The Portland Press Herald sued the state Tuesday in an attempt to force it to release the names of schools where chickenpox outbreaks have occurred. The newspaper said it is going to court with the goal of protecting vulnerable people from exposure to infectious diseases.

The lawsuit filed in Cumberland County Superior Court would compel the Maine Department of Health and Human Services to release the names of the schools and the number of cases in each outbreak.

The newspaper had requested the school names and case numbers after the Maine Center for Disease Control and Prevention, which is part of DHHS, reported in late May that Maine had four chickenpox outbreaks during the 2014-15 school year – the highest number since the chickenpox vaccine became mandatory for school attendance in 2003.

An outbreak is defined as three or more cases occurring in one school or day care facility.

Maine reported a total of 84 cases in the past school year, nearly double the number during the 2013-14 school year. Of those 84 cases, 57 sickened unvaccinated or undervaccinated children, according to data from the CDC. Maine’s rate of chickenpox outbreaks is triple the national average, according to Maine and federal CDC reports. None of the outbreaks is ongoing.

Under Maine law, parents can opt out of having their children vaccinated for religious or philosophic reasons. Maine’s voluntary opt-out rate of 5.2 percent for children entering kindergarten in the 2013-14 school year was the fifth-highest in the nation, according to the federal CDC.


When the Press Herald requested the school names in June through the Freedom of Access Act, the Maine CDC refused to release them, arguing that it was against state policy. CDC officials said making the information public might identify children who had the disease, compromising patient privacy.

However, in Tuesday’s court filing, attorneys for the newspaper noted that “the Press Herald made it clear that it was not requesting the disclosure of any patient’s identity.”


Cliff Schechtman, the Press Herald’s executive editor, said in a statement that the public has a right to know where the outbreaks occurred.

“The CDC is putting at risk the health of people by refusing to disclose the locations of disease outbreaks,” Schechtman said. “For those Mainers with compromised immune systems, that decision can be tragic.

“Today it’s chickenpox. What if tomorrow it’s deadly meningitis?”


For York resident Susan Murphy – who has leukemia – knowing where infectious disease outbreaks occur can be a life-or-death matter.

“I really feel strongly about this because there’s a lot of people like me with suppressed immune systems who need to know where we can and can’t go and be at risk of exposure,” Murphy said. “The public has every right to know. It’s just wrong that we don’t.”

Kevin Wells, the attorney for the Maine DHHS, wrote in a July 14 letter denying the Press Herald’s FOAA request for information on the outbreaks that “there is no valid public health purpose to releasing these records” because “the chickenpox virus is such a commonplace virus that knowledge of the location of an outbreak would not assist a person from avoiding coming into contact with it.”


Maine CDC Director Kenneth Albert said in a written statement in June that there’s “no medical benefit” to releasing the information.

“The reality is that the release of information related to past outbreaks of chickenpox in Maine schools has no medical benefit. The outbreaks have long since passed, and any symptoms related to chickenpox would have already occurred. In addition, there is a concern that the names of the schools, when paired with the recently released school-by-school immunization data, may allow for the identification of an individual student, which violates state and federal law.”


Maine’s state policy says that it should release “only the minimum amount of data necessary” as a way to protect patient privacy.

The school districts did send notes home with students where the outbreaks occurred, Maine CDC officials have confirmed.

This spring, the Maine CDC released school-by-school immunization data after a Freedom of Access Act request by the Press Herald, so parents can see what the opt-out rate is in their school. Because of its relatively high opt-out rate, the state is at risk of infectious disease outbreaks, according to public health experts. Most parents who forgo vaccinations for their schoolchildren do so on philosophic grounds, according to the data.

A bill that would have made it more difficult to opt out of school vaccinations passed in the most recent session of the Legislature, but was vetoed by Gov. Paul LePage, and lawmakers failed to override the veto with the required two-thirds vote.

Sigmund Schutz, the Press Herald’s attorney, said the state has no legal basis for denying the newspaper’s request.

“I completely support the CDC’s decision to release immunization data by school,” Schutz said. “The same logic would apply relative to releasing the names of the schools that had chickenpox outbreaks.”


Schutz wrote in the court complaint that there’s “no meaningful legal or logical difference” between the two data sets.


The data on school vaccination rates shows which schools are more at risk of infectious diseases, including 60 elementary schools where 10 percent or more of the kindergarten or first-grade students don’t have their required vaccinations.

The lawsuit also says that releasing the information would be important during the public debate on vaccines and whether to make it more difficult to opt out.

“Lawmakers and the electorate cannot vote intelligently on the issue of immunization without being informed where and how often children are getting sick from preventable diseases,” Schutz wrote.

In at least three cases in the 2000s, the Maine CDC released the names of schools or the town where an outbreak took place, including a 2006 chickenpox outbreak in Brunswick.


More recently, the Maine CDC has at times not released the location of infectious disease outbreaks. Last fall, it refused to name the restaurant where a Hepatitis A case occurred.

Deborah Deatrick, senior vice president of community health for MaineHealth and a longtime advocate for statewide public health causes, supports naming the schools where infectious disease outbreaks occur.

“It seems logical to release the information,” Deatrick said. “I think this is a very bold step for the newspaper to take.”


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