Public access to pandemic statistics arbitrarily blocked, official Georgia Open Records Act request denied by DPH, process hobbled by red tape.
Following is an account of ConnectLocal’s attempt to obtain facts and information of public interest on behalf of the citizens of Stephens County.
I am making this sequence of events public for two reasons:
If, in fact, the information I am seeking is, in final retrospect, not of significant enough importance to the citizens of Stephens County to warrant attention, then that will impact and influence my level of persistence in pursuing the the matter. The term “pick your battles” is extremely relevant to journalism, and if the data that I have been attempting to obtain is no longer of sufficient interest to the public, then there is a possibility that an extended battle for open access would better be served as held in reserve for a more “trending” topic (although, even just in principle, there is logic that weighs on the side of persistence, regardless of the timeliness and popularity of the specific material).
The second, and perhaps more important reason is that, if there is interest from the citizens in obtaining this data, or in protecting the right of oversight in principle alone, then there is strength in numbers. The power of the press is nothing compared to the power of a populace with a ballot at their disposal.
In pursuit of obtaining data regarding COVID-19 testing within Stephens County for purpose of informing local citizens, ConncectLocal communicated throughout March and early April with multiple representatives of the Georgia Department of Public Health, at the local, regional and state level, to obtain records of testing conducted for COVID-19 within Stephens County.
Several attempts to request the data through informal means were met with resistance
Deciding that I would have to make a formal request for the information I sought under the Georgia Open Records Act, I again contacted the Public Information Officer for the DPH District 2 office. He clarified that the information that I sought – testing numbers and results for Stephens County – was not in the possession of the District Office, and said I would need to contact the State Office. I was directed to contact Nancy Nydam, Director of Communications, Georgia Department of Public Health in Atlanta. Ms. Nydam and I had spoken by email earlier in the year when I was attempting, unsuccessfully, to discover if there were any COVID-19 testing sites in Stephens County other than the hospital and the local Public Health office.
I contacted Ms. Nydam and was once again told that I would not be given the information I was requesting. I obtained from Ms. Nydam’s office the accepted process for submitting a Georgia Open Records Act request, and was directed to the website portal for the DPH General Council Division, where an email address was provided though which to submit a GORA request.
Below is the information requested in my request (a full copy of the request is included at the bottom of this article).
The Total number of Covid-19 tests conducted, from all facilities located within the county borders, including, but not limited to, the Stephens County Hospital, the Public Health Department, The Toccoa Clinic, and any/all Primary care physicians or other entity conducting testing within the county limits.
For each test, I asked for the following information:
Test results (ie: positive, negative)
Age and gender of the person tested
Reason for testing (known contact, symptomatic, etc)
For those that tested positive, please advise whether they were hospitalized or not.
What information is the public guaranteed access to under GORA?
According to the Georgia Open Records Act, “'All public records shall be open for personal inspection and copying, except those which by order of a court of this state or by law are specifically exempted from disclosure.
Public record' means all documents, papers, letters, maps, books, tapes, photographs, computer based or generated information, data, data fields, or similar material prepared and maintained or received by an agency or by a private person or entity in the performance of a service or function for or on behalf of an agency or when such documents have been transferred to a private person or entity by an agency for storage or future governmental use. Agency" means: Every state department, agency, board, bureau, office, commission, public corporation, and authority...”
Under those definitions, it is my firm belief that the data I requests falls under the umbrella of GORA.
Did the information I requested fall under one of the legally specified exemptions to the requirement of Open Records?
There are 45 specified types of data that are specified as exempt from the requirements of GORA. The vast majority of them are extremely specified in nature, including such things as “Records of the State Road and Tollway Authority “or “Records that contain site-specific information regarding the occurrence of rare species of plants or animals.”
