Transparency Amid the Coronavirus Emergency
The public need for reliable, complete, and actionable information is at its most urgent amid a public health emergency.
As Gov. Steve Sisolak told Nevadans in his April 8 COVID-19 Situation Report: “You deserve transparency and the truth.” Governor Sisolak also recognized the hard work trusted media outlets are doing to provide the public with information. Indeed, the greatest risks to public health arise when rumors and misinformation fill the gaps left by an absence of information. Nevadans need more transparency, not less, when access to accurate and complete information can mean the difference between life and death.
The Nevada Open Government Coalition urges government officials and agencies statewide to bolster public trust through transparency. Our communities deserve access to information they need to protect themselves and their loved ones. The NOGC was one of over 140 organizations to sign on to a recent statement from the National Freedom of Information Coalition, which said, in part: “We encourage the custodians of information at all levels of government to take this opportunity to leverage technology to make governance more inclusive and more credible, not to suspend compliance with core accountability imperatives in the name of expediency.”
Government workers and local journalists responding to this evolving emergency are facing many of the same tremendous challenges. They have been moved out of their offices and are attending to family health, safety and education needs while working from home. Budget cuts and layoffs are looming. In addition to uncertainty, though, these trying times offer government and local media an opportunity to recommit to their shared responsibilities ensuring public trust and safety.
While these times have demanded flexibility and sacrifice, Nevada’s Public Records Act NRS 239.001 et seq., has not been suspended or amended, and the civic and legal obligation to government transparency it enshrines, “to foster democratic principles by providing members of the public with prompt access” to information may have never been more important.
Many state and local officials and agencies are rising to this challenge like never before. Unfortunately, others have withheld crucial information that could provide the public with reliable and actionable information amid the crisis. For example:
Officials in Clark and Washoe counties have refused to release the names of people who have died from COVID-19. This runs against a common practice of coroners and medical examiners of identifying decedents, and relies on a mischaracterization of the Nevada Public Records Act. Releasing this information is necessary to increase public trust in the statistics about deaths that the government releases. When information like this is kept secret, for example, people do not know if they may be carriers of the virus through contact with a decedent and are left to piece together a picture from scattered reports and rumors.
When officials with the Nevada Department of Corrections announced an employee at the High Desert State Prison had tested positive for COVID-19, the agency was asked to clarify whether the employee worked closely with inmates at the prison, who might thereby be at risk for contraction. It took NDOC more than a week to respond to the question, and they declined to answer it, leaving the public--and families--to wonder whether inmates and NDOC employees were at risk.
Amid early reports of infections impacting schools, officials restricted information that would have helped parents assess the risk to their children. For example, the Southern Nevada Health District disclosed that Las Vegas Valley's first presumptive positive COVID-19 patient had a child in school, but refused to disclose the school the child attended. Similarly, when the Clark County School District reported its first case of COVID-19 last month, CCSD said the patient was a member of the Heard Elementary "school family" and declined to clarify when the person tested positive, whether it was a student or staff member, or what grade might have been exposed. These refusals to provide information left employees, students, and parents without information they needed to keep themselves safe.
Other agencies’ responses to requests for information under the public records law--which requires a response, if not the release of records, within 5 business days--have significantly slowed or become restricted at this critical time.
The Nevada Department of Corrections has taken more than two weeks to even acknowledge the existence of a request for data on the number of tests administered to staff and inmates and the results of those tests.
The Nevada Department of Health and Human Services and Nevada Health Response, the latter of which was created by the state to disseminate information related to the coronavirus outbreak, took 10 days to acknowledge the existence of a request for records and information about the state's stockpile of personal protective equipment. On April 14, the Governor’s Office estimated a wait of eight to ten weeks simply to establish a timeline for providing the records.
The Governor’s office acknowledged an April 6 request for copies of the Nevada Hospital Association's daily capacity reports provided to state officials, but claimed it will take them eight to ten weeks simply to determine how much longer after that it will take to provide the records.
The Las Vegas Police Department is not allowing anyone from outside the organization into department buildings during the coronavirus pandemic. As a result, no one from the public is allowed to review officers' body-worn camera footage until "after this pandemic is over," according to an email from the department's Body Worn Camera Public Records Unit. As an alternative, Las Vegas police will provide body-worn camera footage if a redaction fee is paid in advance. These practices violate the Nevada Public Records Act.
Despite the unique challenges at hand, there are ways to resolve these problems. Thankfully, organizations like the Brechner Center for Freedom of Information, Reporters Committee for Freedom of the Press, and National Freedom of Information Coalition have compiled a range of solutions to help government officials and agencies address the challenges they face in providing prompt access to reliable information amid this crisis. Some of their best ideas are ones that Nevada officials could implement right away:
Proactively publish data and information that is frequently requested, rather than waiting for requests to come in. The same goes for information that officials expect to be requested. Why wait? Conserve the time and resources spent on retrieval by proactive disclosure.
Consider expedited processing for coronavirus-related information requests. One way to do this is to relax optional burdensome review processes to identify information that may--but not must--be withheld or redacted. As one expert put it, such optional withholding “is a textbook ‘non-essential’ government function.”
Clarify--for the public and for government workers and officials--when HIPAA applies. This federal law, which requires healthcare providers or insurers to keep patients’ identifiable medical records confidential, is commonly misunderstood as applying outside those narrow parameters, to data and statistics that should be made public. In this crisis lies the opportunity to better understand how this health information privacy law actually works.
The NOGC supports access to information because it is one of our best defenses in a dire emergency. At a time when infection feels rampant, Justice Louis Brandeis’ words, that “sunlight is said to be the best of disinfectants” takes on new meaning as a call for all of us, particularly those leading local government responses, to help in the defense against an epidemic of rumors and misinformation.
The Nevada Open Government Coalition is a nonprofit, nonpartisan organization supporting democratic government accountability through transparency. The diverse coalition educates, advocates, and empowers civic engagement in Nevada through increased access to government information processes, and public understanding of public records laws, open meetings laws, and other issues related to open government.