San Joaquin County sues state health agency for basis for shutdowns

San Joaquin County has filed a public records lawsuit against the California Department of Public Health for COVID-related records. It follows months of back and forth between the parties as the county sought to learn what information the state relied on in restricting business and other activities to fight the pandemic.

"This conduct by CDPH caused millions of dollars in lost revenues and untold financial and other distress on many of the citizens of California," wrote Dana A. Suntag, representing the county as a partner with Herum Crabtree Suntag in Stockton. "CDPH engaged in this conduct based on incomplete, erroneous, or faulty information. In fact, one prominent medical expert referred to these shutdowns and restrictions as 'like you're taking a sledgehammer to the problem.'"

The Department of Public Health and the California Attorney General's office did not respond to requests for comment by press time. The complaint seeks a writ of mandate directing the health department to deliver the records, as well as attorney fees and damages. County of San Joaquin v. California Department of Public Health, 34-2021-80003733 (Sac. Super. Ct., filed Sept. 15, 2021).

"This lawsuit is not a prelude to another action," said Deputy San Joaquin County Administrator Jolena L. Voorhis in an email. "This is a stand-alone action that seeks to determine the documents the state was relying on when making its decisions that were impacting millions of people and innumerable businesses."

Suntag cited a July decision by the 4th District Court of Appeal, Division 1, which found the public has a "strong interest in assessing the government's response to the pandemic, including whether the government has effectively used its resources." However, the unanimous court in that case ruled in favor of the County of San Diego's right to redact addresses and other information from a public records response. Voice of San Diego v. Superior Court, 2021 DJDAR 7302 (Cal. App. 4th, July 16, 2021).

San Joaquin County's complaint included extensive correspondence between the county and the department. On Feb. 18, San Joaquin County Counsel J. Mark Myles wrote to the department requesting 61 sets of records under the California Public Records Act. They included "documents related to the prohibition on indoor dining," "risk criteria to determine the risk profile of bars," and documents related to the closure of gyms, sporting events and houses of worship.

The department wrote back on March 1, stating it could not meet the standard 14-day turnaround for such an extensive request. The letter stated this was because of the need to gather the records from multiple offices and databases, a need to "consult with another agency having substantial interest in the request," and "a voluminous amount of separate and distinct records demanded in a single request."

Two weeks later, department Assistant Chief Counsel Keith E. Van Wagner wrote to inform the county that the "vast majority of the records, if not all of them, will be subject to numerous exemptions." This included exemptions relating to records from the governor's office.

Then, citing American Civil Liberties Union Foundation v. Deukmejian (1982) 32 Cal. 3d 440, he wrote the department could not comply unless the county would "narrow your request in such a way that it does not generate a large number of records."

"Collecting and reviewing these records would divert critical staff resources from the public health response underway in response to an emergency," Van Wagner wrote.

The sides then engaged in several more weeks of letters. The county submitted a more narrow request relating to disease transmission in youth sports, but received just three academic studies on the topic in response.