COVID-19 Press Freedom and Government Transparency – Technologist

In response to the COVID-19 pandemic, the Reporters Committee for Freedom of the Press has outlined recommendations for journalists, legislators, and courts to ensure the press and public’s right of access to government information and proceedings is protected while entities have taken necessary steps to stop the spread of the coronavirus.

Emergency Powers and the Press

Beginning in March 2020, communities around the United States took various emergency measures to contain the spread of COVID-19. Most have been forms of mandated “social distancing,” such as bans on large gatherings and the closure of non-essential businesses. During the outset of the pandemic, numerous counties issued “shelter-in-place” orders, which limited when residents could leave home. The Reporters Committee has received a number of questions about how such measures could impact members of the news media, who are working to keep their communities informed.

Is the news media an “essential service” exempt from social distancing orders?

Emergency responses like “shelter-in-place” orders or other forms of social distancing are decisions made by state and local governments. In California, for instance, Gov. Gavin Newsom has broad emergency authorities, but certain Bay Area counties had also issued their own shelter-in-place orders. Those orders classified newspapers, television, radio, and other media services as “essential businesses,” which are exempt from the restrictions but are still strongly urged to comply with social distancing measures such as working six feet apart.

To determine whether and how a news organization is affected by social distancing orders, consult local and state emergency authorities. If you are having difficulty finding contact information for the relevant agency, please reach out to the Reporters Committee’s hotline at hotline@rcfp.org.

The Reporters Committee strongly urges state and local emergency authorities to define news media organizations as “essential businesses” or “essential services.”

How should I prepare to move about in an area subject to social distancing measures?

Journalists working in areas subject to mandatory “social distancing” measures, particularly “shelter-in-place” orders, should, at a minimum, (1) carry press identification at all times; (2) carry contact information for an attorney (or the Reporters Committee’s hotline number: 1-800-336-4243); (3) stay in frequent contact with their employer; and (4) carry a copy of any relevant local or state ordinance.

For areas that are particularly hard hit, journalists should consider best practices for reporting during natural disasters, such as this guide by the Committee to Protect Journalists.

What else can we expect?

Though states and localities are the primary emergency responders, the federal government also has broad emergency power in public health crises, including the ability to limit interstate and foreign travel. To date, more extensive measures, like a regional quarantine, have not been implemented (though there have been a number of individual quarantine or isolation orders in effect throughout the course of the pandemic). The laws on mandatory quarantines, and other emergency limitations on civil liberties that could impact the press, are complex. The Cybersecurity and Infrastructure Security Agency (CISA) issued guidance on essential critical infrastructure workers. On page 9, the memorandum names “Workers who support radio, television, and media service, including, but not limited to front line news reporters, studio, and technicians for newsgathering and reporting” as essential.

The Reporters Committee will continue to prepare resources as events develop. For specific questions, please contact the hotline at hotline@rcfp.org.

View the COVID-19 Emergency Measures tracker. (Note: We will continue to update this tracker as we learn of new measures. All dates referenced therein are from 2020.) 

Special Analyses

• In a special analysis published on April 2, 2020, the Reporters Committee examined the expansive powers that federal, state, territorial, tribal, and local governments have in a public health emergency.
• In a follow-up special analysis published on April 16, 2020, the Reporters Committee surveyed the laws of all 50 states and the five major U.S. territories for media-specific exemptions from government emergency management laws. The main takeaway: More than half of the states and territories have some press carve-out in their emergency laws.

Open Meetings and Public Records

Public records and open meetings laws — also called freedom of information laws, sunshine acts, or open records laws — are the primary legal means for the public to seek information about the workings of the executive branch of federal, state, and local governments. The Supreme Court of the United States has recognized, for example, that the purpose of the federal Freedom of Information Act (FOIA) “is to ensure an informed citizenry, vital to the functioning of a democratic society.” NLRB. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). During a public health crisis, transparency is especially important to ensure the availability of information about the government’s response to the crisis. Reporters and news organizations play an indispensable role in communicating information and engaging in oversight on behalf of the public.