The full list of exemptions can be read in the body of the Act. The exemptions that I felt would possibly be used to deny my request were the following:
Records specifically required by federal statute or regulation to be kept confidential;
Medical or veterinary records and similar files, the disclosure of which would be an invasion of personal privacy;
Records that reveal an individual's social security number, mother's birth name, credit card information...Items exempted by this subparagraph shall be redacted prior to disclosure of any record requested pursuant to this article;
Records disclosing the identity or personally identifiable information of any person participating in research on commercial, scientific, technical, medical, scholarly, or artistic issues conducted by the Department of Community Health, the Department of Public Health, the Department of Behavioral Health and Developmental Disabilities, or a state institution of higher education whether sponsored by the institution alone or in conjunction with a governmental body or private entity;
Knowing that exemptions were specifically given to data containing personal information such as those exemptions listed above, I specifically stated in my GORA request to the GDPA that I was not seeking any identifying data from the tests, only the specific data fields from the testing information – data that was already being released at a statewide level and therefore clearly of public interest by the DPH own estimation, and clearly not confidential, by DPH’s own estimation, since they already publicized the information in a statewide report – I was only requesting the same information as had been published, but limited to Stephens County.
The terms of GORA also provide exemptions regarding computer programs and reports, but in each case, provide very detailed limits to those exemptions:
“Records consisting of any computer program or computer software used or maintained in the course of operation of a public office or agency (are exempted); provided, however, that data generated, kept, or received by an agency shall be subject to inspection and copying as provided in this article;” the Act states.
The terms of GORA also specify that “nothing in this chapter shall require agencies to produce records in response to a request if such records did not exist at the time of the request. No public officer or agency shall be required to prepare new reports, summaries, or compilations not in existence at the time of the request.”
However, the Act also specifically states that “As provided in this subsection, an agency's use of electronic record-keeping systems must not erode the public's right of access to records under this article. Agencies shall produce electronic copies of or, if the requester prefers, printouts of electronic records or data from data base fields that the agency maintains using the computer programs that the agency has in its possession. An agency shall not refuse to produce such electronic records, data, or data fields on the grounds that exporting data or redaction of exempted information will require inputting range, search, filter, report parameters, or similar commands or instructions into an agency's computer system so long as such commands or instructions can be executed using existing computer programs that the agency uses in the ordinary course of business to access, support, or otherwise manage the records or data.”
Assured that the information I requested fell under the requirements of GORA, and that no specified exemption applied to my request, I submitted the request on April 16.
Under the rules of GORA, once a request is submitted, the recipient of the request has three days to respond with either provision of the requested materials, or a denial of the request.
As stated in the Act, “In any instance in which an agency is required to or has decided to withhold all or part of a requested record, the agency shall notify the requester of the specific legal authority exempting the requested record or records from disclosure by Code section, subsection, and paragraph.”
On April 21 (timing was not an issue, not counting weekend days, their response was within the required 3 days), I receive an email from Erin Wright, Associate General Counsel for the Georgia Department of Public Health denying my request for the COVID-19 testing data. As required by GORA, she included the exemptions under which they were denying my request.
“Except for the Department’s Final or Interim Reports, information and records collected as part of an outbreak investigation are confidential under O.C.G.A. § 31-5-5 and DPH Rule 511-2-1-.03,” her letter stated.
However, it is my contention that neither of those exemptions is a legitimate exemption under GORA.
The 31-5-5 section of the Georgia Code is titled “Contents of official record as evidence; classification of privileged materials.”
The text of the section contains the following subsections:
(a) Any order, rule, regulation, or any other document, record, or entry contained in the official record or minutes of the department or of any county board of health shall be admissible in evidence in any proceeding before any court or other tribunal in this state where otherwise admissible and not privileged or confidential under this Code section when certified as true and correct by and duly authorized by the director at the county level and the examiner at the state level. It shall be the duty of the director or examiner, who shall be custodian of such records, to furnish and certify copies of the record or other evidence upon payment of reasonable costs therefor. Nothing in this Code section shall be construed as applying to Code Section 12-5-175.
