(The Center Square) – News outlets said last week that Pennsylvania’s Department of Health hides behind other state statutes to block the release of COVID-19 data – but it’s far from the only agency or organization to do so.
During a hearing with the House State Government Committee on March 9, PA Media Group President Cate Barron said law enforcement agencies, the Department of Community and Economic Development and other governmental organizations routinely deny right-to-know requests by claiming the information sought is protected by other state laws.
In the case of the pandemic, it’s the Disease Control and Prevention Act of 1955.
“Reporters say the state and county health departments are overusing the old disease control and prevention law to deny record requests,” Barron said. “This is blocking broader information that would help people gauge the amount of serious disease in their communities.”
The issue first appeared during the onset of the pandemic in March 2020 when the Office of Open Records – along with nearly every other state agency – switched to remote work as Gov. Tom Wolf shut down the Capitol and ordered all residents to stay at home. Records requests submitted through late April received automatic “indefinite” delays, said Executive Director Liz Wagenseller. By late April, the agency issued 30-day stays and by August, stays were used on an “as needed” basis.
But for reporters, that meant answers to questions about how fast and how wide the virus was spreading across the state went unanswered for months, or were outright denied.
In one example, a Patriot News reporter waited more than four months to receive a list from the DCED of which businesses applied for operating waivers during the 10-week statewide economic shutdown.
Other requests about about how many nursing home residents were transferred back from hospitals or how many COVID-19 cases were linked back to schools have been denied based on patient privacy concerns outlined in the DCPL.
Wagenseller said that some of the confusion stems from uncertain terms found in Act 77 – the 2020 transparency law that dictates how the agency handles records requests during a disaster declaration.
The Legislature passed the measure in July after processing times at the Office of Open Records slowed to a near halt four months earlier. Wolf refused to sign it, insisting that it would compel the release of sensitive information that could jeopardize public safety and fearing that state employees would be forced to come to work in unsafe conditions.
Despite this, the measure enjoyed broad support from the General Assembly, the American Civil Liberties Union and the news media alike.
“We all applauded when Act 77 became law,” Barron said. “But it hasn’t been necessarily smooth sailing for transparency.”
After Act 77 went into effect, Waggenseller said agencies continued to dispute the definition of “data” described in the law and how much of it should be public regarding COVID-19.
Appeals – particularly for rejected information requests from the DOH and DCED – have skyrocketed 31% in the last year, she said, though it’s “unclear” what’s driving the increase.
For lawmakers, the delays remain unacceptable. Rep. Paul Schemel, R-Waynesboro, opened the hearing by declaring “the government should not withhold from its citizens that which is theirs.”
“Although the impulse to ask why is understandable, the fact is that the public information the government holds belongs to the public just as much as our roads and parks and it’s not our business to question why someone wants the public information or to question whether they deserve it,” he said. “Were we to travel down that path it would fundamentally alter the government’s relational posture with the citizens it serves.”
Barron suggested the General Assembly revamp the state’s Right to Know Law to publicize many other documents, including disciplinary records for public officials, criminal investigative files and legislators’ emails. A free database that provides the most widely requested documents, as is offered in other states, would lessen the burden on state employees, she said.