At the same time, in response to the current COVID-19 pandemic, government agencies at the federal, state, and local levels have taken emergency steps to combat the spread of the virus and, as a result, many government employees are working from home, and may have limited access to agency records and systems. Many government meetings that would otherwise be conducted in open public settings are also shifting to phone or video conferences, sometimes with little or no notice to the public. In light of these concerns, the Reporters Committee has issued the following suggested best practices for governments and journalists to ensure timely public access to government information during the COVID-19 pandemic.

Should agencies proactively release records related to COVID-19?

Yes! Government agencies at all levels should proactively release records and information about COVID-19 and how government agencies and officials are responding to it. Under the federal FOIA, for example, agencies are required to proactively publish records that have been released to a requester and are likely to be the subject of future requests.

Proactive release of records ensures timely access by members of the news media who can, in turn, inform the public. Proactive release of records also means journalists need not submit formal records requests and public employees can focus on disseminating information.

How should government agencies and requesters handle the submission of records requests?

Government agencies should take steps to encourage the submission of electronic records requests, including by email. Under the federal FOIA, the government is required to maintain an online portal for the submission of requests. Under state public records laws, agencies may also be required to accept electronic requests. New York, for example, generally requires agencies to accept requests via email.

Journalists should submit records requests electronically whenever possible to facilitate their receipt and internal distribution within government. Journalists may want to consider prioritizing the submission of records requests related to COVID-19. Such requests may also receive a timelier response if they are targeted to a limited number of records, and reporters may want to ask for expedited processing of federal FOIA requests related to COVID-19.

The Reporters Committee is aware that the FBI previously shut down its electronic FOIA portal and asked requesters to mail FOIA requests to the agency. There did not appear to be any statutory basis for such a closure, nor had there been a public explanation for the FBI’s actions. (The FBI reinstated its e-FOIA portal, but nonetheless closed its record management division through April 2020.) During the 2018-19 government shutdown, at least one agency closed its FOIA submission website, but others continued to accept requests.

How should government agencies and employees process records requests in light of COVID-19?

The COVID-19 pandemic is not a reason for government agencies to stop accepting or processing records requests. The Reporters Committee is dismayed by the D.C. Council’s enactment of emergency legislation that permitted agencies to delay responding records requests during this public health emergency. (As of 2021, such legislation has been rescinded, but the legislation led to inevitable backlogs that still persist.) Other agencies around the country have reportedly suspended responsesto records requests. The public has a heightened need for access to information at this time, especially with respect to records related to the pandemic and governments’ responses.

Many government employees and contractors appropriately have shifted to working remotely to promote social distancing. It is incumbent upon government entities in such situations to provide their employees and contractors the necessary tools and resources to continue processing records requests.

Federal agencies should liberally grant expedited processing of FOIA requests related to COVID-19 from members of the news media under the statutory definition of compelling need. To the extent other public records laws allow for similar procedures, state and local entities should also expedite and prioritize such requests.

Generally, public records laws require the government to provide a substantive response within a definite number of days. For example, under the federal FOIA, agencies must generally provide a determination within 20 days, excluding weekends and public holidays. Most state public records laws similarly require a substantive response within a number of days. Some laws allow government entities to extend these deadlines in various circumstances, which may or may not apply to issues raised by the COVID-19 response.

Government employees charged with processing records who believe they cannot meet the statutory deadline for providing a response may wish to communicate with requesters to inquire whether they would be willing to modify their request or agree to an alternative processing timeframe. Some public records laws allow or suggest such a process. Given that many journalists are working remotely, government employees should communicate with them via email whenever possible.

Mutual communication and flexibility between requesters and responding agencies should be a priority to ensure timely and continued access to government information.

What are some best practices for ensuring access to public meetings?

If government bodies shift public meetings to online or telephonic formats, they should ensure that the public is provided as much advance notice of such meetings as possible.

Public bodies should allow public attendance and participation in online or telephonic meetings in accordance with open meetings laws and should widely distribute instructions for remotely joining such events. California Gov. Gavin Newsom’s Executive Order N-25-20, for example, authorizes government bodies to “make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to attend and to address” the body.

