DV Journal

(This article first appeared in Broad + Liberty)

Editor’s note: The author of this article, Todd Shepherd, is not a neutral observer in the events described below. As a journalist with Broad + Liberty, he was the requester and lead plaintiff in the two Right-to-Know Law cases discussed in this story.

Over the last two months, Broad + Liberty has secured two important court rulings in its pursuit of documents related to the 2023 Mike Vereb scandal — a scandal that received additional scrutiny from national media as Gov. Josh Shapiro was one of two finalists to become the vice presidential running mate of Democratic nominee Kamala Harris in the summer of 2024.

The pair of rulings weren’t entirely in the outlet’s favor, but the portions that would be considered wins could end up delivering more transparency to reporters as well as members of the public who avail themselves of the commonwealth’s Right to Know Law.

In March of 2023, a young female deputy in the Office of Legislative Affairs abruptly resigned just one month into the job. She later filed complaints against Vereb, Shapiro’s secretary of the Office of Legislative Affairs. Vereb, a Montgomery County Republican, had held the same position with Shapiro at the Attorney General’s office as well.

In an earlier part of the court battle, Broad + Liberty forced the concession from the governor’s office that it had deleted the email account of Vereb’s female accuser. Although the governor has personally said his office follows all records-retention guidelines, Shapiro’s office has still never disclosed when that email account was deleted.

Although the deputy’s complaint was informally lodged in March and then more formally in late May or early June, Vereb didn’t resign until late September of that year.

This reporter has filed over twenty Right to Know requests combined at the governor’s office and the Office of Administration — essentially a kind of business- and HR-support office for the governor’s main office.

Last year, Broad + Liberty elevated two of those cases to Commonwealth Court.

In the first ruling from May, the RTK at issue sought emails from Vereb’s account for a one-month period that included the week the deputy quit. The request did not specify a subject matter or specific keywords.

That last aspect is important because courts have ruled that requesters who seek emails generally need to name the government activity they wish to examine. They do not have to provide this, however, if their timeframe is reasonably short — usually interpreted as a month or less.

The governor’s office compared the request to one in which a court “emphasized the fact that the request included the Acting Secretary of Health, as well as some of the most senior members of the Department of Health, and that the request would inevitably involve larger quantities of confidential and sensitive information and deliberation than a request of a similar scope” aimed at a lower ranking official.

Commonwealth Court Judge Michael Wojcik , however, wasn’t inclined to let this argument stand.

“If nothing else, we must remain vigilant to ensure that the objectives of the RTK Law are met. Access to information concerning the activities of the government does not hinge on the identity of the individual from whom records are sought,” Wojcik wrote.

“The Governor and other individuals in the Office cannot avoid a RTK Law request simply because they are high-ranking officials who transact large amounts of business on behalf of the citizens of the Commonwealth. Simply stated, the Governor and the employees in the Office stand in the same shoes as any other government official who is the subject of a RTK Law request.”

In the June ruling, the judge ruled that Shapiro’s office had improperly invoked the “deliberative process privilege” when trying to shield some emails from disclosure.

The “deliberative process privilege” shields records that are predecisional and deliberative, as a way to “encourage open, frank discussions on matters of policy,” according to the Reporter’s Committee for Freedom of the Press.

But in the Broad + Liberty request, Judge Wojcik analyzed many of the emails and determined the governor’s office had been overly generous in its assertion of the privilege.

Speaking with regard to a named set of emails, Wojcik said, “Our review of the documents reveals that they are related to the processing of travel reimbursements and are not reflective of a particularized deliberative process. In this regard, the documents do not reflect that the Office was carrying out deliberations of law or policymaking.”

The emails Wojcik referenced, won’t necessarily be turned over immediately, however, if at all. The judge ordered the Office of Open Records (OOR) to reexamine the emails in light of the other exemptions the governor’s office also applied to the same set of documents.

Still, both rulings have already impacted other Right to Know appeals. As a consequence of the most recent ruling, the OOR has now interrupted more than one RTK appeal this reporter had underway in order to say it would be reassessing “privilege” claims in light of the judge’s decision.

Manuel Bonder, spokesman for the Shapiro administration, called the idea that the rulings were “wins” for Broad + Liberty a “bad faith interpretation” and “another baseless attack that is completely divorced from the reality of the Court’s decision.”

“Notably, out of dozens of withheld records, the court only identified 3 that were not exempt.  The court’s finding that you were entitled to only three records out of the voluminous entries only further supports the office’s steadfast dedication to transparency and propriety,” Bonder said.

Bonder was also keen to point out that the court had dismissed an argument by Broad + Liberty in which this outlet argued that the governor’s office could not invoke an exemption for documents related to an official investigation — even if the investigation is noncriminal. Broad + Liberty argued that the investigation, to the extent there was one, was conducted by the Pennsylvania Human Relations Commission, and only after the accuser filed an official complaint. As a result, the governor’s office could not be shielded, the attorneys argued. Wojcik dismissed that argument and called it “tortured reasoning.”

