This article about false claims from Steve Kirsch about vaccine risks, law, and California, was written by Dorit Rubinstein Reiss, Professor of Law at the University of California Hastings College of the Law (San Francisco, CA), who is a frequent contributor to this and many other blogs, providing in-depth, and intellectually stimulating, articles about vaccines, medical issues, social policy, and the law.
Professor Reiss writes extensively in law journals about vaccination’s social and legal policies. Additionally, Reiss is also a member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable diseases. She is also a member of the Vaccines Working Group on Ethics and Policy.
Steve Kirsch has made a claim that California is violating the law in not investigating his and a fellow activist’s claims about vaccine harms is incorrect. Mr. Kirsch’s article shows, at best, a misunderstanding of what freedom of information acts do and do not do, and a misunderstanding of California law beyond this – and a misunderstanding of our vaccine monitoring systems that is common to work from Steve Kirsch. The sections about the public records act look like another variation of ICAN’s FOIA gambit, echoing their dishonest use of the federal FOIA. The rest is likely reliance on Mr. Baldridge – reliance that appears unfounded.
At worst, of course, the claims are intentionally dishonest, but Mr. Kirsch may well be sufficiently deluded to believe what he says. It’s impossible to know.
Background on the Steve Kirsch vaccine claims
On May 5, 2023, Mr. Steve Kirsch published an article alleging that public records act requests and letters submitted by a former employee of California’s Department of Public Health, a lawyer named Peter Baldridge, shows that the California Department of Public Health (CDPH) is violating California law and looking the other way in relation to COVID-19 vaccine deaths.
To put this in legal context, like other Freedom of Information Acts, California’s Public Records is created and designed to allow disclosure of public records to the public, in certain circumstances. Public records are “any writing containing information relating to the conduct of the public’s business prepared, owned, used or retained by any state or local agency regardless of physical form or characteristics.”
In other words, the Public Records Act is created to allow citizens to get hold of information the government already holds. It is not a tool to make the government answer questions or demand that they conduct investigations. When Mr. Kirsch suggests that when the CDPH responded by saying that there are no records of the investigations it shows something more than whether records exist or not, he is either misunderstanding or misrepresenting what the public records act does.
This echoes a common tactic of the anti-vaccine organization ICAN, which repeatedly makes FOIA requests for things unlikely to be government records, and when it does not receive records, claims a win. ICAN’s lawyer, who does this, should know that this is a misuse of FOIA, and should have long explained that to his clients – which leads me to suspect that the tactic is intentionally dishonest. Mr. Kirsch, however, is not a lawyer, and may sincerely not understand it.
What did Mr. Baldridge Claim and Do?
Looking into the letters by Mr. Baldridge, who is a lawyer, he did not build his main claim on the public records act alone. Mr. Baldridge, in his first letter, alleged that the California Department of Public Health is required to investigate VAERS reports of deaths in California under a section of the health and safety code that empowers them to conduct investigations. Specifically, Mr. Baldridge’s original later claimed:
Health and Safety Code section 100325 provides:
“The department shall cause special investigations of the sources of morbidity and mortality and the effects of localities, employments, conditions and circumstances on the public health and the department shall perform other duties as may be required in procuring information for state and federal agencies regarding the effects of these conditions on the public health.”
As I am sure you are aware, the Vaccine Adverse Events Reporting System administered by the Centers for Disease Control and Prevention indicates that at least 1500 Californians have died as a result of the Covid-19 vaccine, which your Department to this day continues to promote. Many thousands more have reportedly been injured by these vaccines.
Section 100325 establishes an affirmative duty on the part of CDPH to conduct the special investigations described, and the VAERS data regarding the Covid-19 vaccines no doubt justifies such a special investigation, as the vaccines reportedly cause both morbidity and mortality.
Pursuant to the California Public Records Act (Govt. Code §§6250, et seq.), I hereby request all records pertaining to any and all special investigations conducted or being conducted by CDPH into Covid-19 vaccine adverse events. I understand this may require the redaction of personally identifying information regarding any subject of the special investigation.
In this, Mr. Baldridge himself is not misrepresenting the public records act; the request itself would be a public records act request, except for the fact that it is built on a combination of highly problematic and incorrect claims.
First, Mr. Baldridge suggests that §100325 of the California Health and Safety Code, which he quotes correctly, means that the CDPH has no discretion and has to investigate any claim of deaths and harm that any activist makes. There is nothing in the act to actually suggest that.
The act certainly gives the department the power to investigate “sources of morbidity and mortality and the effects of localities, employments, conditions, and circumstances on the public health” but inherent in such authority is the provision of discretion – in a world of limited resources – as to what to prioritize and what to investigate.
Nowhere does the act say or imply “when someone who does not like COVID-19 vaccines tells you you need to investigate VAERS reports, you need to do so”. The reference in the other part of the sentence to the effects of localities, employment, conditions, and circumstances on public health also does not support a focus on what Mr. Baldridge wants to focus on. A grant of authority like this can never mean “you have to do a specific investigation at a specific time,” simply because resources are limited and agencies have to prioritize. Mr. Baldridge’s interpretation, which would require the CDPH to conduct a special investigation on any individual’s request, is problematic.
