Florida has long been considered to have the country’s most robust sunshine laws — those promoting government transparency through access to public records and meetings.
But in the face of a pandemic, Gov. Ron DeSantis’s administration is denying the release of crucial public health information, such as the number of hospital beds, available ventilators and the names of nursing homes with outbreaks.
The Miami Herald was in the process of filing a public records lawsuit to force the state to name all of the elder care facilities that have covid-19 cases when the governor’s general counsel pressured the Herald’s longtime law firm to drop its representation of the case.
The suit will go forward under different legal representation.
This attempt to block journalists from vital health information is part of a nationwide trend to scale back access to public information on local, state and federal levels through delaying or outright suspending public records and open meetings rules.
Nursing homes have become a flashpoint for information access, as their residents are among the most vulnerable to the covid-19 pandemic.
The federal government is not tracking cases in nursing homes, which cluster together the highest at-risk populations.
USA Today reported that 2,300 long-term care facilities in 37 states had residents with positive cases, but the picture is incomplete. A dozen states, including Florida, didn’t give USA Today their numbers, and another 13 provided incomplete data.
Florida is blocking the release of the names of its elder care facilities by saying it is protecting the confidentiality of its residents, an argument that appears to invoke the federal Health Insurance Portability and Accountability Act (HIPAA). Under HIPAA, health care providers can’t release information that could be used to identify a patient, but government bodies can release records that remove such information or aggregate data.
Oklahoma’s health department did not release data on nursing homes until early this month.
After citing HIPAA while denying a request from news nonprofit The Frontier, the Oklahoma’s health department released the data late in the day on a Friday.
It revealed that 33 residents and three staff members at a single nursing home in Norman tested positive for covid-19, and 14 residents and staff at other facilities had become infected. That number has since grown to 335 residents and staff testing positive, with 25 deaths.
Ohio also relied on HIPAA while denying requests for data on coronavirus cases at nursing homes before reversing course Monday.
Without this information, state residents did not know about nursing homes that had dozens of infections until days or weeks later. A woman in Ohio unknowingly checked into a facility two days after a resident tested positive for covid-19, and later contracted the illness herself.
Alabama is releasing total cases of nursing home infections but citing state law to shield facility names.
Access to information deferred
While most of the country is cautioning delays on public information requests, especially those requests that cannot be accessed digitally, Louisiana outright suspended records requests.
Nearby Texas stalled the release of public information through a loophole. Texas code allows government agencies to suspend the Texas Public Information Act during catastrophe or disaster for up to 14 days, but Attorney General Ken Paxton stated that if offices are closed due to covid-19, those days do not count as business days even if staff work remotely.
According to a rundown of rule updates from the Reporters Committee for Freedom of the Press (RCFP), at least 17 states and the District of Columbia have suspended open records laws or removed or extended response deadlines, reducing the flow of public information.
Hawaii, New Jersey and Louisiana have suspended parts of their open meetings laws.
Rhode Island’s revised public meetings policies have a loophole that allows government bodies to not broadcast meetings online if they say they can’t afford to. The state also extended its deadline to respond to public records to 20 days. Indiana pushed its deadline to 14 days.
On the federal level, the US Department of State’s ability to respond to Freedom of Information Act (FOIA) requests is almost zero. According to court records, the department lost 96 percent of its ability to process open records requests. The FBI is only accepting FOIA requests through the mail, and the Centers for Disease Control and Prevention (CDC) faces a federal lawsuit alleging the agency denied records requests and restricted communication between CDC employees.
“All in all, many states and localities are trying to do the best they can to navigate these difficult circumstances,” RCFP legal fellow Gunita Singh said. “However, we also see some jurisdictions that have gone too far, taking actions that severely restrict the public’s right to know at a time when the public needs access to accurate and timely information more than ever.”
During his state of emergency proclamation, New Jersey Gov. Phil Murphy removed the requirement that the state must respond to records requests within seven days. New Jersey, which is among the hardest-hit states in the country by the novel coronavirus, isn’t releasing information that normally would be uncovered through its sunshine laws, including a $950,000 settlement in a lawsuit alleging a police department fabricated evidence.
Singh said that Hawaii, New Jersey and the District of Columbia’s approaches are among the most extreme taken to curb public information access during the covid-19 pandemic. The DC Council, for instance, voted to allow entities to refuse to process FOIA requests during covid-19 closures.
“So, essentially, as long as we’re still dealing with covid-19, the DC government can treat each day like a weekend or a holiday and refuse to altogether process records requests,” Singh said. “This is highly problematic given that the public’s need for information is at its apex during times of crisis.”
Indiana Gov. Eric Holcomb issued an executive order that said complying with public records deadlines hindered the state’s handling of the emergency. Indiana state agencies switched to answering public information requests in what it deems a “reasonable amount of time,” while suspending requests made by telephone.
Florida’s famed sunshine laws put to test
In 1905, Florida became the second state after Utah to put sunshine laws on the books. Following Watergate, Florida passed its Government in the Sunshine Act in 1976, one of the laws that laid the groundwork for the Freedom of Information Act on a federal level.
After DeSantis became governor last year, his administration started to chip away at the state’s robust sunshine laws, and it has continued to do so during the covid-19 pandemic. In addition to the dispute over nursing home information, the state department of corrections is denying the release of the number of inmates testing positive for coronavirus in facilities run by the state.
In other parts of Florida, counties are denying the release of information as basic as the number of available ventilators, according to Virginia Hamrick, legal fellow with Florida’s First Amendment Foundation.
