Documents that could show how Georgia has managed key aspects of the coronavirus pandemic are being withheld from the public, in what open government advocates say are possible violations of public records laws.
Some of the withheld documents are charts showing how much protective equipment was shipped to locations across Georgia. Others show how Georgia compares with other states in areas such as ventilator usage, infection rates and fatalities.
The Georgia Emergency Management and Homeland Security Agency, designated by Gov. Brian Kemp to lead the state’s response to the pandemic, redacted the information after The Atlanta Journal-Constitution filed a series of open records requests for emails and other documents related to the agency’s preparations for and response to the pandemic.
GEMA and the state attorney general’s office — which reviewed and processed many of the requests — say they lack the authority to disclose many of the documents, which originated with other agencies and are marked “for official use only” (You can read the agency’s full response, issued after this article was posted online, here). Open records advocates dispute that contention.
In other cases, documents that the agencies initially redacted — including a GEMA agreement with a Georgia hospital — were provided only after the AJC said it was preparing an article about their being withheld from the public.
Some of the redactions appear to be legitimate. For example, the Georgia Open Records Act allows governments to withhold the personal email addresses and cellphone numbers of public employees.
However, in most cases, the reasons why the information was withheld is not self-explanatory. The Georgia Open Records Act requires agencies to cite the specific legal authority exempting requested records from disclosure, but when the AJC asked the agencies to cite the legal basis for each redaction, the attorney general’s office instead provided only a list of exemptions allowed under the law. That makes it difficult to assess whether the redactions for specific documents are legitimate.
“There’s no question they’re not being transparent here,” said Cynthia Counts, an attorney and a member of the board of the Georgia First Amendment Foundation. “Without knowing why it was redacted, you can’t do your job of monitoring the government.”
The Georgia Open Records Act requires most government documents to be made available to the public — not just to the news media. The AJC requested GEMA documents on behalf of the public to assess the state’s pandemic response.
A lack of transparency during the pandemic has been a problem at other Georgia agencies and across the country — and it couldn’t come at a more critical time. COVID-19 already has claimed the lives of more than 4,500 Georgians and 166,000 people nationwide.
“This is such a monumental moment in American history, not only because of the virus itself, but because of the need to understand what local, state and federal agencies are doing in response to the virus,” said Adam Marshall, a staff attorney with the Reporters Committee for Freedom of the Press. “These records may hold the key to helping the public understand what’s going on.”
Documents shed light
Since March, the AJC has requested and reviewed tens of thousands of pages of GEMA correspondence and other documents related to the pandemic. Among other things, the AJC wanted to see whether those who most needed the state’s help were the ones getting it, and whether the state was acting in the public’s best interests.
The documents have shed light on Kemp’s decision to shut down Georgia’s economy in April, and they have allowed the AJC to report on key developments such as the establishment of an emergency hospital at the Georgia World Congress Center. They also have allowed the newspaper to monitor tens of millions of dollars in government contracts doled out during the pandemic.
But thousands of pages of documents have been withheld. Among them were charts showing the cumulative volume of personal protective equipment shipped to Georgia by the federal government and private companies over many weeks. Also withheld were documents with federal statistics on ventilator usage by state, and ones on recent deaths and cases by state and county. Those documents could help gauge the effectiveness of Georgia’s efforts.
In addition to completely or heavily redacting many documents, GEMA initially provided many others in a format that makes them difficult, if not impossible, to read. For example, an Excel spreadsheet showing a list of available ventilators was converted to a virtually unreadable PDF document, with many of the columns too narrow to show the information they contained. Also converted to PDFs were spreadsheets with information on nursing homes, specimen collection sites and hospital medical equipment lists.
State law requires such documents to be provided in their original format. After the AJC objected, GEMA later provided the spreadsheets.
GEMA and the attorney general’s office also provided largely unredacted copies of some other documents this week, as the AJC was preparing to write about the transparency issue.
The documents, which initially had been almost completely redacted, were a memorandum of understanding with the Phoebe Putney Health System in Albany, which has been hit hard by the pandemic; a Georgia Department of Defense briefing on its activities during the pandemic; and spreadsheets containing projections of the need for protective equipment in Georgia.
Many other records withheld came from the federal government, usually the Federal Emergency Management Agency.
Those documents were emailed to GEMA officials and labeled “for official use only.” In addition, the charts showing protective equipment shipments contain footnotes that say the information may not be distributed “to non-governmental entities without the express authorization of FEMA.”
Among the open records law exemptions the state listed for withholding information is a provision that prohibits the release of documents specifically required by federal statute or regulation to be kept confidential.
“I just don’t feel it’s within our purview to change the status of a document that originated with another agency,” Mark Sexton, a GEMA deputy director, told the AJC in a brief interview.
However, the “for official use only” language “has no legal significance” under federal law, said Marshall, the attorney with the Reporters Committee for Freedom of the Press.
“It’s shorthand to suggest to federal agencies that there’s something about this document that maybe the agency doesn’t want out in the public,” he said. “But it is absolutely not the case that stamping something ‘for official use only’ makes it classified and it has to be withheld.”
In its most recent response to the AJC, GEMA also said the chart showing protective equipment shipments is exempt from disclosure under federal law because it contains confidential commercial information — equipment shipped by private companies.
However, the chart also contains information on shipments made by the U.S. government, which was redacted. In fact, all the information contained in the chart — even the type of equipment shipped — was redacted.
When contacted by the AJC, FEMA said it was up to state agencies to determine what could be made public under state laws. When asked to provide unredacted copies of some of the documents in question, FEMA said the newspaper must file a formal records request.
Marshall said it’s difficult to know for sure whether exemptions to open records laws apply to the various redacted documents because in most cases the state agencies have not provided details.
He said that while there are hundreds of exemptions to the federal Freedom of Information Act, the burden is on the government to prove an exemption applies, not on the public to prove there is no legitimate exemption.
“In the context of these records and this issue,” he said, “I can’t think of any reason why the government is withholding these documents.”
‘It’s very worrying’
GEMA isn’t the only Georgia agency that has failed the transparency test during the pandemic. In response to AJC records requests, the Georgia Department of Public Health said it would not provide a response to the requests until as long as 30 days after the governor declares the public health emergency has ended.
After legal challenges from the AJC and other news organizations that received similar responses, the DPH said it would provide the documents. In response to a May 13 open records request from the AJC, the agency on July 14 said it wanted $2,700 to produce the documents. The AJC paid but has yet to receive them.
Marshall sees government transparency problems across the country. He said federal agencies are “trying to interfere with states’ and state agencies’ transparency obligations under state law.”
“It’s very worrying,” he said, “especially in an area as serious as COVID-19 response, which could not be more crucial for the public to understand.”
Counts, with the First Amendment Foundation, said the lack of transparency could also allow public officials to avoid embarrassment and to control the narrative about the government’s response to the pandemic.
“The redacted information might also show favoritism. It could show corruption,” she said. “That is the problem. We don’t know what it shows.
“It seems like an opportunity for spinning information the way you want without having accountability to the public.”
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