Public meetings should also, wherever possible, be recorded and made promptly available to the public online. In Pennsylvania, for example, the Office of Open Records has issued guidance that “strongly recommends that any agency holding such a meeting record the meeting and proactively make the recording available (preferably online) so that a full and complete record of the meeting is available to the public.”

View the COVID-19 State Public Records and Open Meetings Measures or the COVID-19 Federal Agency Chart. (Note: We will continue to update these as we learn of new measures.)

As always, you can also find information on the availability of autopsy and coroners’ reports, as well as infectious disease records, in our Open Government Guide.

Court Access

Federal and state courts, like all public institutions, are taking proactive steps to fight the spread of COVID-19. The Reporters Committee for Freedom of the Press supports these efforts. However, particularly in times of national crisis, visibility into the operations of government, including the judiciary, is crucial. The Reporters Committee is working to track the orders, advisories, and announcements of state and federal courts implementing new procedures to combat the spread of the virus, and it has also received a number of questions about how these new measures impact press and public access to judicial proceedings and court records.

What steps have courts taken so far, and how can these measures be implemented in a way that ensures continued press and public access to judicial proceedings?

Currently, while some courts remain open to the general public, others have placed limits on the number of people who may attend court proceedings. Still other courts have closed to the public altogether, limiting physical attendance to participants, judges, court staff, and in some cases, members of the media. Many courts have opted for some combination of: (1) restricting segments of the public infected with, or likely to have been infected with, COVID-19 from entering courthouses; (2) closing proceedings to the public; (3) authorizing the use of teleconferences for judicial proceedings that would otherwise have been held in open court; and (4) postponing or continuing proceedings.

On April 13, 2020,the U.S. Supreme Court issued a press release stating that it will be hearing 10 oral arguments via telephone in May 2020. It explained that “[t]he Court anticipates providing a live audio feed of these arguments to news media.” The New York Times has reported that a court spokesperson said that the public will be able to access the audio feed as well.

The Judicial Conference of the United States, the national policy-making body for the federal courts, issued guidance to federal courts pursuant to section 15002(b) of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act). That guidance authorized the use of video and teleconferencing for certain criminal proceedings and teleconferencing for civil proceedings. The Judicial Conference made clear that the public and press should be able to continue observing these remote proceedings.

Courts have already adopted measures in line with the Judicial Conference’s guidance. For instance, Judge Preska of the U.S. District Court for the Southern District of New York directed the parties in a civil litigation matter to file the dial-in information for a telephonic hearing on the public docket.  See Giuffre v. Maxwell, 1:15-cv-07433-LAP, ECF No. 1039 (S.D.N.Y. Mar. 30, 2020); ECF No. 1041 (S.D.N.Y. Mar. 30, 2020) (listing dial-in information). The Clerk of Court for the U.S. District Court for Rhode Island explained that they set up a separate muted conference line for the media and public to listen into proceedings.

For courts adopting measures designed to limit physical access to courthouses to slow the spread of the virus, the Reporters Committee makes the following recommendations:

1. Courts closed to the general public but still conducting in-person proceedings should permit members of the media to access those proceedings — in person or, preferably, remotely.
2. Courts should provide live video or, at a minimum, audio of court proceedings. For example, the U.S. Court of Appeals for the D.C. Circuit, which issued a notice on March 13, 2020, restricting physical access to its courthouse to “judges, court staff, members of the media, and visitors with official business with the courts,” will continue its normal practice to livestream audio of all oral arguments. This practice should be extended to all proceedings that would normally be held in open court. In a notice dated March 23, 2020 (updated April 3, 2020, to acknowledge the Judicial Conference’s guidance following the CARES Act), the Northern District of California stated that hearings held by teleconference will be conducted on a conference call line available to members of the press and public free of charge, via dial-in info available on each case’s PACER docket. In addition to live video or audio (or if livestreaming is not technically feasible), courts closed to the public, and those that have authorized the use of videoconference and/or teleconferences for arguments or hearings that would otherwise have been held in open court, should provide same-day video or audio recordings of their proceedings. For example, the U.S. Court of Appeals for the Federal Circuit issued an advisory stating that, on top of live streaming, it will continue its ongoing practice of posting audio recordings of arguments on the court’s website at the end of each day. And the U.S. District Court for the District of Alaska issued a general order on March 30, 2020, stating that, in addition to public access to live audio for teleconference proceedings, recordings of the audio would be available to the public on request for no additional cost.
3. Many jurisdictions have postponed or continued some or all in-court proceedings. The Reporters Committee urges courts to provide the public with notice of any such postponements or continuances.

