Kansas draws privacy line to exclude some businesses from COVID-19 cluster report

Gov. Laura Kelly says businesses in Kansas "have done a great job of opening in a safe manner." Her administration is shielding those with clusters of less than 20 COVID-19 infections from public disclosure. (Sherman Smith/Kansas Reflector)

TOPEKA — Gov. Laura Kelly’s administration has rejected an open records request by Kansas Reflector seeking the name and location of businesses connected to COVID-19 outbreaks of fewer than 20 infections.

The Kansas Department of Health and Environment last week began selectively identifying active clusters of COVID-19 cases with five or more infections for a wide range of locations, but decided it would only disclose the location of private businesses that have 20 or more cases.

KDHE cited a “personal privacy” exemption in state law in rejecting the request to identify all businesses, and the governor’s office said the identity of businesses with up to 19 infections will remain secret because they are not public entities. The administration wouldn’t explain why personal privacy is a concern for business but not a concern for sports teams, fraternities, rallies, hospitals, churches or other locations that are named.

The policy to shield businesses from public scrutiny is inconsistent with the message from health secretary Lee Norman, who says people should have information that allows them to make decisions about personal health and safety.

The agency began naming locations, Norman said during last week’s news briefing, “to empower Kansans to be more proactive about assessing their own personal risks. Am I putting myself at risk to go here or to go there?”

Some private businesses, including an optometrist in Colby associated with seven cases, are identified by KDHE because they fall under other categories. The risk associated with other businesses is kept secret.

“Our businesses actually by and large have done a great job of opening in a safe manner,” Kelly said during her Monday news briefing at the Capitol. “We have had no known outbreaks in any of our hair salons, our barber shops, even in our restaurants. It’s working. Our bars — another story.”

KDHE combines bars and restaurants into a single category. Since the beginning of the pandemic, outbreaks at 14 bars and restaurants were responsible for 272 infections.

An additional 153 outbreaks, with seven deaths and 1,159 cases, have been connected to private businesses. Those figures don’t include the 19 deaths and 3,470 cases attributed to outbreaks at meatpacking plants.

“In terms of choosing the numbers five and 20, there is a natural dividing line when we looked at the number of active cases,” said Lauren Fitzgerald, a spokeswoman for the governor. “As an example, if we disclosed every outbreak with two cases, that would be 95% of the outbreaks. If we increased it to five, this dropped to 50%. We saw a similar natural breaking point at 20 for businesses.”

KDHE denied the request for businesses below the “breaking point.” An attorney for the agency cited an exemption in the Kansas Open Records Act that allows government agencies to withhold public information “of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.”

Ron Keefover, president of the Kansas Sunshine Coalition for Open Government, said it was difficult to understand how the personal privacy exemption could be applied to records about businesses.

“After all,” Keefover said, “no one is seeking the names, Social Security numbers, or other identifiers of anyone with COVID-19. Rather, the statistical information is sought to educate and inform the public about locations that may have resulted in the infections. We ask: Why is it not an invasion of privacy to release locations involving 20 or more infections, but it is so for businesses with fewer than that number? That simply doesn’t make sense.”

Keefover also wondered why the disclosure of COVID-19 outbreaks at businesses would be different from the disclosure of restaurant inspections, which are handled by KDHE and made available to the public.

“If we can find out if someone smokes in the food preparation, surely we should be able to know if a cook or other employee has contracted a life-threatening infectious disease,” Keefover said.

Kansas Reflector has filed a complaint with the Kansas Attorney General’s office, which has the authority to investigate alleged violations of the Kansas Open Records Act.

As of Monday, eight private businesses were connected to enough infections to make the public cluster list. They include meatpacking plants in southwest Kansas and Simmons Pet Food in Emporia. The Amazon Fulfillment Center in Kansas City is listed with 42 cases.

“Nothing is more important than safety of our teams,” said Maria Boschetti, a spokeswoman for Amazon. “We’ve invested over $800 million in the first half of this year implementing 150 significant process changes on COVID-19 safety measures by purchasing items like masks, hand sanitizer, thermal cameras, thermometers, sanitizing wipes, gloves, additional handwashing stations, and adding disinfectant spraying in buildings, procuring COVID testing supplies, and additional janitorial teams.”

Businesses have pressured the Kelly administration to avoid the disclosure of any information relating to COVID-19 outbreaks. Alan Cobb, president and CEO of the Kansas Chamber, said businesses are adhering to recommendations from the Centers for Disease Control and Prevention, which include closing to allow employees to quarantine and time for extra cleaning.

Cobb said it was “near impossible to trust the data shared by KDHE,” which could be tainted with “false reports and misrepresentation of the actual facts.”

“KDHE is linking cases that are ‘associated’ with a business without providing any clear definition to what ‘associated’ means, nor is it explaining how it is determined that the business is the source of a virus outbreak,” Cobb said.

He said the chamber has heard from businesses of all sizes that are concerned about the negative impact of being placed on the public cluster list.

Norman, the KDHE secretary, said “we don’t want anything we do to be anti-commerce or anti-business, but also we want people to be safe.”

KDHE’s figures show 534 people have died from COVID-19 in Kansas, and 49,899 have been infected. Those numbers include a spike of 23 deaths between Friday and Monday. The total number of deaths has increased by 88 in two weeks — the same amount recorded for all of August.

Norman said the most common complaint he has received has been the decision to keep information about outbreaks secret.

“I’ve commonly been asked, ‘Can we have the information so we can make informed decisions for ourselves and our loved ones?’ ” Norman said.