This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.

On January 11, 2021, the OOR entered a Final Determination holding that a Request seeking data relating to protected COVID-19 records that had previously been made public by the Pennsylvania Department of Health (“DOH”) is not protected by the Disease Prevention and Control Law of 1955 (“DPCL”) and must be produced under the DPCL. Schorr v. Pennsylvania Dep’t of Health, OOR Dkt. No. AP 2020-1837 (Jan. 11, 2021). (The Final Determination is dated January 11, 2020, but the facts stated therein and the date on which the Determination was actually issued by OOR indicate that this date is a typographical error by the OOR.)

This determination is important because it attempts to enunciate a role for Act 77 with regard to requests for COVID-19 information from DOH.

Background and Facts:

On August 6, 2020, Requester Justin Schorr submitted a Request to the DOH for the following information “in its most complete form from March 2020 to present.” Listed below are the portions of this Request that were not subsequently withdrawn by the Requester:

1. Granular (day by day or, where available, hour by hour) counts of the following:

a. Total Covid-19 patients hospitalized (Statewide and, MOST IMPORTANTLY COUNTY BY COUNTY)
b. Total ventilators in use (COUNTY BY COUNTY, DAY BY DAY)
* * * *
d. The percentage of hospital patients who are transfers from LTCF [Long Term Care Facilities].

2. Clarification with regard to the following:

a. Provide a listing of all facilities which are included in the LTCF data
presented on the DOH website
b. Provide an explanation of the manner in which the excel files also
provided on that same webpage are related to the chart which is displayed.

* * * *
On September 14, 2020, after a thirty-day extension, DOH granted the portions of the Request that sought information publicly available on the DOH’s public website, and denied the rest of the Request based upon several exemptions in RTKL Section 708, and the DPCL. The Requester appealed this decision on September 15, 2020.

On appeal, the Requester argued that he merely sought aggregations of data DOH had already made public, so the DPCL could not apply. The Requester also argued that the data released by DOH did not accord with the numbers reported on DOH’s website, so all responsive records cannot have been made available. DOH took the position that the format in which it chose to make certain records public was part of its decision to release data under the DPCL, and that “the data used in the chart on the Department’s website for reporting facility cases and the data disclosed on their Open Data platform have different sources, and therefore are not identical.” Slip op. at 3.

OOR decided this appeal on the written submissions alone, as permitted under RTKL Section 1102.

Analysis and Holding:

OOR found that information published on the Open Data website responded to Item 1(a) and part of 1(b), and found that the appeal was moot as to that information.

Because Item 2(b) only seeks ” ‘an explanation’ of a disparity that the Requester perceives between data posted by the Department” and not a record, OOR held that Item 2(b) was not a proper RTKL request. OOR also held that information on the Open Data platform concerning COVID-19 counts and ventilator usage statistics since June 2020 was responsive to Items 1(a) and 1(b), mooting those portions of the request. But OOR drew interesting distinctions with regard to Items 1(d), 2(a). and 1(b).

The information in Items 1(d) and 2(a) has not been publicly released by DOH. Item 1(d) has not been made public in any format. With regard to Item 2(a), DOH’s Open Data website contains a listing of all LTCF with COVID-19 infections, but it does not list facilities associated with its online table, which draws from different sources and is thus a separate record for RTKL purposes.

OOR interpreted Item 2(a) as “the list of facilities from the Department’s dashboard,” not the list of facilities from the the DOH’s official dataset, which had been released on the Open Data platform. Because dataset information was not used by DOH or any Commonwealth agency for “any rules, policies or actions” or as part of a “quantitative or predictive model”, it was not covered by Act 77 and thus is still protected by DPCL. However, Item 1(d), which requests “the percentage of hospital patients who are transfers from an LTCF” daily between March 2020 and August 2020, is being used by DOH for purposes “of policies intended to address the COVID-19 pandemic emergency,” and thus was required to be produced under Act 77 and RTKL.

OOR drew a different distinction with regard to the portion of Item 1(b) requesting ventilator statistics between March 2020 and June 2020. Some of the information in Item 1(b) had been produced through day-to-day publication on the DOH’s website, though that information is not currently available, at least not in the form the Requester seeks.

RTKL Section 705 specifically states that an agency is not required to create a record that does not currently exist or format an existing record in a manner that the agency does not currently use. However, OOR found that providing information that exists in an agency database, such as the Open Data information, does not constitute creation of a record, so its production is not precluded from production by RTKL Section 705. Slip op. at 13 (citing and quoting Commonwealth v. Cole, 52 A.3d 541, 549 (Pa. Commw 2012). Because DOH’s evidence did not show any other reason why it could not provide that information, the ventilator statistics requested by Item 1(b) were ordered to be produced.

Bottom Line:

Although OOR typically does not treat information in and of itself as a “record” that must be produced, OOR explicitly recognized in Schorr that Act 77 classifies “data used by a Commonwealth agency for any rules, policies or actions taking by the Commonwealth agency in relation to a disaster declaration” as a public record producible under RTKL, independently of the record or records from which that data was derived.

It behooves anyone seeking information about the sources of the Commonwealth’s COVID-19 policies to frame RTKL requests about those policies with that distinction in mind.