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Judge finds Virginia agency violated FOIA by not releasing overdose data

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A circuit court judge on Friday found that the state Office of Emergency Medical Services violated the Virginia Freedom of Information Act and ordered the agency to comply with a request from an advocate for addiction recovery.

The case stemmed from a monthslong back and forth in 2021 between the recovery advocate, Michael McDermott, and OEMS, which is under the Virginia Department of Health.

The office’s failure to provide data it previously had turned over “pushed me to the brink,” McDermott said in an interview. “It’s a shame that public dollars had to be used here.”

Judge Timothy K. Sanner in Goochland County ruled that the office’s referral of McDermott to an online data portal violated FOIA because the portal doesn’t have all the information he asked for and the office didn’t cite any FOIA exemption. The judge found the data portal is failing to comply with FOIA and found that some data on overdoses may have been omitted.

The judge ruled that McDermott prevailed in his case, and ordered the office to either provide McDermott with the data he requested or cite a FOIA exemption by May 9.

He ordered the office to pay $200 for McDermott’s court filing fees and $5,850 in attorney’s fees. Attorney Andrew Bodoh represented McDermott.

McDermott, 69, is recovering from substance use from his mid-teens until he was 41, and now helps others in recovery. He gathers state overdose data and analyzes it in charts on his website, Faces and Voices of Recovery of Virginia (www.favorva.org).

After receiving data on overdoses reported to EMS agencies in Virginia from 2017 to 2020, McDermott sought 2021 numbers. That’s when, he said, he began months of phone calls and emails with state officials, who told him that a data migration stemming from a new vendor was hindering their ability to provide data.

McDermott took the issue to court, and a Goochland general district court judge in October ruled that the state didn’t need to turn over the 2021 data because the data migration was hindering the state’s ability to do so. McDermott appealed to circuit court for Friday’s hearing.

The judge on Friday, after a hearing that lasted about three hours, found that McDermott requested overdose data, including alcohol overdose data, from January 2021 to September 2021. OEMS did not meet a Sept. 30 deadline and never asked for an extension under FOIA, the judge found.

In November 2021, the OEMS associate director referred McDermott to the data portal and told him the data he sought was there.

McDermott analyzed the data in the portal and found that it didn’t match the historic data he had for several years prior to 2021; the numbers of overdoses in the portal were significantly lower than the data the agency had previously given him.

“He noticed substantial anomalies in the data,” Bodoh said in court. “All of this indicated that somehow the government was messing up on its data management — that it was not giving him all the data he requested.”

McDermott found that while his historic data showed about 50% of overdoses as being alcohol-related, the portal showed that number being only about 5%.

He testified in court that it was only last week that he realized alcohol overdoses were not in the portal data.

McDermott filed his court case against OEMS Director Gary Brown, who sat in the courtroom on Friday.

OEMS Associate Director Adam Harrell testified that alcohol-related incidents are not included in the portal because OEMS does not believe local EMS agencies can accurately determine if someone is intoxicated, and data on alcohol overdoses may not be accurate.

But Harrell acknowledged that the office can provide McDermott with alcohol data; the search and data compilation take about 15 days, he said. And he said the office anticipates alcohol data being included in the portal by the end of the year.

There’s another wrinkle in the case aside from the lack of alcohol overdose data in the portal.

The overdose data that is available in the portal shows a steep drop-off in overdoses in the summer of 2021: The number was 1,900 in May and 2,000 in June, then it dropped to 750 in July and just 275 in August before returning to standard levels, McDermott said in court.

Bodoh asked OEMS’ Harrell about that, and he agreed it was an anomaly.

“I see an area in that graph that needs further research by epidemiologists,” Harrell testified.

Bodoh argued that even if OEMS does not think its alcohol-related data is accurate, McDermott still has a right to get that public information and interpret it how he wants.

Bodoh acknowledged that the office was trying to help the public by making data available in the portal, but said the office still needed to comply with FOIA. And it needs to fix any problems with the portal so other people will get truthful data, he argued.

Assistant Attorney General Krista Mathis Samuels, representing OEMS, said the office believes the data in the portal is accurate, and officials thought they had reached an agreement with McDermott. But she acknowledged the FOIA violations.

“Obviously, there are issues with the way that my client responded to the FOIA request,” she said.

pwilson@timesdispatch.com

(804) 649-6061

Twitter: @patrickmwilson

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pwilson@timesdispatch.com; (804) 649-6061; Twitter: @patrickmwilson

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