Lawyer for Bristol couple’s vaccine lawsuit: Data release is ‘invasion of privacy’

mark pazniokas

Rep. Cara Pavalock-D’Amato, R-Bristol, right, is representing a couple in a vaccine-related lawsuit.

A lawyer for a Bristol couple suing to block the release of Connecticut school-by-school immunization data argues in court papers that distributing the information amounts to an “invasion of privacy” for families with unvaccinated children, even though no students would be identified.

Cara Pavalock-D’Amato, a Republican lawmaker who is representing Kristen and Brian Festa in their quest to prevent more school vaccination data from being released, asked a Superior Court judge Wednesday not to dismiss their case. Connecticut’s Department of Public Health – the target of the lawsuit – has sought to have the case tossed out.

The Festas are seeking the erasure of 2017-18 school immunization rates published on the health department’s website, along with an injunction to prevent the distribution of 2018-19 data. Health Commissioner Renee Coleman-Mitchell’s decision in May to make public for the first time a school-by-school assessment of child vaccination rates came amid a national measles outbreak and the recording of three cases in Connecticut.

But the Festas have charged that Coleman-Mitchell didn’t have the authority to release those figures, and they claim that while no children’s names were included in the data, the information amounts to a breach of privacy. After the data was posted, they said, families with unvaccinated children became the focus of threatening remarks on social media.

Pavalock-D’Amato said the comments have intensified since the Festas filed their lawsuit in late May.

“The online threats and comments are a consequence of the defendant’s actions, but are not the true injury,” she wrote in her reply to the state’s motion for dismissal. “The actual injury is the unequal treatment of parents and unvaccinated kids based on their religious beliefs and the invasion of privacy by publicizing the medical information provided to the state in confidence.”

“If the goal was to educate parents of unvaccinated kids,” she added, “then the commissioner could have reached out to these parents directly.”

Health officials contend that the data release provides a crucial snapshot for parents of the vaccination rates in schools, which could help them decide where to enroll their children.

The 2017-18 figures show 102 schools where fewer than 95 percent of kindergarten students were vaccinated against measles, mumps and rubella – the threshold recommended by the Centers for Disease Control and Prevention. The revelation alarmed lawmakers and state officials, including Gov. Ned Lamont, who said: “This data is startling and needs to be addressed. This cannot become a public health crisis as we have seen in other states.”

Legislators had considered trying to repeal the state’s religious exemption from mandatory vaccinations, but decided to wait until 2020.

Statistics for the most recent school year were supposed to be released this summer, but health officials now say the matter is on hold as the lawsuit winds its way through court.

As part of the most recent legal filing, Pavalock-D’Amato attached two previously undisclosed letters between Coleman-Mitchell and LeeAnn Ducat, the founder of Informed Choice CT, a group that has vehemently opposed the effort to roll back the state’s religious exemption. Brian and Kristen Festa were board members of Informed Choice at the time of the correspondence.

On May 3, the day of the 2017-18 school data release, Ducat wrote to the commissioner urging her to keep the information private. Ducat said the publication was “discriminatory” and presented a “potential violation” of the Health Insurance Portability and Accountability Act.

“When this data is distributed regarding schools and daycares with small student populations, it may be relatively simply for parents and students to deduce which students are claiming a religious exemption, subjecting them to bullying and other forms of harassment,” she wrote.

In her latest court filing, Pavalock-D’Amato said the state’s data release amounted to “unequal treatment” based on religious beliefs.

Coleman-Mitchell replied a week later, noting that the data was presented at an aggregate level and did not identify any children.

The figures “can provide parents and guardians of immune-compromised and other children, including those who have not obtained vaccines due to religious beliefs, with the information that is necessary to make informed decisions about their children,” she wrote.

The commissioner said state law and agency regulations give her broad powers to decide whether to distribute the school-by-school statistics.

“In this case, DPH has exercised its discretion to release these data,” Coleman-Mitchell wrote. “It is important to note that the release of such data is becoming a routine public health practice. All neighboring states except New Hampshire provide these same school-level data to make parents aware of immunization rates, allowing them to make informed decisions as to how such rates can be improved for the benefit of their children.”

The correspondence was disclosed to demonstrate that the Festas had “exhausted all administrative remedies” before bringing the lawsuit, Pavalock-D’Amato said.

The state will have an opportunity to reply to Pavalock-D’Amato’s filing before a judge rules on the motion to dismiss. The next court hearing has not yet been scheduled.