A lengthy court battle between a reporter and the Pennsylvania Department of Health will either give insight into behind-the-scenes happenings of the pandemic lockdown, or it will change the precedent for Right to Know requests submitted in Pennsylvania.
If the latter should happen, many open-government experts say the public, journalists and others will be hindered in their ability to obtain records from governments in the commonwealth.
Under the Right to Know law, ambiguous requests can be subject to denial on grounds of being insufficiently specific.
However, specificity denials can be used as a barrier to public access against citizens with no knowledge of how agencies refer to information: case in point, Shepherd v. Pennsylvania Department of Health, which could raise an already overused wall.
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Todd Shepherd, chief investigative reporter at Broad + Liberty, was working at Delaware Valley Journal when pandemic lockdowns were enforced in Pennsylvania in 2020. On July 7 of that year, he filed a Right to Know request with the Pennsylvania Department of Health (DOH), seeking all inbound and outbound emails for Health Secretary Rachel Levine and Executive Deputy Secretary Sarah Boateng from March 16-18, 2020, a three-day period encompassing the first day lockdowns were enforced.
“I submitted the request because I wanted to get a deeper look into the executive-level action at the Department of Health for three of the most consequential days in its history, and in the history of the commonwealth as well,” Shepherd said.
“Without a doubt, I wanted to see if emails at the DOH executive level would make any news, but I also felt obtaining this information was important, historically, given that there ought to be rigorous study in the coming years about how various governments responded to the pandemic.”
On July 24, the DOH denied Shepherd’s request, deeming the request “insufficiently specific” because it “clearly fail[ed] to provide any subject matter by which the Department may narrow its search for records,” citing the Pa. Commonwealth Court’s 2015 ruling in the case Pa. Dep’t of Educ. v. Pittsburgh Post-Gazette.
The DoH also argued that the requested emails are exempt from public access under the Disease and Prevention Control Law (DPCL) because they include “individually identifiable health information … exempt personal identification information … and records related to a noncriminal investigation.”
On Aug. 14, Shepherd challenged the denial in an appeal to the Office of Open Records (OOR).
In March 2021, the OOR ruled in Shepherd’s favor. According to the OOR, Shepherd’s request was sufficiently specific, as the request was limited by recipient and sender (Dr. Levine and Ms. Boateng) and also identifies document type (emails).
On March 22, the DoH petitioned the OOR for reconsideration, claiming again that the ruling was in conflict with Commonwealth Court procedure established in Pa. Dep’t of Educ. v. Pittsburgh Post-Gazette in that it did not specify subject matter. The DoH argued that the ruling “creates a slippery slope whereby a requester may circumvent the Commonwealth Court’s specificity requirements by submitting successive requests that lack subject matter, provided they are confined to short periods of time.”
The OOR denied the request on March 31.
“I review approximately 1,000 RTKL cases per year, and a very high percentage of them include a specificity denial, even when the request parameters are clear and unambiguous,” says Melissa Melewsky, Media Law Counsel for the Pennsylvania NewsMedia Association. “The specificity requirements of the RTKL exist so that public employees can locate responsive records. They were not intended, and should not be used, to impose unreasonable requirements on requesters who lack specific knowledge about how agencies create, store, manage or refer to information.”
The DoH elevated the matter to the Commonwealth Court in a petition filed on April 7, 2021.
On May 13, 2022, Judge Lori A. Dumas of the Commonwealth Court discerned “neither error of law nor abuse of discretion,” and affirmed the OOR’s final determination in Shepherd’s favor. The DoH quickly petitioned the Commonwealth Court for reconsideration, and was denied on July 7.
“The Commonwealth Court, for me, nailed it in footnote 5 [of the docket file],” Shepherd said. “The DOH had complained that the days for which I requested emails were ‘significant.’ If ‘significant’ meant a high volume of emails, the court said it rejected those concerns. Then the court went on to say, ‘…if by ‘significant,’ the Department seeks to highlight the concerns it confronted during the early days of the pandemic, we view that as the rather obvious subject matter implicit to Requester’s request.’”
If the Department of Health wins this case, it will basically allow bureaucrats to hide information in a tangle of red tape. Don’t know the specific name of the study that led to the lockdowns? Sorry — your request is insufficiently specific for us to fulfill it.
On Aug. 5, the DoH petitioned to the Supreme Court of Pennsylvania to allow for an appeal. As of this writing, the Supreme Court has yet to accept or deny a hearing for the appeal.
“While we of course believe our final determination is legally sound, we will look to, consider, and accept any additional guidance provided by the Supreme Court,” said Kyle Applegate, Chief Counsel of the OOR, when asked about the future of this case, should it ultimately be heard.
Should the Supreme Court overrule the Commonwealth Court and hold in the DoH’s favor, the precedent for Right to Know requests in Pennsylvania could change in a way that makes things more difficult for those requesting information.
“If the court does accept the case and the justices agree with the Dept of Health’s position, it would expand a barrier to access that is already overused,” says Melewsky. “The specificity requirements must be read in harmony with the good faith, presumption of access and burden of proof provisions that form the cornerstones of the law, but unfortunately, specificity denials often do not, and they have become problematic…
“An agency saying it can’t locate records is very different from an agency saying it won’t look for records. The OOR and Commonwealth Court recognized the important access issues presented by this case, and if the Supreme Court accepts the appeal, hopefully the justices do as well.”
Susan Schwartz, President of the Pennsylvania Freedom of Information Coalition, had similar sentiments about this Right to Know case:
“Reporters and members of the general public who are not intimately familiar with the internal workings of a department sometimes can’t ask for the specific documents they need — they don’t know the names of those documents, or even what exists. They have to make more general requests just to figure out what documentation is available. In addition, sometimes a requester might be looking for information that has no specific definition — for instance, a reporter trying to find out what information may have been influencing the health secretary’s decision to lock down the state.
“If the Department of Health wins this case, it will basically allow bureaucrats to hide information in a tangle of red tape. Don’t know the specific name of the study that led to the lockdowns? Sorry — your request is insufficiently specific for us to fulfill it.”
(Disclosure: Shepherd is a director with voting rights with the Pennsylvania Freedom of Information Coalition).
The DoH did not respond to a request for comment.
Leslie Sattler edits for Broad + Liberty. Previously, she worked as Managing Editor at Our National Conversation, a startup specializing in nonpartisan journalism. She has a degree from NYU. @LeslieASattler