A McHenry County judge improperly ordered the county health department to reveal the names and addresses of COVID-19 patients to law enforcement and nearby municipalities, a state appeals panel found last week.
The 2nd District Appellate Court in Elgin ruled Circuit Judge Michael J. Chmiel abused his discretion when he issued a temporary restraining order in April after the McHenry County Sheriff — joined by the cities of McHenry and Woodstock and the villages of Algonquin and Lake in the Hills — sued the county health department.
The plaintiffs wanted to provide the case information to the McHenry County Emergency Telephone System Board so dispatchers could alert responders if they were encountering an infection when responding to calls.
The department objected, noting patient information is generally protected under the federal Health Insurance Portability and Accountability Act.
The plaintiffs argued there is an exception to HIPAA that permits, but does not require, health departments to share information for the benefit of first responders.
The department also argued the information was of limited value because the real infection rate was believed to be much higher than the number of confirmed infections. It recommended police conduct their duties under the premise that everyone, including themselves, could be infected.
After urging the two sides to mediate a solution to no avail, Chmiel entered the TRO requiring the disclosure of positive cases’ names and addresses, but also ruled the plaintiffs could only retain those details for seven days. The defendant asked the court to reconsider and dissolve the TRO.
On June 16, Chmiel denied the health department’s motion, and the department appealed.
Writing for the appellate court in an unpublished order, Justice Joseph E. Birkett held that the plaintiffs should not have received the TRO because they did not demonstrate how they were entitled to the information.
“In reviewing the trial court’s judgment on the motion to dissolve, it is apparent that plaintiffs had no right to the information sought, but that the Department had the authority and discretion to allow the release of the information sought,” Birkett wrote.
“Because plaintiffs could not establish even an arguable right to the information, let alone a fair question, the temporary restraining order was patently improvidently granted.”
Birkett’s ruling first noted the panel could not technically review the issuance of the TRO directly because the department didn’t directly appeal it. However, Supreme Court Rule 307 allows a more limited review of a refusal to dissolve a TRO, he wrote.
A refusal to dissolve is not an abuse of discretion if the party getting the benefit of the TRO demonstrates “a fair question” as to the existence of its rights.
Here, since it was established that dissemination of the information was discretionary, no party could claim a right to it, Birkett wrote.
“Because there is no right to the information sought, plaintiffs could not demonstrate the existence of a fair question regarding the right sought — indeed, rather than a fair question, it is beyond question that plaintiffs have no right to the information sought, the names and addresses,” he wrote.
“Because there is no right to the information sought, plaintiffs could not fulfill the elements necessary for the award of a temporary restraining order.”
Birkett was joined by Justices Kathryn E. Zenoff and Liam C. Brennan in the June 25 decision.
“We note that our decision addresses only the narrow legal issue presented and nothing else; it should not be deemed an endorsement or disapproval of anything beyond those narrow legal confines,” the group wrote.
“We commend all parties for their efforts in these unprecedentedly trying times, and we wish only that all the parties are placed in the best position to discharge their duties safely and effectively. We further express our heartfelt appreciation for the parties performing their difficult tasks, especially the individuals entrusted with our communities’ safety and protection.”
Norman D. Vinton, civil division chief for the McHenry County State’s Attorney’s office, which represented the sheriffs and the municipalities in the case, could not be reached for comment.
Robert J. Long and Douglas Dorando of Daniels Long & Pinsel LLC in Waukegan represented the health department in the case. Long said in an interview Tuesday that he doesn’t believe the plaintiffs would be successful with an appeal.
“When you read the record — and you can kind of piece it together from the opinion — all of their arguments were procedural. They never really addressed the substance,” Long said.
He noted the health agency’s argument that the patient information could actually be counterproductive because the true number of infections was estimated to be 10 times greater than those that were actually confirmed.
“That’s one of the problems when you have a case that seems intuitive. If you don’t understand the science underneath it, you don’t respect the science underneath it, you can get yourself lost in a logical trap,” he said. “And I think that’s what happened.”