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In recent days, we’ve filed four Public Records Act lawsuits against public entities that continue to withhold records related to their handling of the coronavirus. One city has acknowledged it deleted records after we requested them. A public university, meanwhile, contends that email privacy trumps the public interest.
The novel coronavirus has upended life in the San Diego region for five solid months. And it shows no signs of abating.
Essential workers are at constant risk of getting sick. Many businesses are still closed or threatening to go under. In-person education has been canceled, forcing parents to convert their homes into classrooms or pioneer a new system of private learning.
So how we got here and how our leaders responded when they didn’t necessarily think anyone was looking are important questions.
In late March, shortly after the state issued a shelter-in-place order, VOSD reporter Ashly McGlone filed a request under the California Public Records Act for the first 100 mentions of certain COVID-related terms. Within weeks, she and other members of our team were reading through emails.
Other reporters have asked in recent months for copies of specific types of documents connected to COVID-related deaths and investigations — data that could help the public evaluate the performance of elected leaders and adapt to this new reality.
Some public institutions, like the North County Transit District, had a good sense that a disaster was coming and tried to sound an early alarm.
Unfortunately, we still don’t know how others reacted because they’ve resisted transparency in the name of an ongoing emergency or shown hostility to outside examination. One city has acknowledged that it deleted its earliest communications about the virus — even after we’d requested them.
That’s why we’re suing.
In recent days, Felix Tinkov, a public records attorney, has filed four COVID-related petitions on our behalf. Some of the lawsuits have multiple goals: force agencies to give us the documents the public is entitled to while also dismantling record-keeping policies that are at odds with state law or counter to the principle of good government.
Public health professionals have been overseeing the region’s pandemic response and are no closer to assuring us it’s OK to open up than they were in May. In large part, that’s because of the virus spreading over this disastrous summer, when they agreed to loosen restrictions.
Even though these outbreaks have crippled lives and the economy, the public knows almost nothing about them. County officials hold a regular press conferences but have shared remarkably little about the sources of transmission and what they know.
And they know a lot. As of Aug. 6, the county claimed to have performed 35,877 investigations related to these cases. That is more than the total number of confirmed COVID-19 cases in the region.
Every day, they update us on outbreaks with sentences like “Six new outbreaks were identified on Aug. 5: one in a preschool, two in business settings, two in health care settings and one in a restaurant.”
There’s nothing about where those outbreaks occurred. Often the county will say “restaurant/bar,” and it took reporters weeks to decipher what that language actually meant. Officials offer no information on how the “business settings” were arranged. Were they indoors or outdoors? How many people got the virus in each of these outbreaks? Was the place operating legally?
This makes it impossible for the public to hold county public health officials accountable for how they’re managing the pandemic. And it amounts to a giant “trust us.”
For months, county officials have said they’re overwhelmed by the number of requests for information and working as quickly as they can under the circumstances. But their reluctance to release any specifics about where outbreaks are occurring and why is particularly problematic because that information is vital to maintaining confidence and could impact public decision-making.
Confidence is needed if people are going to cooperate with county contact tracers — the people who help track the spread of the virus by interviewing the sick and figuring out where they’ve gone.
What we want: In April, VOSD associate editor Jesse Marx requested copies of all epidemiological reports, and the county responded that it would only comply after the emergency order had been lifted. The rationale: “the public interest in receiving records at this time is outweighed by public interest in having County personnel free to handle this ongoing emergency.”
The following month, Mike Workman, director of the county communications office, confirmed that they were still responding to public records requests but said the process was taking considerably longer than normal because staff might not have immediate access to the documents and the documents may contain confidential medical information, which needed to undergo review.
“We’re trying to get those done,” he said.
Also in April, Jared Whitlock, a freelance journalist who contributes to VOSD, requested copies of county death certificates. Workman and other officials told him he needed to provide the name of the decedent and the date of death — something he wouldn’t necessarily know until he’d seen the documents first.
After Whitlock asked for an index of the death certificates in possession of the medical examiner, Sarah Sweeney, a county communications officer, said he’d need to provide “at least the first two letters of the last name to search and the date of death… ”
The failure to comply with both requests after roughly four months caused us to file two separate lawsuits. In both cases, we hope, the records will show on a granular level where the virus has caused harm.
But more importantly, the county’s foot-dragging in the one case runs counter to a basic tenet of the California Public Records Act: Public records must be disclosed unless the government can offer a reason considered legitimate by the Legislature.
And the county’s excuse in the other case — that a reporter must already know the information contained in the document he’s requesting — turns state law on its head. It requires the public to know what records its government has before being able to access them.
This small coastal town has one of the shortest records-retention policies around. In the name of keeping server costs low, it destroys emails it doesn’t think are important after 100 days.
State law requires local agencies to hang onto public records for at least two years, but many have argued that emails should be exempt.
McGlone filed her original request for COVID-related communications on March 20, and 10 days later got a legally required acknowledgment from City Clerk Angela Ivey. Ivey, however, like the county, cited the emergency as the reason for not immediately providing records.
By May, we were beginning to worry that Solana Beach would destroy the records we sought. And it turns out our concerns were reasonable.
After we filed suit, an attorney for the city confirmed to Tinkov late last month that because the city hadn’t begun pulling records for us until two months later, it had already deleted some of what we were entitled to and those records were likely unrecoverable.
In response, the city attorneys have agreed to halt the email deletion system and discuss the 100-day email deletion policy in closed session with the City Council later this month. They’ve also promised to begin producing records as soon as this week.
In exchange, Tinkov would begin negotiations with the city attorney to end the litigation. Otherwise, the case proceeds.
It’s worth noting: Some other local agencies, including the county and Escondido, also have short records retention windows, but they’ve chosen to suspend their normal deletion policy.
“I’m just gonna retain those emails permanently because it’s related to COVID-19 and we’re in a state of emergency right now,” Escondido City Clerk Zachary Beck told us in May.
In other words, he sees it as a duty and welcomes outside scrutiny for what it might teach all of us long term.
“We want to see what has transpired and that way the public can have confidence their elected leaders and civil servants have conducted business with the highest level of integrity,” he said.
The University of California, San Diego, is a major employer in the region with thousands of administrative staff.
Since McGlone filed her request, the university has offered a couple excuses: Officials don’t have the technological ability to search for keywords in emails and the search wouldn’t even be possible without the consent of every individual employee upfront because the UC system statewide has a policy against it.
In other words, the university argued that its own definition of privacy overrides the public’s right to know. But that’s simply not how the California Public Records Act works. Again, agencies need to cite one of the possible exemptions carved out by lawmakers.
Months later, without asking McGlone, the university then narrowed the request to just three email accounts belonging to the chancellor, environmental health and safety director and the campus emergency manager.
In the lawsuit, we’ve asked the court to compel the governing body of UC to abide by the original scope of our request and “to declare that the [university’s] policy directing it not search employee emails due to privacy interests runs contrary to the law.”
If successful in court, our lawsuit would undo a policy that extends not just to UCSD but all the other schools in the University of California system.