Access to smallpox information spotty in some states

From the Summer 2003 issue of The News Media & The Law, page 26.

By Gil Shochat

In December 2002, the White House asked all state public health departments to have contingency plans in place in case of a release of smallpox virus by terrorists.

The plans, under which states were required to show what they were doing to prepare for a smallpox assault and how public health departments would handle a an outbreak, remain secret in most states. Officials cite security concerns. Only a handful of states have released the information.

Since December, journalists across the country have requested the pre- and post- event smallpox response plans. Pre-event plans outline a state’s ongoing vaccination efforts that seek to ensure that a core number of health care workers are protected in case of an outbreak. Post-event plans are blueprints of government response plans in the event of a smallpox epidemic.

At least 11 states — Indiana, Minnesota, Massachusetts, Texas, New Mexico, Florida, Washington, Georgia, Kentucky, Rhode Island and Kansas — have released almost their entire smallpox emergency response plans, often on their Web sites.

Reporters remain frustrated with the uneven access to these plans in other states.

The Sacramento Bee in California and the Manchester, Conn., Journal-Inquirer are considering taking legal action if their states insist upon keeping the plans secret. The Journal-Inquirer has filed an administrative appeal over the rejection of its request for the information.

“We want this information now when things are calm, so that if there is a crisis the public will be informed and there will be less likelihood of panic,” said Paul Green, the newspaper’s state editor. “We’re not asking the state to give us the location of where they’re keeping their vaccine supplies, or the names or phone numbers of emergency response workers.”

The Connecticut Department of Public Works, which was responsible for withholding the smallpox plans, claimed that dissemination of certain information might aid terrorists. It may withhold the information under a state law passed last year, which allows the public works commissioner to decide whether security-related information should be released.

“If we named sites where vaccines were being given out, terrorists could then set up a counter-plan to sabotage our efforts. This was not about preventing the public from knowing,” said Ray Philbrick, head of security for the Connecticut Department of Public Works.

“Many states don’t want someone to know where [smallpox] emergency response teams are located or where the state is storing supplies of smallpox vaccines because they fear that if these are publicized, they may be attacked by terrorists,” said Paula Steib, communications director for the Association of State and Territorial Health Officials, a group that works with and coordinates state public health activities. But these are not the only kinds of information the states maintain.

Some public health officials in other states do not share these broad security concerns. A few states redacted isolated portions of their plans and then released the edited versions to the public, determining that this would be adequate to prevent the information from being misused.

Washington state, which released its smallpox plans almost in their entirety, determined that redacting names and vaccine location information was sufficient to guarantee the safety of its plans.

“We released this information because we wanted the public to understand what we were doing with relation to smallpox and the role that public health plays with respect to emergency preparedness,” said Tim Church, spokesman for the state’s Department of Health. “We believe that all information should be released unless the law specifically says you can’t give it out.”

Church also said there was little debate over the release of this information and that security concerns were minimal.

The lack of consistency between what some states will release has left many journalists angry and frustrated.

“Ohio released their smallpox report, but when we got it, there were hundreds of pages that were simply blanked out. The state cited the Ohio terrorism law passed in May 2002 [which exempted security information from release] as their reason for keeping most of this information secret,” said Luke Shockman, the (Toledo) Blade reporter who tried to get access to his state’s smallpox plans but was rebuffed.

“It’s hit or miss depending on the state you live in, but it’s not like smallpox would kill someone differently in Ohio versus Georgia, where they released a lot of this smallpox information,” Shockman said.

In some states the debate on how much information to release has been fierce. While Georgia did eventually release its plans, it did so only after an intense internal struggle between the Georgia Division of Public Health and the state’s Department of Homeland Security.

Initially, public health officials in the Georgia Division of Public Health released their plans to Associated Press reporter Daniel Yee. Homeland Security personnel then intervened and stopped public health officials from releasing the same information to Maryn McKenna, a reporter with the Atlanta Journal-Constitution, because they felt the service was giving out too much information. McKenna had to file a Freedom of Information request and wait several weeks, at which point Homeland Security officials relented and allowed the public health agency to release the requested information.

“Public health is a very open field of government where we try to get people to have as much information as we can . . . it’s challenging for us to think the way the ‘top secret’ type people who are accustomed to not giving out information do,” said Richard Quartarone, spokesman for the Georgia Division of Public Health.

While public health officials won the smallpox information battle in Georgia, clear national guidelines on how much information to disclose remain elusive.

The Centers for Disease Control and Prevention says that each state must decide how much information to release. There are no national laws requiring release or withholding of this information.

“Our policy is to be as transparent as possible and we advise each state to give out as much information to the public as possible,” said CDC spokesman Curtis Allen. “Release of smallpox information varies from state to state; some do business in the sunshine.”

The Association of State and Territorial Health Officials’ Steib said that release of smallpox information “is all over the board.”

Deciding on whether a state will release smallpox response information depends more on bureaucratic than security reasons. This information is far less likely to be released if smallpox is classified under the state’s homeland security program than as a public health concern, she said.

Meanwhile, reporters in states such as Connecticut, who want to know whether their state is adequately preparing for a potential smallpox outbreak, are upset that information widely available in other states is being withheld from them.

“Nobody’s saying let’s give the terrorists the keys to the store here, this is about giving people basic information to make rational decisions and not be obsessively secret,” The Journal- Inquirer’s Green said.