This synopsis was prepared by Pennsylvania attorney Catherine Olanich Raymond.
In a Final Determination entered on June 24, 2021, the OOR found that the Pennsylvania Department of Health (“DOH”) did not successfully prove that “records related to the investigation and tracking of personal protective equipment (“PPE”)” are confidential and protected from disclosure under the Disease Prevention and Control Law (“DPCL”). Todd Shepherd and Broad + Liberty v. Pennsylvania Department of Health, Dkt. No. AP 2021-0863 (June 24, 2021). The Request was accordingly granted in part and dismissed as moot in part.
Background and Facts: On March 19, 2021, Todd Shepherd and Broad + Liberty (collectively “Requester”) filed a Request with DOH seeking a copy of “any and all documents that record and/or track the identification, and/or the acquisition, and/or the purchase, and/or the distribution of … PPE by the … Department … for those documents created, received, and/or edited between the dates of March 1, 2020 to March 15, 2021….” Slip op. at 2. The Request specifically states that PPE includes gloves, masks, hand sanitizer, face shields and medical gowns used to prevent the spread of COVID-19. DOH obtained a 30-day extension of time in which to respond, and on April 26, 2021 denied the Request on the grounds that the responsive records are confidential under the DPCL. DOH also argued that the records are protected under RTKL Section 708 because they relate to a noncriminal investigation and contain personal health and identification information, slip op. at 2, and also because their disclosure would threaten personal security and public safety, id.
On April 28, 2021, the Requester appealed to the OOR. On May 28, 2021, DOH submitted a position statement, repeating its arguments that the records requested are confidential under the DPCL and that their disclosure would threaten public safety. The statement was supported with affidavits from Dr. Sharon Watkins, State Epidemiologist and DOH’s Director of the Bureau of Epidemiology, and from Andrew Pickett, Director of DOH’s Bureau of Emergency Preparedness and Response. DOH also provided records responsive to the part of the Request seeking information about the acquisition and purchase of PPE. The Requester provided no additional evidence on appeal.
Analysis and Holding: OOR’s analysis began with the principle that a record in the possession of a Commonwealth agency such as DOH is presumed to be public, and disclosable upon a RTKL request, unless exempted by a provision of RTKL or other law, or protected by a privilege, judicial order or decree. RTKL Section 708 places the burden of proving an exemption upon the agency.
After holding that the appeal was moot as to the records of the acquisition and purchase of PPE, OOR explained why the remainder of the requested records are protected from disclosure. The DPCL protects records of reports of disease. DOH argued that it also protects “records maintained as a result of any action taken in consequence of reports of diseases pursuant to the DPCL,” slip op. at 5 (emphasis in original). While OOR agreed that was true, it found that the Request in issue was not seeking records of action taken in consequence of reports of diseases.
“Rather, the Request is seeking records ‘that record and/or track the identification, … and/or the distribution of … PPE.’ It is certainly not disputed that COVID-19 is a reportable disease under the DPCL. However, the Department is attempting to correlate anything related to the COVID-19 pandemic, including the identification and distribution of PPE, to the confidentiality provisions of the DPCL, no matter how attenuated the link may be.” Slip op. at 7-8.
OOR concluded that DOH’s affidavits did not contain any specific statements or information that demonstrated that DPCL protected records of the identification and/or distribution of PPE.
Finally, OOR concluded that DOH’s affidavits also fail to show a threat to public safety from disclosure of the requested information. Though DOH provided evidence that a few thefts of PPE had occurred, it did not provide sufficient evidence to show that disclosure of documents “that record and/or track the identification … and/or the distribution of … PPE between the dates of March 1, 2020 to March 15, 2021” would be reasonably likely to threaten DOH’s response to the COVID-19 pandemic. Slip op. at 11. Accordingly, it ordered disclosure of those responsive records that had not yet been produced.
Bottom Line: Shepherd shows the importance of reading potentially applicable statutes as written when crafting a RTKL request. The DPCL protects reports of disease, not reports of all things that may be useful in controlling the spread of disease, such as the PPE referenced in the Request, and thus did not protect the records in question from disclosure.