Melissa Melewsky, media-law counsel for the Pennsylvania NewsMedia Association, says the court rulings underscore a crucial point that too often gets overlooked in Pennsylvania’s public records battles: agencies bear the burden of proving why a record should be withheld — and courts are increasingly insisting that burden must be met.

“Agencies cannot rely on boilerplate assertions or conclusory affidavits to support denials; detailed evidence is required,” Melewsky said. “There are almost no evidentiary hearings in the RTKL context, and that puts the public at a distinct disadvantage in the appeal process and requires agency affidavits supporting denial to be robust and subject to detailed review by the OOR and courts. Anything less allows agencies to hide public information without justification.”

“The holdings illustrate these principles in action and serve as a reminder to agencies, the OOR, courts, and requesters that an affidavit is not the final word on access, and anything less than detailed, meaningful evidence will not meet the burden of proof,” Melewsky concluded.

Melewsky’s concerns were identical to the subject of a recent house editorial from the Pittsburgh Post-Gazette, titled, “Pennsylvania’s Right to Know Law is too easily circumvented by the government.”

“Government officials can deny RTK requests simply by signing an affidavit claiming the documents aren’t subject to the law [because of privilege] — and requesters, whether media or private citizens, can do almost nothing to change that,” the board continued.

“[G]overnment officials can make a sworn statement affirming that documents meet one of the dozens of exceptions to public records in the RTKL, or that the documents don’t exist at all, and that’s the end of it,” the paper went on to say. “Requesters can’t easily produce evidence of bad faith because they have no right to a hearing — this is implied in the RTKL itself, as interpreted by the courts — and therefore no forum in which they can present contrary evidence.”

Broad + Liberty will likely win access to some of the documents Shapiro’s office labeled as “privileged” simply because it took the matter to court — something few requesters have the means to do.

Sunshine is the best disinfectant, people say. As a matter of physical science, it’s dubious, but as far as the government is concerned, letting the people see how the sausage is made has become an essential part of life in a democratic society. The politicians and bureaucrats represent us, so we should be able to know what they are doing in our name.

That’s the theory, anyway. And we have to carry that theory into practice, including Pennsylvania’s Right-to-Know Law. But as one Upper Moreland resident recently discovered, there is often a gap between what the law promises and what local governments are willing to deliver without being dragged to court.

Kaitlin McLaughlin, a nurse and mother of four, shared some of the same concerns of many Pennsylvania parents after the massive, pandemic-fuelled disruptions of the 2019-2020 school year. Unlike most, she took steps to find answers, formally requesting that the Upper Moreland School District — where her two older children attend classes — reveal the process that led them to cancel in-person classes in favor of  “virtual learning.”

What should have been a simple request has become a year-long odyssey. McLaughlin told Broad + Liberty that she first made the request in January of this year, asking for materials related to “the closure of in-person instruction and the continuation of the virtual learning model.” After she paid the processing fees the school district demanded, what she got was, in her words, “a box of nonsense.”

For four hundred dollars, McLaughlin received just under 150 records with redactions, most of which were unresponsive. To get the district to respond, she was forced to appeal their response to the Commonwealth’s Office of Open Records (OOR). The district dragged its feet in responding, which resulted in more time wasted in getting something the law already said McLaughlin was entitled to have.

By that time, she had decided to run for school board herself. But the change, if anything, made for even less cooperation.

The OOR ruled in September that most of McLaughlin’s challenges were well-grounded. Instead of running the kind of broad searches that might have captured all of the relevant documents, the district searched their e-mails and documents for specific phrases like “closure of in-person instruction” or “continuation of the virtual learning model”. Anything not containing those exact phrases was not produced.

“Obviously when you search for a phrase and it needs to require the entire phrase,” McLaughlin says, “it’s not going to turn up as many records.”

After granting several extensions, the OOR ruled in September that the district had “not demonstrated that its search for responsive records in its possession was sufficient.” OOR also ruled that the district overcharged McLaughlin for physical production of records that could have been delivered electronically and for free.

The district appealed that ruling to the Court of Common Pleas, which forced McLaughlin to hire legal counsel. The appeal is still pending at press time. Ordinarily, after the OOR rules, that’s that. But in a small number of instances, the government will elevate the matter to court. It puts yet another layer of burden on the requester, and also buys the government more time if they know the documents could lead to a public relations embarrassment, or worse.

Upper Moreland would rather spend the taxpayer’s money on high-priced legal battles than let a mother so much as read their deliberations on how her children are educated.

The whole affair is just one local example of a national trend of school administrators believing that parents deserve no input in what is being taught to their children.

