A decades-old law shielding Wolf administration from scrutiny
HARRISBURG — For the first months of the pandemic, as state officials took sweeping and unprecedented actions to combat COVID-19, the public was cut off from a crucial tool to understand how those life-and-death decisions were being made.
Gov. Tom Wolf's administration in mid-March stopped responding to public records requests, a way for people to obtain copies of government data, emails and other records from state agencies. Without that, Pennsylvanians were forced to rely on elected officials to share as much — or as little — information as they chose.
When the state’s open records process resumed in May, it was supposed to restore transparency. But that has hardly been the case.
Instead, interviews with journalists across Pennsylvania and a review of their communications with the state show officials are broadly applying a decades-old law authored in the heyday of syphilis to deny requests for COVID-19 data and records.
The Disease Prevention and Control Act, passed in 1955, gives the health department wide authority to keep reports of contagious diseases confidential. Most Pennsylvanians likely hadn’t heard of it until earlier this year, when — in the first days and weeks of the pandemic — state Health Secretary Rachel Levine cited it as a reason for withholding the number of COVID-19 tests the state was conducting and the number of cases in nursing homes.
Although the Department of Health later reversed course and made that information public, officials are still using the law to withhold other data and documents. That includes communication between state officials and those tasked with assisting nursing and personal care homes, where thousands of residents have died and even more have been sickened.
As a result, the public may never have a complete understanding of the administration’s at-times inconsistent statements and secretive decisions.
Legal experts say that while the law does include extensive confidentiality provisions, there are also exceptions that permit the administration to be more transparent — if it wants.
“I think a lot of people read the statute, see the word confidential and call it a day,” said Terry Mutchler, a First Amendment attorney with Dilworth Paxson law firm and the founding director of Pennsylvania’s Office of Open Records. “But based on the actual language of the law itself, coupled with previous case law, there is substantial room for the department to err on the side of transparency.”
The health department said it’s already doing that. The department shares daily news releases with the number of new coronavirus cases, has published a data dashboard with testing and hospital capacity information, and has created an early warning system that tracks changes by county.
“Never before in the history of the department have we pushed out this much data this fast,” Executive Deputy Secretary of Health Sarah Boateng said in an interview.
Yet lawmakers and members of the public have repeatedly said it’s not enough. Throughout the pandemic, the Wolf administration has come under fire for failing to release information on cases inside nursing homes, the controversial business waiver process, county reopening metrics and more.
In an effort to increase transparency in the future, the Legislature recently passed a bill forcing state agencies to process public records requests during emergency declarations. While Wolf opted to allow the measure to become law, he cast it as unnecessary and a risk to the health of state employees.
And processing requests is not the same as fulfilling them. The health department is using the Disease Prevention and Control Law to deny many.
Nicole Brambila, a local government reporter with PublicSource in Pittsburgh, filed a request with the state health department on May 21 for the number of pneumonia and influenza deaths by county and date, since 2015. The health department regularly reports statewide totals of those numbers to the Centers for Disease Control and Prevention, and it publishes county-level data on its own website after a two-year delay. Brambila wanted the combination of those datasets, so she could compare changes over time and see if COVID-19 deaths were misidentified as pneumonia or flu and therefore undercounted.
A month after she submitted the request, the health department sent her a link to the CDC website and said they would not provide county-level data. “A strict statutory confidentiality provision prohibits the release of the records you have requested,” the department wrote, referring to the Disease Prevention and Control Law.
Brambila was confused. “They’re already publishing this data,” she said. “I just want it broken down more.” She is currently appealing the decision to the state’s Office of Open Records.
Todd Shepherd, editor of the Delaware Valley Journal, received a similar letter from the health department after he submitted a request in late June for emails sent or received by health officials containing the word “ECRI.” (ECRI is the patient safety and health-care research institute that the state paid $1 million to reduce the spread of COVID-19 in nursing homes.)
“Nursing homes were driving the crisis in Delaware Valley counties,” Shepherd said. “It’s incredibly important for the readers I serve to have a glimpse of how their government was behaving.”
Shepherd was surprised to learn that the health department considered those emails to be reports of disease and epidemiological investigations, which are exempt from disclosure. He’s appealing that decision, as well as another request that was denied by the health department.
“It would be a shame if the department is able to take a law that is intended to shield individual privacy and instead they are able to twist that and shield their own activities and behaviors,” he said.
Spotlight PA reporters have also filed half a dozen requests concerning emails between health department officials and county governments, nursing home trade associations and contact tracing staff. Most of those requests have been partially granted and partially denied.
The records that were granted generally included email invitations to Skype calls and copies of news releases. Other emails, which may include substantive discussion around state actions, were withheld under the Disease Prevention and Control Law.
Spotlight PA is appealing all of the denials.
The health department said it tries to release as many records as it can while still protecting individuals’ privacy under the law.
“We believe strongly that the public does have the right to know how these decisions are made,” Boateng said. “But we also need individuals to trust the department, that we will uphold the principles of the Disease Prevention and Control Law and keep their information confidential.”
Without that trust, individuals may not participate in contact tracing or other public health work necessary to mitigate the pandemic, Boateng said. Even releasing aggregate numbers can be concerning at times, she added, because some counties have smaller case counts that could allow an individual to be identified.
In the past, state and local health departments have relied on the Disease Prevention and Control Law to deny access to records about salmonella and E. coli outbreaks, lead poisoning in schools and cancer outbreaks in state prisons. In several cases, the state open records office has affirmed the departments’ decisions.
But the law does not call for complete confidentiality, Mutchler, the transparency lawyer, said. The law states that health authorities may disclose reports of diseases “where necessary to carry out the purposes of this act.” And in 1988, the Superior Court of Pennsylvania wrote that the Disease Prevention and Control Law “does not weave a cloak of absolute confidentiality.”
That means the health department has discretion over what to release, Mutchler said.
In fact, the agency has already shown that by reversing course earlier this year to release data on COVID-19 deaths and cases inside nursing homes.
In late March, Jo Ciavaglia, an investigative reporter with the Bucks County Courier Times, was getting repeated phone calls from readers worried about their family members in nursing homes and how little information they had about what was happening inside. So Ciavaglia asked county and state officials to release the number of coronavirus cases occurring in long-term care facilities and filed half a dozen records requests on the topic.
But health officials repeatedly denied her requests, citing the disease control law.
Then on May 19 — under increasing pressure from the public, elder advocates and attorneys — the state began releasing a breakdown of cases and deaths at individual long-term care facilities.
“It shows that they have discretion,” Ciavaglia said. “They could have released that info back in March and early April when people were asking for it.”
The health department said it’s constantly reevaluating if and when to release data. Often, officials wait until they’ve collected enough data points to ensure that public information can’t be used to identify specific individuals, Boateng said.
Some lawmakers have suggested revising the 1955 law to address transparency concerns. Sen. Kim Ward, R-Westmoreland, sponsored a bill that would require the health department to share disease reports with county emergency management authorities so they can direct local resources more effectively. It was passed by the Senate and is awaiting a vote in the House.
Sen. Doug Mastriano, R-Adams, has introduced a broader bill aimed at providing “a drastic overhaul” of the law, he said in a statement. That bill is sitting in committee.
Republican leadership in both the House and Senate said they are open to revising the Disease Prevention and Control Law but don’t have any immediate plans to do it.
Mutchler said transparency is crucial right now.
“If ever there is a moment in the commonwealth or in the nation’s history that citizens need to be 100% certain that they have the most accurate information and the ability to assess information provided by a government,” she said, “it is this moment.”
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