A letter from the Kansas Justice Institute to the Riley County Board of Health brought a swift victory for liberty, convincing the Board to make COVID contact tracing voluntary instead of mandatory.  Like the Sentinel, Kansas Justice Institute is owned by Kansas Policy Institute.

Sam MacRoberts, litigation director for the Kansas Justice Institute

KJI Litigation Director Samuel MacRoberts on August 5, sent the Riley County Commission — which also acts as the Board of Health — and Riley County Counsel Clancy Holeman a letter pointing out a recent health order stating “All restaurants and bars shall screen each employee prior to each shift. This shall include asking about symptoms, travel, contact, and checking temperatures. Please use Appendix A for record keeping. These records and other attendance records shall be available to Riley County Health Department staff upon request.”

MacRoberts said the order was very similar to one in the Linn County case KJI filed in federal court in May.

This time, however, a federal lawsuit wasn’t needed, as Holeman swiftly moved to work with MacRoberts to revise the order.

On Monday, August 10, 2020, the Riley County Commission revised the order, making it completely voluntary.

The revised order reads: “It is strongly recommended that all restaurants and bars screen each employee prior to each shift. It is strongly recommended any such screening include asking about symptoms, travel, and checking temperatures. Please use Appendix A for such screening.”

Other restrictions remain in place, but the revision puts Riley County in compliance with the COVID-19 Contact Tracing Privacy Act, which requires — in part — that all participation in contract tracing must be voluntary and that no government can require a third party to collect data and turn it over without the consent of the person to which the data relates.

MacRoberts applauded the move.

“To the best of my knowledge, this was the first time the COVID-19 Contact Tracing Privacy Act was used to protect businesses and citizens,” he said in a statement. “To Riley County’s credit, they immediately made the screening and data collection program entirely voluntary.”

MacRoberts also said he was appreciative of how easy it was to work with Holeman, saying Holeman took the statutory and Constitutional issues seriously.

“The local health order also raised Fourth Amendment issues,” MacRoberts said. “Before, businesses were required to disclose records to the government upon request. Constitutional rights do not get suspended during a pandemic. There’s a clear process by which government can obtain records. The Riley County Commissioners did the right thing by amending the local health order so quickly.

“This is a significant victory for Kansas businesses and citizens. The COVID-19 Contact Tracing Act worked.”

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