By Rachael Scarborough
Government agencies are using COVID-19 as an excuse to delay requests for information. In a panel discussion held April 16, journalists and legal specialists learned how they can fight back.
The meeting, held on Zoom with over 80 attendees, was hosted by the First Amendment Coalition and Society of Professional Journalists NorCal.
“There are many agencies across California that are using this crisis to avoid their obligations under the Public Records Act, and that’s just wrong. It’s wrong as a matter of law, it’s wrong morally, and it’s bad public policy,” FAC Executive Director David Snyder said.
The California Public Records Act, passed in 1968, requires disclosure of governmental records to the public upon request, unless exempted by law. This right to access was strengthened by an amendment to the California Constitution passed by voters in 2004. Journalists and activists depend on access to public records as a tool to hold government agencies accountable.
“It’s especially crucial in the middle of a public health crisis that information about our government be made public as promptly as possible,” Snyder added.
Panelist Ashly McGlone, an investigative reporter for Voice of San Diego, faced request denials while working on a story about how San Diego County had prepared for the possibility of a COVID-19 outbreak. She sent 83 requests to San Diego agencies. Fifty-seven agencies said that they were not able to respond due to the crisis “until normal business resumes.” Ten agencies did not respond at all.
Panelist and Investigative Reporter Matt Drange for the online publication Protocol described a similar experience. He requested records from Fremont city officials about why Tesla was allowed to continue operations in its Fremont manufacturing plant after the shelter-in-place order had been issued. City officials had been sent home and “basically said we can’t get to this until we get back to the office,” according to Drange.
“We had our lawyers follow up with a letter that basically said, ‘You can’t do that.’ Pretty quickly after that we got back the email exchanges we wanted,” Drange said.
“The squeaky wheel gets the grease. It’s really important to push back,“ Synder emphasized.
McGlone said some agencies she contacted acknowledged that “E-mails are electronic and can be accessed remotely” and cooperated with her requests. She used that argument to pressure other agencies that had refused or ignored requests, and has started getting more results.
Several attendees noted that agencies have been citing HIPAA regulations as a reason to deny requests.
“HIPAA is about protecting individually identifying information. Releasing statistical information is not going to compromise an individual’s identity. Overly aggressive use of HIPAA is preventing crucial information from being released that tells both the public and public health officials how the virus is developing,” Synder said. Attendees also raised concerns about orders from the mayors of San Francisco and San Jose to temporarily suspend parts of their Sunshine Ordinances which are more pro-transparency than the state law, according to Snyder.
Snyder said the SPJ drafted a letter to Mayor London Breed taking issue with her role in rolling back some of the provisions.
Panelist Aaron Field, a member of SPJ and associate at the law firm Cannata, O’Toole, Fickes & Olson, added, “I haven’t seen a firm end date in connection with the suspensions and that’s a big concern.”
Synder said that with the courts partially shut down, journalists need to use tools other than the legal system to push back on agencies that are using COVID-19 as an excuse to delay responses. “Make a story about the fact that an agency is not producing records. Put pressure on them with your journalism,” Snyder advised.
“Government is exercising a lot more power over how we live our daily lives. It’s all the more important for us to look behind the curtain and see what’s happening,” Field concluded.