Update: One day after this story published, the Department of Health voluntarily provided a spreadsheet listing PPE purchases made by the state. A distribution list, however, is still not available.
The Pennsylvania Department of Health is refusing to provide data on how much personal protective equipment (PPE) it acquired and how it distributed those materials through the first twelve months of the pandemic.
The department denied a Right to Know (RTK) request seeking the PPE data that was filed by Broad + Liberty. An appeal has been made to the state Office of Open Records, but it faces long odds of generating the documents.
The information is crucial to understanding how the state responded to the worst pandemic in 100 years. For example, about 4 weeks into the crisis, the state claimed it was distributing PPE to nursing homes, however those long-term care facilities said they were not receiving nearly enough.
The DOH is using the decades-old Disease Control and Prevention Law (DCPL) to shield the information from disclosure.
“The DPCL allows – but does not require – DOH to release records when it determines release is consistent with the goals of disease prevention,” said Melissa Melewsky, an open records attorney with the Pennsylvania NewsMedia Association.
“That’s not really transparency though because it comes solely at the discretion of the government, with no ability to challenge. Under the DPCL, DOH’s decision on access is final. That’s very different than virtually all other public records in Pennsylvania, which are governed by the Right to Know Law and subject to its presumption of access.”
‘That’s not really transparency though because it comes solely at the discretion of the government, with no ability to challenge. Under the DPCL, DOH’s decision on access is final.’
Spotlight PA, an investigative journalism publication based in Harrisburg, first raised the issue in March when its RTK request for data on spoiled vaccines was denied by the DOH.
However, the reporting from Spotlight PA prompted State Sen. Dave Argall (R – Schuylkill County) to introduce legislation aimed at forcing the disclosure of the data on wasted vaccines. And Argall’s pressure appears to have paid off because, on Wednesday, Spotlight reported that the data had been turned over.
The disclosure of PPE acquisition and distribution would likely not put any personal information at risk, an argument Spotlight and Argall persistently made in seeking the wasted vaccine data.
Susan Schwartz, president of the Pennsylvania Freedom of Information Coalition, agrees that the release of PPE information would be beneficial.
“In the case of PPE, there was clearly a breakdown in getting equipment to medical personnel and first responders who desperately needed it. Understanding what went wrong is vital to preventing similar problems if there is another pandemic. I can’t imagine how keeping documents that would show how it was obtained and distributed secret would protect anyone besides those who should be held responsible.”
‘I can’t imagine how keeping documents that would show how it was obtained and distributed secret would protect anyone besides those who should be held responsible.’
The DOH did not respond to a request for comment on its reasoning for not divulging the PPE data, making it unclear why this data is being withheld while other data regarding the pandemic has been released.
This month, the department turned over 250 pages of information detailing vaccine distribution across the state. That batch did not include vaccines distributed to pharmacies like CVS and Walgreens, most likely because those shipments were made by the federal government and not the state.
Journalists, citizens, and lawmakers have all struggled to pry information loose from the DOH once it began using the DPCL to deny information.
“It is difficult to determine the legislative intent underlying the DPCL because the legislative record is so sparse, but it is important to remember it’s time frame and context,” Melewesky said.
“The DPCL was passed long before state and federal law made personal medical records confidential; there was no HIPAA at the time the DPCL was passed so this was likely one of the first laws in PA to address the issue,” she explained. “The DPCL’s confidentiality provisions, however well intended, are too broad and do not reflect the way current law treats medical records or their interaction with more general information that provide accountability for DOH decisions.”
The Wolf administration has battled transparency concerns on several fronts since pandemic began, even when not directly linked to health issues.
For example, the Wolf administration refused for weeks to offer a list of companies and businesses that had received exemptions from early shutdown orders. As with the recent disclosure of spoiled vaccine information, constant public and legislative pressure eventually forced an about-face.
The Wolf administration refused for weeks to offer a list of companies and businesses that had received exemptions from early shutdown orders.
Both Schwartz and Melewsky say grading the governor on transparency is difficult, mainly because not all of the positive moments are put into the public sphere. But overall, the transparency efforts could have been much more effective.
“Its COVID dashboard, giving information down to the zip code level, was helpful, and it deserves credit for that,” Schwartz said.
“Likewise, the daily press conferences were also important in getting information to the public, along with the fast responses of its public relations staff to reporter questions. But it hid a lot of information,” she continued.
“In its anxiety to protect personal information, it hid the identities of companies that were suffering outbreaks, so workers there didn’t know if they were at risk. It was so vague in reports about deaths, even local coroners couldn’t explain where the state was getting its numbers. It didn’t explain how it decided what industries were ‘life-sustaining,’ even as it put some factories at risk of closing down permanently. And now it’s hiding information about the distribution of PPE. This left citizens suspicious about both the seriousness of the pandemic and the reasonableness of the response.”
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Todd Shepherd is Broad + Liberty’s chief investigative reporter. Send him tips at tshepherd at broadandliberty.com, or use his encrypted email at shepherdreports at protonmail.com.