“Florida’s (sunshine law) is so robust that it should be stronger, and we keep seeing these denials, and in some cases, we’re not even seeing statutory exemptions,” Hamrick said. “The agency is just not complying and not responding to records requests.”
Hamrick said she has sent records requests to counties across the state to see how they’re responding, and they provide answers in a reasonable time period in some cases.
“But it’s not across the board,” Hamrick said, noting that information relating to covid-19 is less likely to be received. “Some of the requests are not seeking personal identification of the patient. It would not identify personal health information, but they’re still denying.”
No sunshine in the Pacific
As executive director of Common Cause Hawaii, which advocates for government accountability and voters’ rights, Sandy Ma is used to spending her workdays attending governmental meetings and planning community organizing efforts.
Last month, Hawaii Gov. David Ige issued an emergency declaration that suspended open meetings laws and access to public records, making it one of the most controversial anti-sunshine laws decisions in the country.
“We understand government needs to focus on the public health crisis, but the people need to know what the government is doing, especially because it gives us comfort to know what our government is doing to protect us,” Ma said by phone from Honolulu. “We’re not casting aspersions on what our government is trying to do. We just need to know, because we’re sitting at home and our imagination is running wild.”
According to nonprofit news organization Honolulu Civil Beat, a panel of state senators held a closed-door meeting on quarantine efforts at Hawaii airports in March. Those meetings are now broadcast but being held without public comments.
Ige’s order created an uneven interpretation of public access to information. Ma said organizations like the state campaign spending commission suspended April sessions altogether, while the state ethics commission held its meeting at the end of March and allowed public comment through teleconference. The Hawaii Board of Education held its April meeting, which involved waiving graduation requirements and remote learning requirements, without public comment.
“If the board of education members could participate (remotely), why couldn’t the public remotely?” Ma said.
Weak open records laws before and after covid-19
In contrast to New Jersey is Oklahoma, which has public records laws that lack a deadline under normal circumstances. Oklahoma state and local agencies must respond to records requests in a “prompt and reasonable” amount of time, allowing requests to legally linger for years without being filled.
Frontier editor in chief Dylan Goforth said he’s seen records requests, particularly under former Gov. Mary Fallin, spend years in limbo.
The Tulsa World and former Frontier editor in chief Ziva Branstetter waited two and a half years to receive documents related to the botched execution of Clayton Lockett. Lockett writhed in pain for 48 minutes and ultimately died of a heart attack after receiving an untested cocktail of lethal injection drugs in 2014. Almost three years after Lockett’s death, an Oklahoma County district judge ordered the state turn over the documents.
“A judge said, ‘Hey, that was not prompt and reasonable,’ and then that was the end of it,” Goforth said of the Lockett documents. “It’s not like they charged (the state) with a crime. They weren’t admonished and didn’t really help us.”
In cases where open records requests are significantly delayed, Goforth said that he’s in favor of writing a story detailing the information they’ve asked for and why it’s needed.
“I feel like a lot of times that gets the ball rolling,” he said. “A lot of times, it’s your only weapon and all you have.”
The effort to get public information related to covid-19 in Oklahoma began before the state’s first official case was reported, Goforth said. The Frontier began by asking the corrections department if they had plans in place if inmates became infected. He said multiple requests for information were returned only with, “We have a plan,” without offering any details.
“Of course, now you’ve got inmates who have been in multiple prisons test positive,” Goforth said. “No one knows what their plan is for that, because they wouldn’t talk about it when we asked them about it. It has been a struggle like that.”
The Frontier and other state media organizations have asked for racial demographic data for covid-19 infections after statistics nationwide showed black people dying at higher rates than white people. Oklahoma released partial race information at the end of last week.
“We’ve been asking for racial data for a month, but it turns out that they weren’t necessarily collecting it early on,” Goforth said.
“We’re trying to be aware that it is unprecedented for them, as well — not just the coronavirus and response, but the media attention,” he added. “I feel better this week about how Oklahoma is handling the media aspect and the data releases than I did two weeks ago.”
Elsewhere, positive moves for access
Some traditionally conservative states are taking proactive steps to preserve open meetings laws. Kansas Attorney General Derek Schmidt said that public bodies “need to go the extra mile to ensure actions are being transparent during the time of emergency,” while making allowances that meetings cannot be held without allowing public comment through telephone or videoconference.
Virginia Gov. Ralph Northam said that remote meetings will include public access, adding, “We’re not throwing out accountability and transparency measures because there is an emergency.”
In Michigan, a three-county health department suspended a deadline to respond to records requests in five day on March 27. In early April, Gov. Gretchen Whitmer extended an executive order that relaxed parts of its public information act by discouraging requests done by mail, fax or in person. The order also kept in place its deadline to process public information requests in five days.
Attorney Jennifer Dukarski, deputy general counsel with the Michigan Press Association, said that Whitmer overall is more committed to protecting freedom of information than previous administrations in the state, and her current order is another example.
“You can see there was definite thought by those in the executive position, most especially our governor, to try and balance the rights and the safety,” Dukarski said. “It wasn’t just a slamming the door shut, as the governor recognizes both positions have value and tried to do her best to meet in the middle.”
Jacob Threadgill is a freelance journalist based in Oklahoma City. He previously worked for the Clarion-Ledger in Jackson, Mississippi and the Oklahoma Gazette in Oklahoma City. He can be reached at jthread87@gmail.com.
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