HARTFORD, CT — The state will ask a Superior Court judge today to toss a lawsuit filed by a Bristol couple that alleges the release of school-by-school vaccination data violated their privacy.
Assistant Attorney General Darren Cunningham is expected to argue the couple didn’t exhaust their administrative remedies because they did not submit a letter to state Department of Public Health Commissioner Renee Coleman-Mitchell on May 3 asking her not to release the information.
The 2017-18 school-by-school data was released May 3. It showed more than 100 schools fell below the Centers for Disease Control and Prevention’s recommended immunity level of 95% for measles, mumps, and rubella.
The May 3 letter was sent by LeeAnn Ducat, founder of Informed Choice Connecticut, a group that says it opposes “medical mandates,” such as vaccines, “for employment, enrollment, or inclusion anywhere,” including access to public schools in Connecticut. The couple suing the department — Kristen and Brian Festa — are board members of Ducat’s organization.
Cunningham said this is the first time since filing the lawsuit on May 31 that the Festas are arguing Ducat’s letter is an exhaustion of their administrative remedies. The Festas initially filed the lawsuit on their own, but have since retained attorney Cara Pavalock-D’Amato, who is also a Republican state representative from Bristol. Ducat’s group is not a plaintiff.
The Festas argue in their court filings that the Department of Public Health would not have asked the legislature to pass a bill in 2017 that would allow it to release aggregate school-level data if it already had the legal authority to do so.
In 2017, the department asked the legislature to give it the authority to release the data. The legislation never passed and no data was released until May 3 of this year.
“It was illegal for the Defendant to release the information then, and it is illegal for the Defendant to release it now,” Pavalock-D’Amato wrote. “The Defendant cannot reasonably argue otherwise. As the Defendant has clearly engaged in illegal conduct, it cannot be immune from suit.”
Cunningham argues the commissioner of Public Health has broad authority to release the information under Connecticut’s public health laws.
“There is no basis to conclude that the pursuit of a mandate to publish the school data inevitably means that the Commissioner does not have discretionary authority to publish the data,” Cunningham said. “Changes sought in legislation that alters the decision-making process is not equivalent to an absence of decision-making ability.”
The data was first released May 3 following three measles cases in Connecticut, hundreds in nearby New York, and this website’s news coverage and requests for the department to release the information.
Gov. Ned Lamont said he would release the 2018-19 school-by-school data last month, overruling Coleman-Mitchell’s announcement just hours earlier on Aug. 28 that she would not release the data for the 2018-19 school year.
The court is expected to hear arguments Monday on the underlying motion to dismiss. The emergency injunction filed by Pavalock-D’Amato following Lamont’s declaration that he plans to release the information at the end of October will be argued next if there’s a reason to proceed.
“Having failed to exhaust their available administrative remedies, the plaintiffs’ motion for declaratory judgment and injunctive relief must be dismissed,” Cunningham wrote.
However, even if the court was inclined to allow the arguments to advance, Cunningham argues that “nothing in the disclosure of vaccination data by school in any way identified the Plaintiffs and therefore did not cause any injury to the Plaintiffs.”
In arguing why Coleman-Mitchell shouldn’t have to testify on the matter, Cunningham says the Festas “concede that direct threats to them were not made by the Defendant and were the result of the Plaintiffs publicly identifying themselves in the pleadings in this case.”
He says the commissioner cannot testify as to the alleged harm suffered by the Festas.
Pavalock-D’Amato sought to call Ducat, the Festas, and Coleman-Mitchell as witnesses. Cunningham objected to calling any witnesses on the motion to dismiss.
“The Plaintiffs go to great lengths to try and convince this court that the mere publication of school-level vaccination rates that do not identify their child was an action taken beyond the authority of the Commissioner. All of the Plaintiffs’ arguments are without merit and should be rejected,” Cunningham wrote.