Health agency stalling on requests for COVID-19 emails, critics say

In early March, after Georgia’s first confirmed COVID-19 case, journalists submitted Open Records requests seeking emails sent by Dr. Kathleen Toomey, commissioner of the Georgia Department of Public Health. The department still has yet to produce copies of emails requested months ago. John McCosh/Georgia Recorder

On March 3, the day after Georgia’s first confirmed COVID-19 case, an 11Alive reporter submitted an Open Records request seeking emails sent by Dr. Kathleen Toomey, commissioner of the Georgia Department of Public Health.

The following day, a CNN reporter filed a similar request for emails. The following week, the Washington Post asked for even more internal emails from the state’s public health agency.

In the first four months of COVID-19 when Georgia saw more than 84,000 confirmed cases and nearly 3,000 deaths, journalists, advocates and lawyers submitted more than 40 records requests for emails about the Department of Public Health’s response to the pandemic. The requesters sought emails regarding the state’s allocation of resources, Gov. Brian Kemp’s April remarks about asymptomatic transmission of COVID-19, correspondence with corporate leaders and information that guided the state’s reopening.

But the department, tasked as the lead state agency managing the crisis, did not complete a single request for emails during that period.

Open Records logs obtained by Georgia Health News show that the department had failed to produce emails in response to nearly four dozen requests submitted between March 1 and July 1. The Washington Post, The Atlanta Journal-Constitution and other Atlanta news organizations were among the requesters.

Open government advocates accuse the health department of violating a state law requiring the agency to complete these requests in a timely fashion.

Public health experts say withholding those records has damaged trust in government during a moment of crisis and prevented Georgians from fully understanding the decisions made within the Kemp administration, which has at times presented what critics call conflicting or misleading information about COVID-19.

“Transparency is not the Kemp administration’s forte, and unfortunately [DPH] is no different,” Dr. Melanie Thompson, an Atlanta physician who is an HIV expert, wrote in an email to Georgia Health News. “Trust in public health is essential to implement successful policies, including testing, contact tracing, isolation, and mask wearing in the context of COVID-19.”

A spokeswoman for Gov. Kemp declined to answer questions. In a statement responding to GHN’s questions, health department spokeswoman Nancy Nydam acknowledged that the agency has had “tremendous difficulty in managing its Open Records requests.” She said that a sharp increase in requests had overloaded employees directly responding to the pandemic.

“Many of these requests require search and retrieval of voluminous records kept by the same DPH employees who are already overloaded with duties directly related to the COVID-19 emergency response,” she said.

But the agency, she said, is now taking steps to fill vacant positions in its legal department, and has hired a third-party technology vendor to process email requests.

“The Georgia Department of Public Health has a history of working with journalists and all requesters to provide transparent information in a timely manner,” Nydam said in a statement. “The Department will continue to do so as it is able, keeping the health and safety of all Georgians at the forefront of its responsibilities.”

Clear violation, expert says

Georgia’s Open Records Act requires government agencies to respond within three days of a request. If the records cannot be produced in that time, the agency must give an estimate of when the materials will be available.

The state health department has fulfilled a variety of information requests about the pandemic, including data on COVID-19 infections, hospitalizations and deaths. But in response to multiple outlets’ media requests for internal emails, its staff has told reporters it would not retrieve any of those records until after the emergency order was lifted.

Erin Wright, associate general counsel for the department, initially cited the governor’s public health emergency order as justification for delaying the records requests when GHN asked for agency emails with employees of a long-term care facility operator.

“The Georgia Department of Public Health is heavily involved in the state’s response to this novel disease and is currently devoting the majority of its time and resources to the COVID-19 response to ensure the health and safety of Georgia citizens,” Wright wrote in an email to GHN on April 17. Other news organizations, including the AJC, received similar denials.

While some officials in other states have exempted government employees from fulfilling public records requests until emergency orders are lifted, Kemp’s order did not exempt state agencies from producing requested emails.

Other state agencies, including the Department of Community Health, have complied with open records law related to emails about COVID-19.

The health department’s response to records requests is a clear violation of the law, said William Perry, executive director of Georgia Watchdogs, a nonpartisan organization that advocates for government transparency. “I’m not aware of any exceptions for an emergency in the Georgia Open Records Act. It’s a time like this, when the public has a fear, that our government should be open and honest with us.”

The agency’s records logs also state that it had “no resources to devote to a cost estimate or pulling records” for dozens of requests about emails from outlets such as the Atlanta Journal-Constitution, GHN, Reuters, the Washington Post, and WSB-TV.

Nydam said her department hired Unisys, a Pennsylvania-based IT company, in May to run search queries for employee emails requested by journalists. The agency is also seeking to fill four vacancies in its eight-member legal department.

Since GHN made a request for the agency’s open records logs, the department posted the document on its website in an “act of transparency,” Nydam said. Cost estimates are now being sent out related to those requests, Nydam said. GHN received a cost estimate from the agency last week, more than two months after the request was submitted.

“Estimates for retrieval, review and redaction are currently being provided to requesters,” Nydam said.

 The agency has not given a timetable for actually producing the requested documents.

A promise to do better

In early June, the nonprofit Georgia First Amendment Foundation met with staff from the health department and the state attorney general’s office to urge the agency to comply with Georgia’s Open Records law.

Richard Griffiths, president emeritus and board member of the foundation, said there’s been some slight movement on records retrieval since then. “But emails seem to be a sticking point,’’ he noted.

“They promised to try and do better,” Griffiths said. “The DPH needs to be responding in a way that meets the needs of the public.”

As of last Thursday, only one requester, independent journalist Alex Ruppenthal, had received a single email record, according to DPH’s open records log. Six additional requests were being actively retrieved and reviewed by DPH attorneys.

As Georgia’s COVID-19 cases spike, Dr. Harry J. Heiman, clinical associate professor of health policy and behavior sciences at Georgia State University, said  having internal health department records could help Georgians further understand the gravity of the virus’s resurgence and the necessity of public health interventions needed to tame the pandemic.

“There’s been a black curtain between what’s going on inside DPH and what we’re seeing in communication with the public,” Heiman said. “Our inability to get records perpetuates the current level of confusion. They need to think about proactively and regularly communicating with the public about what’s happening moving forward.”

This story appears in the Georgia Recorder through a partnership with Georgia Health News.