Will press and public access to judicial records be affected by these preventative measures?

Court records made available online — such as those in federal courts filed through CM/ECF and available via PACER — should continue to be available to members of the public electronically. Courts who charge fees for electronic access to court records (beyond the cost of dissemination) through systems like PACER should consider suspending such fees while restrictions on physical access to courthouses for the public remain in place. In addition, courts permitting hearings and other judicial proceedings to take place via teleconference should make transcripts of those proceedings available electronically to the public for free.

Courts where electronic records are not typically available to the public through systems like PACER should take reasonable steps to make court records available to the public electronically on court websites or, at a minimum, upon request.

If court staff has shifted to working remotely to promote social distancing, it is incumbent upon courts in such situations to provide their employees, the press, and the public with a mechanism to make requests for access to court records and to authorize remote staff to disseminate those records via or email or some other electronic means.

View the Federal and State Court Responses tracker. (Note: We will continue to update this tracker as we learn of new measures.) 

Journalists’ guide to HIPAA during COVID-19

What is HIPAA? What information about COVID-19 cases is being released?

The Health Insurance Portability and Accountability Act is a federal law enacted in 1996 that required the U.S. Department of Health and Human Services to establish federal health privacy regulations. Commonly known as the “Privacy Rule,” the regulations are intended “to assure that individuals’ health information is properly protected while allowing the flow of health information needed to provide and promote high quality health care and to protect the public’s health and well being.”

Reporters and news organizations seeking information related to the COVID-19 pandemic have frequently been told by government agencies and officials, as well as private entities in the health care system (such as nursing homes), that HIPAA prevents them from releasing certain information. But HIPAA’s applicability and scope are often misunderstood, resulting in the public being deprived of important information about the pandemic, including state and local governments’ preparedness and responses.

Reporters, government agencies, and private entities should be aware of both the limited scope of the Privacy Rule and its exceptions that may allow — or require — information related to COVID-19 to be released. For example, as discussed below, HIPAA does not bar the release of information that is required to be disclosed under state public records laws. Data about COVID-19 can also be released under a variety of exceptions.

Indeed, many jurisdictions have released detailed data about COVID-19 cases. For example:

• The South Carolina Department of Health and Environmental Control provides reported cases by zip code, including an estimated total number of cases by county; the state releases projections of needed hospital resources and COVID-19 deaths; state-wide data broken down by age, sex, and race/ethnicity is also available.
• The Illinois Department of Public Health releases zip code-specific data, including number of tests, positive cases, and deaths. State-wide age, race/ethnicity, and sex breakdowns for confirmed cases, completed tests, and deaths are also available.
• Maryland releases the number of confirmed cases by zip code, along with state-wide age, sex, and race/ethnicity breakdowns.
• San Francisco provides the number of confirmed cases by zip code, as well as a city-wide breakdown for gender, age groups, and race/ethnicity.
• New York City releases the number of confirmed cases by zip code, and city-wide information on age groups, sex, and race/ethnicity.

Johns Hopkins University publishes a map with updated information about which states are releasing COVID-19 data by race.

Many jurisdictions have also released information about the prevalence of COVID-19 in individual nursing homes and long-term care facilities. According to the Kaiser Family Foundation, at least some facility-specific information is available in about 20 states as of April 23, 2020. The California Department of Public Health publishes a list of all skilled nursing facilities in the state by name, along with their county and counts of how many confirmed cases there are among health care workers and residents. Similarly, South Carolina officials have provided a list of the names of facilities with confirmed cases, the facility’s address, and the number of confirmed COVID-19 cases in residents and/or staff.

