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MAY 2020

Fired for complaining to the news media? A reminder from the NLRB: Workplace gag rules are illegal

You can make hospital workers cover their mouths  -- but not shut them. 
That's the takeaway from a new federal ruling, reinforcing decades of precedent that gives private-sector employees the legally protected right to speak out about workplace safety concerns.
In a unanimous opinion, the National Labor Relations Board reaffirmed that it's an unfair labor practice to gag employees from sharing work-related information with the press and public. It's an especially timely ruling because of widespread reports that employees of hospitals and nursing homes are being told not to answer questions from journalists about the COVID-19 pandemic.


Secret stats: How "medical privacy" is being weaponized to deny the public accurate counts of coronavirus cases

COVID-19 has made its impact felt on news-gathering. Accurate reporting and information are more vital than ever, yet journalists are faced with mounting challenges: Remote interviewing, makeshift home newsrooms, and difficulty prying loose data about coronavirus developments from secretive agencies.
State and county authorities have struggled to find the balance between protecting confidential health information and releasing information necessary for public safety. Often, journalists' queries are met with "the HIPAA answer," whether applicable or not.
The Health Insurance Portability and Accountability Act (“HIPAA”) is a federal statute governing when patients' "protected health information" may and may not be shared. "Protected health information" refers to information that relates to an individual’s physical or mental health, course of treatment, or payment arrangements. Typically, information covered by HIPAA is shared only within a hospital, nursing home or doctor's office for purposes of treatment or billing. However, the law also allows for disclosure when necessary for public health and safety -- which can present tricky judgment calls. Importantly, HIPAA does not preclude the use or disclosure of “de-identified health information” – information that neither identifies nor provides a reasonable basis to identify an individual patient.
In a thoughtful piece for Law360, media lawyer Al-Amyn Sumar discusses what HIPAA does and does not cover, along with an analysis of access barriers during the siege of COVID-19. Read the helpful piece here.

Secrecy surrounding COVID-19 data continues making headlines across the county, as agencies take wildly differing interpretations of what is and is not releasable:
  • In Texas, angry families and consumer advocates are demanding greater transparency as the politically powerful nursing-home industry resists disclosure of which homes have outbreaks of COVID-19 and how many cases they are dealing with. Although the industry is claiming that medical privacy forbids disclosure, the same data is harmlessly being released in most other states.
  • A Nevada association representing nonprofit hospitals threatened to stop providing the state with daily updates on COVID-19 cases and preparedness, for fear that the state would honor public-records requests to disclose what the hospitals consider "proprietary" information to the news media.
  • "Medical privacy" is also being cited in Maine as the rationale for refusing to tell police agencies and firefighters if the home they are about to enter has a COVID-19 patient. Public-safety agencies say they need the information to decide whether police or firefighters need to wear personal protective equipment when responding to a call, but the information -- which is being made available in neighboring Massachusetts and New Hampshire -- is still being withheld.

The COVID-19 secrecy epidemic infects Tallahassee: How news organizations are leading the charge for greater transparency

Often recognized as a leader in government transparency, Florida has been lagging in producing timely information about the extent and location of coronavirus cases -- and at times affirmatively thwarting journalists' attempts to get the most accurate counts. The Tampa Bay Times reports that the state medical-examiners' agency suddenly stopped giving out data about deaths attributed to COVID-19 after Florida's Department of Health interceded and insisted on having a chance to review the records first. (Figures from the DHS, the Times reported, have been consistently lower than those reported by coroners' offices.) Meanwhile, facing an open-records lawsuit from the Miami Herald, the state relented on its refusal to release the list of nursing homes with COVID-19 cases, which other states had been voluntarily disclosing for weeks. The initial list showed that 303 facilities in 45 of Florida's 67 counties had residents diagnosed with COVID-19, which has been especially deadly for elderly people in group living facilities.
You can't paywall the law, the U.S. Supreme Court told the state of Georgia in a widely watched case that examined whether states can claim copyright protection for the contents of state statute books (in a word, no). Georgia argued that state employees added creative value to the wording of (non-copyrightable) statutes enacted by the legislature by appending some interpretive notes (or "annotations"). But the justices, in a 5-4 decision, decided those annotations weren't enough to make the state codebooks protectable by copyright, meaning the state can no longer exclusively license distribution rights only to paid subscription services. Read the full opinion here.