Further, Mr. Baldridge’s focus for his special investigation request is weak. Mr. Baldridge wants the Department to investigate VAERS reports. But those are already investigated by CDC, and the results of those investigations – using the full dataset, which is not limited to only California – are presented publicly in a variety of ways — via published articles, including about deaths after covid-19 vaccines as well as more specialized studies. VAERS results are also consistently presented in public presentations to the Advisory Committee on Immunization Practices (ACIP at CDC, for example here, here, and here.
In addition, since Mr. Baldridge’s implication is that VAERS reports show that the vaccine actually caused deaths (Mr. Baldridge – wrongly – claims that “1500 Californians have died as a result of the Covid-19 vaccine”), it’s important to remember that this is not true.
VAERS reports do not show causation. The database itself says it. In fact, VAERS reports cannot even be used to say whether the death actually happened, or how it happened. They are unverified reports. When Mr. Baldridge tries to use them as evidence, he is (likely) misled by anti-vaccine misinformation, and is himself contributing to promoting such misinformation.
So Mr. Baldridge is demanding that the CDPH investigate reports that are already intensively investigated, and that do not show the vaccines caused them, at a time when the extensive studying and monitoring of the reports do not support his beliefs. Nor does data beyond VAERS. In fact, a recent study discussed by Orac here again found no association between one type of sudden death and covid-19 vaccines.
This is not a reasonable investigation for CDPH to conduct — there is no evidence the vaccines are causing heightened deaths, and the question is being intensely investigated in several forums. Apparently, that is what the CDPH told him. The CDPH provided him, in a response from April 2023 Mr. Baldrige and Mr. Kirsch chose not to share, with:
1) a link to an article discussing the first six months of vaccine administration in the U.S.,
2) a CDC Morbidity and Mortality Weekly Report from February 26, 2021 discussing the first month of vaccine safety monitoring (December 14, 2020-January 13, 2021, and,
3) three documents of January 2021 CDPH evaluation of a batch of Moderna vaccine that had caused a high number of adverse reactions.
CDPH response
CDPH could have simply told him that there are no records of special investigations on it, but it seems they went beyond their duty and also provided him additional evidence of the fact that vaccine risks are, in fact, investigated in multiple forums. They may have said that – since their response was not provided, we do not know. At any rate, their response more than filled their duty under the public records act, which is only to provide existing records, and did address his request.
In response, Mr. Baldridge repeated his belief that the CDPH is required to conduct a special investigation into the VAERS reports he mentioned. He did not provide any legal authority for that belief, and as explained above, that belief is unreasonable.
The Department responded on April 27, 2023, that there are no such records (unsurprisingly, since there is no real reason for the CDPH to conduct such a special investigation of something that is, in fact, investigated from multiple directions).
Apparently, on May 5, 2023, Mr. Baldridge followed this request with another request. In his new request, he demands that the Department “correlate these data sets” – the data he describes as “records related to deaths in California commencing January 2021, when the vaccine rollout began” and “vaccination records for Californians” “and provide for each individual who has died since January 1, 2021, the following data fields for each individual as follows:
Date(s) of COVID-19 vaccination(s): <if any>
Five-year age range of the individual (e.g. 50-54)
Date of death”
Steve Kirsch may not know that this is not a good public records act request for vaccine safety, but Mr. Baldridge, as a lawyer, should. The Public Records Act does not allow requesters to demand that agencies engage in time-consuming work to create new data. It is a tool to ask for existing data. The request is not a legitimate public records act request, and the agency would be on very solid grounds to say so.
Mr. Baldridge is aware that his request also involves a gross violation of the privacy of people who died. He tries to get around that by demanding that the CDPH create a “random identification number” for each individual. This also requires the agency to create new records, and further, may not fully protect the privacy of people who died in California, and who deserve better than to allow anti-vaccine activists to go digging into their medical records and information.
Mr. Kirsch follows by submitting a similar request to Mr. Baldridge – suffering from the same issues. He then says that he will be “bringing a write of mandamus action” against CDPH for not investigating the injuries and deaths, and if they do not comply with his public records act (which he calls a FOIA request, though FOIA is the federal freedom of information act). It looks like Mr. Kirsch did not talk to a lawyer before deciding to sue, because he is, in his article, asking interested lawyers to contact him.
Talking to a lawyer may have helped him to learn that forcing an agency to act using discretionary powers is very hard. Courts rarely do that and are unlikely to order the agency to investigate problematic anti-vaccine claims about unverified reports that are already intensely investigated. Nor is he likely to succeed in getting a court to tell an agency to create new records for him when there is a long line of cases saying that California’s Public Records Act does not require it.
But anyone can sue for anything.
Professor Reiss writes extensively in law journals about the social and legal policies of vaccination. Additionally, Reiss is also member of the Parent Advisory Board of Voices for Vaccines, a parent-led organization that supports and advocates for on-time vaccination and the reduction of vaccine-preventable disease.
