This is an opinion column.
Last month, my colleague Amy Yurkanin set out to understand what is happening in Alabama nursing homes, where more than 300 residents and at least 16 employees have died of COVID-19.
She sent a public information request to the Alabama Department of Public Health.
While residents in nursing homes have accounted for about half of Alabama’s COVID-19 deaths, ADPH had not released even basic information about those facilities — stuff that would seem to serve a public purpose, like which nursing homes have been affected and how many people in those facilities had been sick or had died.
If you have a loved one who needs care or someone close to you already in one of these facilities, this would be important stuff you might want to know.
And yet, as other states had made this information available to all, Alabama had stubbornly refused to release it. In the South, Texas was the only other state to do the same. Finally, this week, the federal government has released that information instead.
So hurray for public information, and no thanks, Alabama.
But this is not a victory.
When submitting her information requests, Yurkanin wanted to dig deeper than just the raw numbers. She also wanted to understand how the ADPH had been handling this crisis.
She asked for emails between ADPH officials and nursing home officials about outbreaks at nursing homes, coronavirus testing in nursing homes, protective equipment shortages, and — the big one — ADPH’s plan for coronavirus response in these facilities.
With hundreds of people dying and many more sick, you’d hope the Health Department would have a plan, right?
However, if ADPH has one, it has refused to share it. It’s a secret. As it turns out, ADPH has lots of secrets, including much of what Yurkanin asked for.
In its response to Yurkanin’s request, ADPH’s attorney threw every exemption to the Alabama Open Records Act it could contort into an excuse for saying bug off.
For instance, an exception that protects information critical infrastructure. This exemption exists for reasons you might be able to imagine — if terrorists wanted to poison the water supply or blow up a bridge.
But in this instance, ADPH says it applies just as well to … a plan for keeping old people safe from coronavirus? ADPH acts like it’s the Empire trying to guard the secret Death Star plans from the Rebel Alliance.
Wait, it gets better … or if you don’t work for ADPH, worse.
ADPH’s attorney invoked an Attorney General’s opinion saying that drafts of documents aren’t covered by Alabama’s Open Records Act. Other state agencies have used that shield recently, too.
There’s just one problem with it. Last summer, the Alabama Supreme Court said that AG’s argument was hogwash and that draft documents are subject to the act.
“Moreover, it is not apparent why the definition of a ‘public writing’ or its synonym, ‘public record,’ would require the production of only ‘completed records in their final form,’” the state’s high court said in its ruling. “Again, this Court has stated that a ‘public writing’ includes records ‘reasonably necessary to record the business and activities required to be done or carried on by a public officer.’”
That a state agency’s lawyer isn’t familiar with the law they’re invoking should be worrisome by itself, but what should concern us more is that ADPH, which is supposed to protect Alabamians from harm, is hiding something. Maybe a lot of somethings.
But without a public records law that works, we may never know what that something is.
Alabama’s Open Records Act says every citizen is entitled to inspect public records and take copies upon request, but Alabama’s law is one of the weakest in the country. It doesn’t set deadlines by which the government must respond. It allows the government to set absurdly expensive fees for copies and “research costs.”
And most importantly, it doesn’t create an appeals process that’s affordable for anyone but those wealthy enough to fight protracted legal battles in court.
Earlier this year, state Sen. Cam Ward, R-Alabaster, introduced a bill to fix all those problems with the law. However, that bill died in committee when the coronavirus cut short the 2020 Legislative Session.
Perhaps it will get farther next year. Ward told me this week that he will bring the bill back every year until it gets passed.
Until then, nursing home residents and their loved ones will be left in the dark.
And access to public information will be just another victim of COVID-19.
Kyle Whitmire is the state political columnist for the Alabama Media Group.
You can follow his work on his Facebook page, The War on Dumb. And on Twitter. And on Instagram.
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