If you're going to string out a public-records requester with phony cost estimates while you're lobbying the legislature to create a retroactive loophole that excuses you from producing the records, it's probably a bad idea to put that in writing. That was one takeaway from a Missouri judge's smackdown of the state Department of Health and Social Services, which tried to get rid of a nonprofit genealogical research group requesting access to birth and death records by quoting a gold-plated, diamond-encrusted estimate for search-and-retrieval costs: $1.49 million. The genuine cost was just a smidge less: $15,000. But under the judge's order, the state will have to provide the data for $2,500 and pay a $12,000 bad-faith penalty.

Colorado officials are vowing to fight a state court's order directing them to turn over the names of the six final-round candidates for the University of Colorado presidency. Mark Kennedy, a former Republican congressman, was hired in a divisively partisan selection process that took place entirely behind closed doors, provoking campus outcry. CU regents claim they complied with state law by identifying "the" finalist: Kennedy. But a district judge was unamused by the wordplay and ordered disclosure of all candidates who made it to the final round of interviews (what most people call "finalists").

Share research, win money

The National Freedom of Information Coalition is offering cash prizes for the best articles of "practical scholarship" addressing issues of accessibility of government documents and data. Winners will present at the (live, or virtual) fall NFOIC national summit, and be offered publication in The Journal of Civic Information, a peer-reviewed quarterly online journal published by the Brechner Center. The competition is open to researchers, practitioners, law and graduate students, and anyone working in or studying matters of government transparency.
Pitches are due May 15 and final papers are due Aug. 1. 
Here's where and how to submit a proposal to qualify for the competition...

Guide to the galaxy: Ambitious report maps the universe of "civic data" organizations -- and identifies the black holes

More nonprofit organizations and philanthropic donors are focusing on promoting access to civically essential data. But their focus remains squarely inside the beltway, leaving gaps at the state and local levels at a time when news organizations serving those markets are most depleted. 
Those are key takeaways from a recent Knight Foundation report, "Mapping the Civic Data Universe," authored by University of Arizona journalism professor David Cuillier, president of the National Freedom of Information Coalition. The report points the way to opportunities to broaden and strengthen the open-government advocacy community, including seeking investments from private industry that benefits from accessible government data but doesn't always pay the civic freight to liberate that data.
The report's moonshot idea: Identify $2 billion to permanently endow the advocacy work of the open-data community. That investment would help strengthen public engagement efforts to involve more constituencies in taking ownership of freedom-of-information advocacy.

Read the report here...

Bad Education, great journalism

The new HBO based-on-a-true-story account of corruption in a Long Island school district, "Bad Education," is a love letter to student journalism. Hugh Jackman and Allison Janney star as high-achieving but morally compromised school administrators. But the one admirable character is portrayed by Geraldine Viswanathan, a 24-year-old Australian actress playing a teen reporter for the school's Hilltop Beacon newspaper, which in real life was the first to report on the embezzlement probe that toppled Superintendent Frank Tassone (Jackman) and his deputy, Pamela Gluckin (Janney). Real-life student editor Rebekah Rombom (on whom the Viswanathan character is loosely based) describes how she followed the money trail in this first-person account -- but even though the film takes a few creative liberties, see it.

Fellowship offers grants to downsized journalists for pursuing open-government stories

Lost advertising due to the coronavirus pandemic accelerated the hemmhoraging at news organizations throughout the country. The dwindling ranks of reporters and editors who have jobs at all are absorbing furloughs and pay cuts, with no relief in sight. To offer a modest lifeline to some of the afflicted, the Brechner Center is offering $2,500 grants to writers to pursue projects (from the Center's priority list, or pitches of their own) that shed light on the human toll of government secrecy. The first class of 10 fellows will be announced June 1, and sponsors are being sought in hopes of expanding the program.

Apply here by May 15...
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