KSL-TV sues for info on Utah County businesses alleged to be COVID-19 hot spots

(Rick Bowmer | AP file photo) In this May 20, 2020, file photo, Salt Lake County Health Department public health nurse Lee Cherie Booth performs a coronavirus test outside the Salt Lake County Health Department in Salt Lake City. In Utah County, the County Commission put out information alleging two unnamed businesses were hot spots for the virus spread after ordering employees to work even if they tested positive. County Attorney David Leavitt has since said the claims were inaccurate.

KSL-TV is suing Utah County in an effort to gain access to information the government has repeatedly declined to provide to the public about two businesses that reportedly created hot spots of the coronavirus and infected at least 68 people.

The lawsuit, filed Tuesday in 4th District Court, asks a judge to rule that the county’s refusal to release information identifying the businesses is unlawful, arguing that there is no legal merit for withholding it.

“But even if there were some basis to classify the above records as private, controlled, or protected, the legitimate public interest in learning the identities of the businesses who were the epicenter of outbreaks, apparently fueled by the businesses’ refusal to follow state and local health directives, is significant, and outweighs any interest in secrecy,” the lawsuit contends.

KSL’s decision to file suit comes one week after Utah County Attorney David Leavitt attempted to walk back earlier claims the County Commission had made about the businesses in a public news release.

While he confirmed the businesses were a source of mass infection — with 48% of employees testing positive for the virus at one of the companies — Leavitt said county leaders had it wrong when they claimed the businesses had required employees to come to work despite a COVID-19 diagnosis.

After national headlines and social media scrutiny around the allegations, the county’s about-face has created “additional public interest” in learning their identities, the lawsuit states.

“The flip-flop from initially accusing these businesses of forcing employees to report to work despite COVID-19 exposure, followed by the county’s reversal and retraction of these accusations, heightens the public interest in getting to the bottom of what happened, and learning the identities of these businesses is an important first step in that process,” KSL’s attorneys contend.

Judge Christine Johnson has ordered an expedited timeline for the county to respond to the complaint at the request of the plaintiffs. KSL argued that members of the public have a compelling interest in release of the information “as quickly as possible” so they can determine whether they’ve had contact with the businesses or its employees and so they can make decisions to protect themselves and others from the virus.

The Utah Media Coalition, made up of the state’s largest news organizations, has said it was prepared to go to court to obtain the names of the two Utah County businesses but had urged leaders there to provide the information without a legal battle.

The county has so far declined to do so, arguing that release is not necessary because neither of the companies have direct interaction with the general public and that releasing the information would violate the private health information of employees.

KSL notes that it is not seeking private information about employees and that the county could protect individuals by redacting their names from any documents that show the names of the businesses.

Companies that imperil public health are routinely identified to the public — such as when restaurants and food manufacturers violate health codes, when businesses and individuals engage in fraud, or when companies use poor safety practices that put employees or the public at risk.

Leavitt, who is running for Utah attorney general, declined in a Tribune interview Thursday to comment on the lawsuit beyond stating that KSL “is following the legal process and we respect their right to do so.”

The Salt Lake Tribune plans to continue seeking the information through an appeal to the State Records Committee.

Questions about county response remain

The county attorney’s news conference last week left several questions unanswered about the county’s response, including how leaders had disseminated such inaccurate information and how the allegations that employees were forced to work were proven false.

Leavitt originally directed those questions to the county Health Department, which said the day of the news conference that it was working on a news release to respond to the incident. But a response never came, and the department later redirected The Tribune’s requests for more information back to Leavitt.

One week later, the answers remain murky.

Leavitt, in providing new details Thursday, said that someone who had tested positive for COVID-19 made an allegation to the Health Department through the contact tracing process that he or she was being forced to go to work. He wasn’t sure where the claim against a second business had come from.

The Health Department, recognizing the urgency of the situation, passed that information on to the County Commission before verifying the claim, Leavitt said, and those elected officials disseminated the information to the public.

“The County Commission very easily could have said in the letter, ‘These are unsubstantiated allegations but we’re putting this out there out of an abundance of caution,’” he said. “Then we wouldn’t be dealing with this problem, right? That’s not what the letter said.”

In dissecting where things went wrong then, Leavitt said the responsibility would rest with the County Commission, which he said had "made something seem far more urgent than it turned out to be.”

However, when asked if the Health Department had notified the commission that it hadn’t verified the claims, Leavitt said he wasn’t sure.

“In the totality of it, there’s probably some human error on the part of the County Commission, there’s probably some human error on the part of the Health Department. To me, that’s government doing their best,” he said.

Members of the County Commission did not respond to a request for comment Thursday.

Leavitt also couldn’t provide much information about how his office had deemed as inaccurate claims that employees were being forced to work. He said there was no investigation in which county officials had received documentation from the businesses that would disprove the claims of an employee and said only that there wasn’t enough information to proceed with a criminal investigation.