This subsection does not appear to apply to my request (Code Section 12-5-175 deals with drinking water regulations)
(b) The department and county boards of health are authorized by regulation to classify as confidential and privileged documents, reports and other information and data obtained by them from persons, firms, corporations, municipalities, counties, and other public authorities and political subdivisions, where such matters relate to secret processes, formulas, and methods or where such matters were obtained or furnished on a confidential basis. All matters so classified shall not be subject to public inspection or discovery and shall not be subject to production or disclosure in any court of law or elsewhere until and unless the judge of the court of competent jurisdiction, after in camera inspection, determines that the public interest requires such production and disclosure or that such production and disclosure may be necessary in the interest of justice.
Due to the unrelated subject matter of subsection (a) of this Code section, I am left to believe that this subsection, dealing with “proprietary information,” is what was being referenced by the DPH in citing this Code section as being an exemption to GORA requirements in relation to my request for testing data.
I contend, however, that the results of COVID-19 tests do not “relate to secret processes, formulas and methods” nor are test results “obtained or furnished on a confidential basis” given that I did not request personally-identifiable information, only the data fields showing the number of tests taken and the results of those tests – a contention supported by the fact that the DPH releases the very data I seek, on a statewide level.
DPH Rule 511-2-1-.03
The Department of Public Health Rules, specifically section 511-2-1-.03, state that,
(a) The following records shall be deemed confidential and shall not be subject to public inspection: all reports submitted to a county health department or to the Department pursuant to this Chapter; all information requested or collected as part of an outbreak or cluster investigation, subject to the exceptions described in subparagraph (b) of this Rule; all identifiable Georgia Discharge Data System data; and all information identified as "non-public" and received from the U. S. Food and Drug Administration.
(b) When an outbreak or cluster investigation is concluded, the Department's Final Report may be made public, provided that it contains no personally identifiable data. When an outbreak or cluster investigation is expected to last more than ninety days, the Department may prepare one or more Interim Reports. Such Interim Reports may be made public, provided that they contain no personally identifiable data.
Under this rule, my request for data is clearly subject to denial. However, It is my contention that denial under this “exemption” is invalid for two reasons
1) GORA does not provide any state official, department or agency with the power to exempt themselves from the requirements of the Act. Departmental or Agency “rules” are not identified as an exemption from GORA requirements. The only exemption that approaches this is the statement that “Records specifically required by federal statute or regulation to be kept confidential;” Georgia Department of Public Health, however, is not a Federal entity, and therefore, this exemption is not applicable, in my estimation.
2) Inconvenience is not an exemption to the requirements of GORA or the spirit of the Freedom of Information Act, which GORA was founded on. Data that is deemed by the department, official or agency to be public information and not confidential, cannot be withheld simply because they do not want to take the time to provide it. This is clearly the case in this instance, since the information I requested is already published by the GDPH on a statewide level, and the information I requested is the exact same data, restricted to the county level.
In deciding what step to take next in this effort to obtain testing data, I sent an email on April 22 to both of Stephens County’s state legislative officials, Senator John Wilkinson and Representative Chris Erwin. In that letter, I explained the situation, much as is explained above. I did not request that either official take any action regarding the matter, I only asked if they had any input, comments, or suggestions.
Within a matter of days, I received a phone call from Rep. Erwin, who spoke for an extended amount of time on the phone with me regarding the matter, and said he would look into it and speak with resources he, as a legislator, has at the Capitol.
|I have yet to receive a response from Sen. Wilkinson.
On April 28, I received an email from the Operations Manager in the Georgia Legislature’s office, saying that she had received an email from Rep. Erwin and would be forwarding the matter to an attorney in the office, and she would respond to me soon.
I spoke again with Chris, and he told me that he had forwarded the matter to that office.
After a few days, when I had not heard back from anyone, I contacted the Operations Manager to inquire about a timeline, and received a response back, on May 11, from Shawn Marie Story, the Deputy Legislative Counsel of the Georgia General Assembly. There had been some confusion, on my part or theirs, about whether I had received the information I needed from Chris.