HIPAA: A basic flow chart

A basic flowchart for HIPAA and the Privacy Rule is included below and explored in more detail in the following sections.

Step 1: Who does HIPAA apply to?

HIPAA and the Privacy Rule only apply to covered entities and their business associates; they do not apply to every entity that may possess medical, health, or COVID-19 information. If the entity in question is not a “covered entity,” then HIPAA and the Privacy Rule do not apply.

The following three categories of entities fall within the definition of a “covered entity”:

1. Health Plans, such as health, dental, vision, and prescription drug insurers, HMOs, Medicare and Medicaid supplement insurers, and employer-sponsored group health plans.
2. Health Care Providers, if they electronically transmit health information in connection with certain transactions. Health care providers may include physicians, dentists, hospitals, and other entities that furnish, bill, or are paid for health care.
3. Health Care Clearinghouses, such as billing services and community health management information systems.

These covered entities may also have “business associates” — persons or organizations that are not part of the covered entity’s workforce, but who work with a covered entity and are subject to the Privacy Rule. More information about covered entities and their business associates is available here.

HIPAA also recognizes “hybrid entities,” which are covered entities whose activities include both covered and non-covered functions, but who have elected to designate the components that perform covered functions as health care components. Most of the provisions of the Privacy Rule then only apply to the designated health care components of the hybrid entity. For example, state, county and local health departments may perform both covered and non-covered functions and elect to become hybrid entities.

Step 2: What kinds of information does HIPAA apply to?

Not all types of medical or health information fall within the scope of HIPAA and the Privacy Rule. The Privacy Rule applies to  “protected health information,” which is generally defined as information that:

1. Is created or received by a health care provider, health plan, employer, or health care clearinghouse;
2. Identifies an individual (or there is a reasonable basis to believe it can be used to identify an individual); and
3. That relates to:
   1. 1. “the past, present, or future physical or mental health or condition of an individual;”
      2. “the provision of health care to an individual;” or
      3. “the past, present, or future payment for the provision of health care to an individual.”

If the information in question is not protected health information, then the Privacy Rule does not bar its disclosure.

It is important to note that protected health information may be turned into “de-identified” information that is not subject to the Privacy Rule and therefore can be released. There are two ways of de-identifying information: the “Expert Determination” method and the “Safe Harbor” method.

• Under the Expert Determination method, an expert “determines that the risk is very small that the information could be used, alone or in combination with other reasonably available information, by an anticipated recipient to identify an individual.”
• Under the Safe Harbor method, information becomes de-identified when 18 characteristics are removed, which include names, certain types of geographic information, dates, certain contact information, and biometric identifiers.

Step 3: If protected health information is requested from a covered entity, is there an exception that allows or requires the information to be released? 

Even if a covered entity is asked for protected health information, HIPAA contains many exceptions that may allow or require such information to be disclosed. Several of the most relevant exceptions for reporters covering COVID-19 are identified below.

A. The “Required by Law” Exception & State Public Records Laws

Under the “required by law” exception to HIPAA, a government entity that is a “covered entity” is allowed to release “protected health information” if it is required to be released under a different law. In other words, HIPAA does not bar disclosure of records or information that are otherwise required to be released under a state’s public records law.

The “required by law” exception states that “[a] covered entity may use or disclose protected health information to the extent that such use or disclosure is required by law and the use or disclosure complies with and is limited to the relevant requirements of such law.”  45 C.F.R. § 164.512(a)(1). HHS has issued guidance that expressly recognizes that this exception allows the disclosure of information under state public records laws: “where a state public records law mandates that a covered entity disclose protected health information, the covered entity is permitted by the Privacy Rule to make the disclosure, provided the disclosure complies with and is limited to the relevant requirements of the public records law.”

