A parent in the Unionville-Chadds Ford School District who has been pushing the district on issues of transparency centered on the pandemic now says the district responded in bad faith to a documents request made by a state senator via the state’s open records law.
Chad Williams, who has had four children in the district at various times, has been on a two-year odyssey in trying to get the UCFSD to disclose the legal basis for many of the pandemic decisions it took, such as closing in-person schooling, adding mask mandates, and more. If he’s correct that the district may have acted in some instances without any legal justification to do so, his struggle raises important questions of the rule of law, and how various government agencies use their authority, especially in times of emergency.
As his frustration grew after getting no answers to his questions, Williams successfully enlisted the help of State Sen. Scott Martin, a Republican serving the 13th District in parts of Lancaster and Berks counties, hoping the senator could get answers where he had failed. Martin was chair of the Senate education committee at the time, but has since moved to another committee as the new 2023 General Assembly was organized.
“Martin, a leader in the effort to limit Democratic governor Tom Wolf’s Covid-era emergency powers, has argued that it is important to reassess local responses to the pandemic,” reported the conservative magazine National Review in October. “And, he said, concerned parents should not be left in the dark about the legal basis for school-district decisions or the consequences of those decisions for students. ‘A citizen asking where a government has rooted powers, they deserve answers,’ Martin told National Review.”
Sen. Martin originally sent a letter to UCFSD in June following up with many of the same questions Williams had been asking. But after receiving peppery responses from the district, Martin sent an itemized list of questions to the district in August, which the district then turned into a formal Right to Know request.
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For example, one of the items on the request asked for a copy of documents of a “District resident demanding that the District provide a detailed statement or written opinion of counsel setting forth the source of its legal authority to enforce its pandemic related policies including but not limited to mandatory masking and providing in-person schooling.”
As the records request morphed into an appeal at the Pennsylvania Office of Open Records, the district asserted that the senator’s request, including the portion quoted above, was insufficiently specific, in part because it did not list a date range.
Even though the OOR would eventually agree that the quoted portion of the request was insufficiently specific, the office also noted simultaneously that, “Neither the courts nor the OOR endorse needlessly interpreting a RTKL request when a reasonable reading of the text would allow, at least, the provision of many plainly responsive records.”
Which is where Williams comes back in. He had previously sent emails to the district that easily matched the first criteria of Sen. Martin’s request. One of them had a subject line of “Demand for Legal Opinion from the Unionville Chadds Ford School District.” None of those emails were turned over in response to Martin’s request.
Williams argued his case to OOR officials the district had conducted a “bad faith” search by not producing plainly responsive documents. But the OOR told him he lacked standing in the matter because he wasn’t the requester, and the OOR had already issued its final determination in the matter.
“Any potential remedy you may have will need to be obtained from a reviewing court,” Joshua T. Young, deputy counsel for the OOR, told Williams in an email. “Absent a reviewing Court’s Order remanding the matter to the OOR for further consideration, the OOR is precluded from making any further decisions or determinations on this issue.”
If the district was going to be held accountable for an alleged bad-faith search, Sen. Martin was going to have to file a court action. And the 30-day window to do so closed last week. A spokesman for Martin says his office couldn’t take up successful litigation with such limited legislative practicality, but also that his office hopes it gave Williams what he needed to continue to move the issue forward.
The district did not return a request for comment on whether it failed to produce “plainly responsive documents,” as the OOR suggested was proper. The district — like any government in Pennsylvania — also had the option to provide documents at its discretion, but did not do so.
“In an email to National Review, the Unionville-Chadds Ford School District denied it is dodging questions about the legal authority it had to impose various pandemic-era policies,” the magazine reported.
“Our district has answered these questions throughout the pandemic and beyond and has been fully transparent to our citizens,” the email from the district said. National Review also reported that the district “invited Senator Martin to visit us in person for a conversation and to see firsthand how our students are thriving in our school district,” adding that “he has not responded to our invitation.”
Sen. Martin told National Review in August that the district was stonewalling. “You can see the tack that they’re taking. They don’t answer any questions. They’re very arrogant in their response.”
As for Williams, he says his core concern has not drifted.
“This is a civil liberties issue,” Williams said in an emailed statement. “They’re my kids, not the state’s kids. If I tell people in authority that they are hurting my children, they owe me an answer (as a citizen and a human) about the source of their purported authority.”
“The Pennsylvania Supreme Court ultimately reached the same conclusion I did — the school district didn’t have the authority to enforce those policies without going to the General Assembly,” Williams said, referring to the court case Corman v. Beam which struck down a statewide mask mandate for schools from the state department of health. “So now parents deserve answers about how this happened and how we can be sure it will never happen again. If government officials aren’t bound by the rule of law, then we are subject to their whims. This isn’t a left or right issue. This is a matter of fundamental civil rights.”
Issues about the rule of law and the pandemic have bubbled up in other places, mainly driven by citizens who have relentlessly pressed the question, whether in the public square or in the courtroom.
In Bucks County, a group of activists who have obtained thousands of documents related to the county’s Covid guidance have asserted that county officials cut out the county health director when issuing new guidance in August 2021. If that happened in the manner they allege, they believe the county officials usurped decision making authority that belonged to the health director.
I don’t know that we’ve seen — we haven’t seen any kind of a deluge of sanctions being imposed in Right to Know Law cases. It is still exceedingly rare.
In the matter of Corman v. Beam, in which the Pennsylvania Supreme court struck down the mask mandate, the court’s ruling was nuanced, but also a resounding 6-0. The court essentially said the state health department had the power to issue mask mandates, but the department failed to follow statutorily mandated rulemaking processes given that Gov. Wolf’s emergency declaration was no longer in effect.
“The justices upheld a lower-court ruling that Alison Beam, the acting state health secretary, lacked authority to require masks, did not follow state laws about enacting regulations and acted without a required existing disaster emergency declared by the governor in place,” an AP report said.
As one might expect from the state’s highest court, the ruling was an emphatic affirmation of the strictest adherence to the rule of law, even when the circumstance is the chaos of a one-in-one-hundred-year pandemic.
“[N]othing we say here today should be construed as limiting the Department’s authority to amend or promulgate regulations in accordance with the Disease Prevention and Control Law and any other applicable regulatory statute,” the court said in its ruling. “As it stands now, though, we are constrained by the terms of the regulation before us, not the regulation that the Secretary might have hoped the Department had written.”
In another instance, a lawsuit challenging prior school district mask mandates was dismissed, largely since the issue was no longer ripe because the requirement had been dropped by the time the case was set to be heard.
And where Williams and Sen. Martin were concerned, winning “bad faith” arguments on open records is still a tough hill to climb, even though there have been recent breakthroughs in that category.
“We had record-breaking Right to Know Law fees imposed against the Department of Corrections in the Uniontown Newspapers case $120,000 as a result of bad faith,” said Melissa Melewsky, an open records expert and attorney with the Pennsylvania NewsMedia Association. “And I think that kind of opened other court’s eyes to the fact that these sanctions are available and appropriate in many circumstances. I don’t know that we’ve seen — we haven’t seen any kind of a deluge of sanctions being imposed in Right to Know Law cases. It is still exceedingly rare.”
With the “bad faith” argument made moot because the time to file had expired, Williams says he isn’t done fighting.
“My next move is to bring national attention to this, if I can,” Williams said. “I also have another pending request. Depending on how the District responds I will evaluate what I do next.”
Todd Shepherd is Broad + Liberty’s chief investigative reporter. Send him tips at email@example.com, or use his encrypted email at firstname.lastname@example.org. @shepherdreports