“If you are still dissatisfied with a response or lack of response you have received from the executive branch, the Attorney General has a process in place for making complaints relating to open records laws,” Shawn stated in the email, “You may contact Jennifer Colangelo, who is the Open Government Coordinator for the Attorney General’s Office, for more information or to file a complaint,” the email continued, and gave Ms. Colangelo’s contact information.
I then, on May 12 sent Ms. Colangelo an email requesting information on the process to file an appeal, as indicated by Shawn Story.
Later the same day, I received a response from Ms. Colangelo stating: “Our office can't mediate Open Records disputes involving our clients; our conversations with them about Open Records issues are confidential and we would represent them in any litigation. However, I will pass this on to our attorneys who work with the Department of Public Health and they will take a look at your request and DPH's response. You'll hear from them or from DPH if there is any change in DPH's response to your request.”
Not content with the “IF there is any change” stipulation for a response as indicated in Jennifer’s email, I emailed her back, requesting that I be contacted within 48 hours.
“Please request that I be sent notification of either a change in the DPH response to my request, or a confirmation of continued denial of my GORA request, so that I may determine my next step in this process in a timely manner,” I stated in that letter. I feel that, considering the fact that timeliness is given weight in GORA, as evidenced by the three-day response requirement, that further communications regarding the request should also be handled expediently, as we are dealing with data that has a “shelf life” and that is of immediate public interest.
As of now, Thursday, May 14 at 11:45 a.m. - short of that 48 hour mark by 15 minutes, I have not received any response from either Ms. Colangelo or from the DPH.
According to the wording of the Georgia Open Records Act, my remaining avenue of appeal is through the State Superior Court.
“(a) The superior courts of this state shall have jurisdiction in law and in equity to entertain actions against persons or agencies having custody of records open to the public under this article to enforce compliance with the provisions of this article. Such actions may be brought by any person, firm, corporation, or other entity. In addition, the Attorney General shall have authority to bring such actions in his or her discretion as may be appropriate to enforce compliance with this article and to seek either civil or criminal penalties or both. (b) In any action brought to enforce the provisions of this chapter in which the court determines that either party acted without substantial justification either in not complying with this chapter or in instituting the litigation, the court shall, unless it finds that special circumstances exist, assess in favor of the complaining party reasonable attorney's fees and other litigation costs reasonably incurred. Whether the position of the complaining party was substantially justified shall be determined on the basis of the record as a whole which is made in the proceeding for which fees and other expenses are sought. (c) Any agency or person who provides access to information in good faith reliance on the requirements of this chapter shall not be liable in any action on account of such decision.
"Any person or entity knowingly and willfully violating the provisions of this article by failing or refusing to provide access to records not subject to exemption from this article, by knowingly and willingly failing or refusing to provide access to such records within the time limits set forth in this article, or by knowingly and willingly frustrating or attempting to frustrate the access to records by intentionally making records difficult to obtain or review shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.00 for the first violation. Alternatively, a civil penalty may be imposed by the court in any civil action OPEN RECORDS ACT 2012 -22- brought pursuant to this article against any person who negligently violates the terms of this article in an amount not to exceed $1,000.00 for the first violation. A civil penalty or criminal fine not to exceed $2,500.00 per violation may be imposed for each additional violation that the violator commits within a 12 month period from the date the first penalty or fine was imposed. It shall be a defense to any criminal action under this Code section that a person has acted in good faith in his or her actions. In addition, persons or entities that destroy records for the purpose of preventing their disclosure under this article may be subject to prosecution under Code Section 45-11-1. (b) A prosecution under this Code section may only be commenced by issuance of a citation in the same manner as an arrest warrant for a peace officer pursuant to Code Section 17-4-40; such citation shall be personally served upon the accused. The defendant shall not be arrested prior to the time of trial, except that a defendant who fails to appear for arraignment or trial may thereafter be arrested pursuant to a bench warrant and required to post a bond for his or her future appearance.
So there you have one journalists quest for what would seem to be clearly information of public interest and within the public’s right to know.
The fight continues…