Attorney General Wayne Stenehjem has issued an opinion that the Department of Health did not violate the law when it declined to provide Information relating to COVID-19 cases contained in protected disease control records.
The Department of Health received an open record request from the Forum News Service for a list of all COVID-19 cases known to the Department, sorted by the patients’ five-digit postal code and then further sorted to specify the status of the patient. The Department denied the request on the ground that the records are disease control records protected by law, and instead provided the requester with a link on its website to the information that could be publicly provided without violating the law. Forum News Service argued that the Department arbitrarily determined what information should be provided, improperly denying the request. Disease control records may be released at the discretion of the Department under certain circumstances. When an entity has discretion to release information, it is not a violation of the open records law if the entity exercises that discretion to deny release of the requested information.