an ‘Exemption’ for medical records.” He added that Price had “‘sought further clarification’ from Parker, who represented that ‘limited’ information for ‘statistical data purposes’ would be provided to SCHR.’ No timeline was given for producing the records.” He attached a document with fields that matched the four categories of numbers the Southern Center had requested, with a note that Smith would provide the information “‘in numbers form only due to HIPAA restrictions.'”
On May 7, Parker wrote the Southern Center again, saying “he ‘could not be of assistance’ in providing responsive records, because a response would ‘entail accessing medical records.’ Because ‘the content sought is in the Medical Record,’ Defendant Parker claimed that he was ‘precluded from removing information and providing it to a third party,'” yet “cited no statutory provision or other legal authority supporting his position.”
On May 9, the Southern Center e-mailed Parker, pointing out that “the medical records exemption applies only to medical records, and that records such as ’emails, text messages, internal memoranda, reports, and the like” containing the requested information–though perhaps subject to redaction–would not be subject to a categorical exemption for medical records. Rather, the text of the Open Records Act provides that it ‘shall be interpreted narrowly to exclude only those portions of records addressed by such exception.”
Staff attorney Ryan Primerano said the medical records exemption did not apply “because disclosure of ‘a matter of public interest’ is ‘a violation of no one’s legal right of privacy….Moreover, there is no invasion of an individual’s personal privacy unless the matter made public is ‘offensive and objectionable to a reasonable man of ordinary sensibilities under the circumstances.'” Primerano added, “This is the same kind of information that many agencies, including the Georgia Department of Corrections, routinely disclose to the public.”
He also pointed out that CCSO had failed to cite the medical records exemption in its original response, “instead denying that it had responsive records.”
The Southern Center gave CCSO until May 13 to respond. CCSO did not.
The case is pending before Superior Court Judge Kathryn Powers.
No “responsive” records?
A big part of getting information through an Open Records Request is making that request as specific as possible. Knowing what records a government agency keeps can help members of the public narrow down the information they want. For example, “all records about potholes from 1900 to the present” is probably too broad. A better request would specify “locations of all potholes repaired on Jonesboro Road between Jan. 1, 2018 and Dec. 31, 2019.”
CCSO has plenty of records relating to inmate health care, from statistics the state requires them to report to the health department to detailed plans for addressing a health emergency like COVID-19.
According to a 2018 request for proposal for an annual contract for inmate care (RFP #SO-02, bids opened at CCSO on April 18, 2018 at 2 p.m.), the Clayton County Jail has a 1,920-bed capacity and a 27-bed infirmary for a projected daily inmate population of 1,800. The eventual contractor, who is CorrectCare, is charged with running “a 24-hour (7 days a week) health care program in a humane manner with respect to the inmate’s right to basic health care at the Jail using only licensed, certified, and professionally trained personnel.” This includes “the knowledge and ability” needed to obtain National Commission of Correctional Health Care “Accreditation for Correctional Facilities.”
A condition of the contract is “to maintain complete and accurate records of care and to collect and analyze health statistics on a regular basis.”
The contractor is “required to maintain complete medical and financial records during the life of the contract. Such records are to be made available to the County and the Clayton County Sheriff’s Office if officially requested, to be audited by a designated County auditing staff. If such audits reveal overcharges and/or undercharges, such will be adjusted and compensation made by either party to correct the erroneous charges. All medical records will remain the property of Clayton County Sheriff’s Office and will be surrendered to the County at any time the contract should terminate.”
However, the contractor, or “proposer” in the RFP, “shall maintain all medical records….All procedures concerning the confidentiality of medical records must be followed, specifically with regards to HIPAA regulations.”
The contractor is also responsible for the “Management Information System,” or “the methods to be used in implementing a system for collecting and analyzing the trends in the utilization of health care services.” If someone knows which system the contractor uses and what data fields it collects, that person can call up the data in a few seconds–say, to fulfill an Open Records Request.
Two contract positions are of particular interest here: the Infectious Disease Coordinator (IDC) and the Medical Records Manager (MRM). The IDC works in concert with the Clayton County Health Department and uses Centers for Disease Control and Prevention standards to manage infectious diseases in the jail. Based on the job description, the MRM is the person who likely would run a report at the request of CCSO staff. In addition to being “responsible for the maintenance and retention of medical records and their immediate access for clinical and administrative purposes” and “organiz(ing) medical charts,” the MRM “prepare(s) lists and logs as required.” An administrative assistant is tasked with assisting these and other members of management. The contractor also has “24/7 Clerical Medical Records Staff,” whose duties mirror the MRM’s.
The contractor must keep all medical records on “a hosted solution with no server hardware on-site” with multiple redundant locations in case of disaster, using XML format, document version control, encrypted electronic signatures, and “combined patient records including scanned documents and dynamic (keyed) entry document types.”
Why it matters
Such recordkeeping standards indicate that retrieving anonymous COVID-19 case counts among inmates should be a matter of a few keystrokes–not hours of hand-redacting inmate names from printed copies of the source records–assuming those figures don’t already come out in a daily report or a state-mandated report to county health officials.
One way that government agencies try to deflect Open Records Requests is by quoting absurdly high fees for copies and time allegedly spent retrieving records. Supplying a handful of COVID-19 totals from an existing database or a simple tally sheet, particularly if those numbers are state-mandated for reporting to county health officials, should take a fraction of a second.
“Members of the public, whose tax dollars fund the Clayton County Sheriff’s Office, are entitled to understand and intelligently consider the practices of the Clayton County Sheriff’s Office and the conditions in the Clayton County Jail,” the suit argues. “That interest is particularly weighty in this case given the importance of transparency in responding effectively to the COVID-19 pandemic. Defendants’ failure to comply with the Open Records Act is willful and without justification.”
In the introduction to The Blue Book, which is a handbook for Georgia law enforcement about Georgia’s sunshine laws, former Attorney General Sam Olens wrote, “As members of the law enforcement community, we must be ever vigilant to ensure that the public we are sworn to protect and to serve is also protected in its rights to know what its government is doing. Moreover, it is often the case that law enforcement personnel are the most visible part of ‘government’ that people encounter on a regular basis. It is critical, then, that you be as well informed as possible regarding the laws governing the access of the public to the information that government has.”
The Blue Book was developed in cooperation with the Georgia Press Association and several law enforcement agencies, including the Georgia Sheriff’s Association.
Read the lawsuit:
Read the Georgia Open Records Law and other state sunshine laws, courtesy of the Georgia First Amendment Foundation:
Read the 2018 Inmate Healthcare Jail RFP that describes how health records and inmate care are to be administered in the Clayton County Jail:
If you are an inmate with COVID-19 or if you were released from the Clayton County Jail due to COVID-19, we want to hear from you.