“If they just gave me the records back in January,” McLaughlin says, “they wouldn’t have needed to spend all of this money to fight me on this, you know? And then when the OOR ruled in my favor, they still continued to fight me. What are you hiding?”

The district did not respond to a request for comment.

But the financial waste is not nearly as offensive as the willful obfuscation and delays and lack of democratic accountability. “Democracy Dies in Darkness,” as the Washington Post likes to say. Concerned parents like McLaughlin are trying to shine a light on their local government. The Upper Moreland School District should help her do that, not stand in her way.

The emergency of COVID-19 at first forced state and local governments to do what they had to do. Now, almost two years later, they think it allows them to do what they want to do — and not to tell the people how or why they are doing it. By enforcing the Right-to-Know Law, Pennsylvania’s courts can take one step in restoring the proper relationship between citizens and their public servants.

This article first appeared in Broad and Liberty.

Just as the Commonwealth Court struck down Gov. Tom Wolf’s mask mandate for public school students in a 4-1 decision Wednesday, Bucks County parents unveiled damning evidence showing the mandate was accompanied by extremely unethical coercion of local government by the state.

Specifically, Wolf’s health department apparently directed its allies embedded in the Bucks County Commissioners’ office to strip the Bucks County Health Department of its legally delegated authority.

The information parents obtained through Right-to-Know (RTK) requests includes letters from Alison Beam, an attorney serving as Wolf’s acting health care director, and email records that together describe how state officials worked with the commissioners to reverse guidance from the Bucks County Health Department. The letters and emails were from August 2021.

Those parents from the Central Bucks School District, among those who prevailed in Wednesday’s decision against the Pennsylvania Department of Health, specifically named Beam as a defendant. They are also part of a separate, but related suit against their district that is currently before the Court of Common Pleas in Bucks County.

The RTK records flesh out some of the key decision-makers who enabled the Wolf administration to coerce its more restrictive COVID-19 policy preferences on Bucks County. The state-local conflict kicked off with an August 23 letter from Beam to the Bucks County commissioners. In it, Beam opposed the 2021–2022 School Reopening Guidance and Frequently Asked Questions that Dr. David Damsker, the county health director, had circulated just days earlier on August 15.

Damsker wrote in his guidance, “Thankfully, all available evidence in Bucks County and—elsewhere—indicates that while serious illness in children with COVID-19 is possible, it is very rare.” He added, “There is also a clear consensus that students learn best while in school and there is no substitute for the advantages that in-person learning provides.”

But the Wolf administration was having none of it. Beam’s letter labeled “numerous aspects” of Damsker’s guidance as “inconsistent” with federal and state recommendations. In preparation, Faith Haeussler, director of intergovernmental affairs for the state health department, sent an August 23 email addressed to Diane M. Ellis-Marseglia, Bucks commissioners chair, alerting Ellis-Marseglia to Beam’s pending letter: “I would like to speak with you at your earliest convenience to discuss a letter that the Department of Health will be issuing in the future.”

From that point forward, Haeussler served as a conduit for communication between county and state government officials. The official response to Beam’s letter came from Margaret McKevitt, chief operating officer for Bucks County, who sent an email addressed to Beam and Haeussler where she attached the county’s amended, more restrictive, guidance. McKevitt’s email copied the commissioners and Damsker. The commissioners’ August 23 press release detailed those changes, but provided no evidence or statement that Damsker’s guidance had changed.

“Given Damsker’s past of being measured and consistent with his previous school guidance, it would have been extremely out of character for him to change his advice two days after issuing a guidance update,” Megan Brock, a parent active with a grassroots group known as ReOpen Bucks, observed. If Damsker’s guidance had remained in place, Brock suspects that schools would have had more flexibility.

How much authority Damsker and his constituents in Bucks County now have is an open question. The back and forth between the commissioners, Beam, and other Wolf administration officials indicate an effort to short-circuit local government, particularly the Bucks County Health Department.

Other email records worth highlighting came from Mark Hoffman, executive director of the Bucks County Intermediate Unit, who sent the county’s updated guidance to school superintendents at the behest of McKevitt—with Damsker out of the loop. There was also an August 24 email from Rob McGee, the superintendent of the Neshaminy School District, addressed to both Ellis-Marseglia and Damsker, that should be of interest to parents.

McGee submited that when Bucks followed its own health department guidelines, he was able to keep Neshaminy students in school.

“Sadly, the attached recommendation sets Neshaminy back to conditions less flexible and conducive to quality education than last year,” McGee wrote. “CDC recommendations are a ‘One-Size-Fits All’ for the nation,” he added.

The recent legal victory cannot make up for the time students have lost in school this past year, but it can help to restore self-government and, crucially, local control. The pandemic and its aftermath taught us how dangerous “one-size-fits all” can be.

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