Decades-Old Law Shielding Wolf Administration From Scrutiny of Its Coronavirus Response

Numbers don’t lie…. Bureaucrats do!

source: Spotlight PA

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.

The Wolf 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……..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.”

Terry Mutchler
First Amendment Attorney/Dilworth Paxson
Founding director of Pennsylvania’s Office of Open Records

The health department said it’s already doing that. The department shares daily press 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.”

Sarah Boateng
PA Executive Deputy Secretary of Health

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.

Decades-old law is shielding the Wolf administration from scrutiny of its coronavirus response

Calamity Jane