The interaction between HIPAA and state public records laws is discussed in both state court decisions and guidance from state officials. For example, in 2006, the Ohio Supreme Court held that HIPAA could not bar disclosure of lead contamination-related records where disclosure was required by the Ohio Public Records Act. See State ex rel. Cincinnati Enquirer v. Daniels, 844 N.E.2d 1181 (Ohio 2006). Likewise, the Tennessee Attorney General noted in 2015 that “when Tennessee’s Public Records Act requires a covered entity to disclose [protected health information], the covered entity is permitted under HIPAA’s Privacy Rule to make the disclosure without running afoul of HIPAA as long as the disclosure complies with the Public Records Act.” Tenn. Op. Atty. Gen. No. 15-48, at *3 (Tenn. A.G. June 5, 2015).

B. The Health/Safety Exception

HIPAA also contains an exception that allows covered entities to disclose protected health information if it “is necessary to prevent or lessen a serious and imminent threat to the health or safety of a person or the public” and the disclosure is to “a person or persons reasonably able to prevent or lessen the threat.” 45 C.F.R. § 164.512(j).

As illustrated by the declarations of a state of emergency, stay-at-home orders, and other measures taken across the country to combat the spread of coronavirus, COVID-19 clearly poses a serious threat to the health of the public. A strong argument can be made that providing detailed information about the prevalence of the disease in different areas and among different groups gives members of the public valuable information about the threat to them and their community, and can help inform their decisions, including to continue engaging in social distancing. Such actions by members of the public are key to “prevent[ing] or lessen[ing]” the “serious and imminent threat” posed to the public by COVID-19. The Centers for Disease Control and Prevention, for example, has issued guidance stating, “when COVID-19 is spreading in your area, everyone should limit close contact with individuals outside your household in indoor and outdoor spaces.”

The news media is well-positioned to prevent or lessen the threat to individuals posed by COVID-19 because its primary role is to communicate information to the public. As the Supreme Court recognized decades ago, the press is “a vital source of public information. The newspapers, magazines, and other journals of the country, it is safe to say, have shed and continue to shed, more light on the public and business affairs of the nation than any other instrumentality of publicity.” Grosjean v. Am. Press Co., 297 U.S. 233, 250 (1936). And as The New York Times has reported, “[n]o single agency has provided the public with an accurate, up-to-date record of coronavirus cases, tracked to the county level.” Accordingly, entities like the New York Times, Washington Post, and Reuters have collected and disseminated comprehensive information about the prevalence of COVID-19 in the United States. State and local news media have also disseminated such information across the nation, such as the Texas Tribune, Detroit Free Press, Los Angeles Times, WRAL, The Oregonian, and others. With more data from government entities and private entities, journalists can better inform the public, who in turn can help reduce the threat of the pandemic.

C. Other Exceptions and Disclosure Authorizations

• • • Authorization: Protected health information can be disclosed by a covered entity if it has written, signed authorization from the individual it concerns. 45 C.F.R. § 164.508. HHS guidance itself makes clear that a covered entity may disclose a patient’s entire medical record, so long as it has the proper authorization.
    • Public health authority: Protected health information can be disclosed by a covered entity to a “public health authority that is authorized by law to collect or receive such information for the purpose of preventing or controlling disease, injury, or disability.” 45 C.F.R. § 164.512(b)(i).
    • Family and friends: A covered entity may disclose to a “family member, other relative, or a close personal friend of the individual, or any other person identified by the individual” protected health information that is directly relevant to their involvement with an individual’s health care. 45 C.F.R. § 164.510(b). According to HHS guidance from March 2020, that includes information that could help locate and notify family members or friends in charge of a patient’s care. Such information may be shared with “the press” and “the public at large.”
    • Facility directory information: Hospitals and other health care facilities are generally allowed to provide “directory” information about an individual when they are asked about a patient by name; such information is used “to inform visitors or callers about a patient’s location in the facility and general condition.” Directory information may include:
      • • the individual’s name
        • the individual’s location in the facility
        • the individual’s condition described in general terms that does not communicate specific medical information about the individual (e.g., critical or stable, deceased, or treated and released), and
        • the individual’s religious affiliation.