By Bill Wichert

Law360 (May 25, 2021, 9:41 PM EDT) -- A New Jersey state judge handed a partial victory to a state assemblyman Tuesday in ordering the New Jersey Department of Health to turn over county-level data used in reporting COVID-19 statistics while rejecting as overbroad his demand for a log of related agency emails.

During a Zoom hearing on Assemblyman Erik Peterson's state Open Public Records Act lawsuit against the department, Superior Court Judge Mary C. Jacobson said the NJDOH must provide him with the county-level data that went into calculating COVID-19 Activity Level Index, or CALI, scores by region between October and early April.

The GOP legislator — who sits on the Assembly Health Committee and represents predominantly Republican areas — sought such information in connection with concerns over how CALI scores are being used by the administration of Democratic Gov. Phil Murphy to justify business restrictions aimed at curbing the spread of the coronavirus.

While an agency official asserted in a certification that the "release of county data is not preferred and could be misleading, that's really something that is in the eye of the beholder, and it doesn't govern what constitutes a public record," Judge Jacobson said at the hearing.

"The court finds it's a public record and needs to be turned over ... to Mr. Peterson," the judge later added of the raw county-level data in question.

In monitoring the extent of the COVID-19 pandemic across New Jersey, the NJDOH has calculated CALI scores — which range from low to very high — for each of six regions comprising the state's 21 counties on a weekly basis since August. The scores are based on new COVID-19 cases, emergency room visits with COVID-like symptoms and positive COVID-19 test results.

State officials have indicated that, of those three indicators, only case data is available on a county-level basis.

After unsuccessfully trying to access information through legislative channels, Peterson on Jan. 14 submitted an OPRA request to the NJDOH seeking underlying county-level data behind the CALI scores reported beginning in October as well as a log of all emails sent to or from agency personnel containing certain keywords.

With respect to that second request, Peterson said in the OPRA form: "I am also attempting to ascertain how or why a county was assigned a particular region and why the data is not reported on a county-by-county basis instead of by region."

Having received no response from the NJDOH by the applicable deadline, Peterson on Feb. 23 launched the present action, demanding the release of the records.

About a month later — around the same time when the NJDOH gave Peterson the only three CALI scores it had calculated by county thus far — the agency began calculating CALI scores by county every other week, according to certifications later submitted by the NJDOH in the matter.

Edward I. Lifshitz, the medical director of the Infectious and Zoonotic Disease Program and Communicable Disease Service at the NJDOH, explained in one certification why CALI scores had been calculated by region instead of by county.

One reason was that "calculating CALI score simply by place of residence could be largely inaccurate and misleading because New Jersey is a small, densely populated state and people commonly move between counties for work, recreation, and family visits," Lifshitz said.

During Tuesday's hearing, Judge Jacobson pressed Deputy Attorney General Jessica Sampoli, representing the NJDOH, about why the agency did not respond to Peterson's OPRA request. Sampoli acknowledged it "should have been addressed sooner," but indicated that she didn't know exactly why it was not.

Sampoli claimed the available county-level data is already posted on a COVID-19 dashboard on a state website. She also argued that Peterson's second request for an email log was "overbroad" since fulfilling it would entail searching the emails of every NJDOH employee.

Peterson's attorney, Donald M. Doherty Jr., however, countered that, on the dashboard, "you cannot get the actual counts by time frame by county." Doherty further suggested that the NJDOH could narrow the search of emails to those of certain department employees.

But Judge Jacobson ultimately sided with the NJDOH in knocking down Peterson's email log request, saying "it's not up to the agency ... to reformulate a request by a requestor."

"I can appreciate that ... Mr. Doherty would like the agency to do the work for Mr. Peterson — to narrow down who the employees are — but again that's not how OPRA works," the judge said.

Peterson is represented by Donald M. Doherty Jr. of the Law Office of Donald M. Doherty Jr.

The NJDOH is represented by Deputy Attorney General Jessica Sampoli.

The case is Erik Peterson v. State of New Jersey, Department of Health et al., case number L-389-21, in the Superior Court of New Jersey, County of Mercer.

--Editing by Andrew Cohen.

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