As the ongoing pandemic continues to surge, the Ohio Court of Claims ruled last week that the state health department must share public records with , showing the number of beds and ventilators available for COVID-19 patients at individual hospitals throughout the state.
The ruling comes after Eye on Ohio initially sought the records.
鈥淚n times of crisis, transparency is paramount,鈥� said Rebekah Crawford, who has a Ph.D. in Health Communication, Relating & Organizing from Ohio University.
People want credibility and clear lines around what is known and what is uncertain. 鈥淲hen risk communicators are at their best,鈥� Crawford said, 鈥渢hey remain credible by showing what is known and what is not known and by being clear about why we don鈥檛 know, and what we鈥檙e going to do to find out.鈥�
When Eye on Ohio first requested records, at the end of March, the state had only about , according to the online . As of November 12, Ohio had approximately 274,500 confirmed cases, and about 5,700 people had died from the disease.
鈥淲e are in the midst of our third wave in Ohio,鈥� said in his November 11 address to the state. There had been warnings that cases would climb when weather turned cooler and people spent more time indoors again. But, DeWine stressed, the surge is 鈥渕uch more intense, widespread, and dangerous.鈥�
鈥淎s of today, every single one of our 88 counties has a high rate of virus spread, and areas of our state that were previously untouched鈥攐ur rural areas鈥攁re being hit especially hard,鈥� DeWine said.
If current trends don鈥檛 change, some parts of the state are 鈥渕aybe 鈥� from hospitals having to crowd out non-COVID-related care as they try to keep up with the surge, reported Andy Thomas, a medical doctor at Ohio State University鈥檚 Wexner Medical Center, during the governor鈥檚 November 9 press conference.
Eye on Ohio sought records with the data as a way to provide readers with timely, local information about the ability of healthcare facilities in their area to deal with the pandemic.
In a state with nearly 45,000 square miles, that local information could tell citizens more about Ohio鈥檚 readiness to deal with emergencies for all its residents. Availability of beds and respirators in Cincinnati, for example, would mean little if hot spots of emergencies were concentrated in Ashtabula, nearly 300 miles away by car.
Transparency matters
Leaders in times of crisis tend to assume that the public is going to panic, Crawford said, even though 鈥渞esearch actually shows that panic isn鈥檛 the most prominent or even in the top ten of reactions that people have to communications of risk. People are most likely to be in denial. Studies of show that people were excessively polite as they exited the World Trade Center because , they get especially compliant and cooperative in high stress or high risk situations.鈥�
Lack of transparency creates suspicion, hurts credibility, and diminishes trust-worthiness. Crawford said, 鈥減eople who are untrained in risk communication go to that 鈥榙on鈥檛 panic鈥� communication mode.鈥�
Another misnomer is the assumption that people can鈥檛 understand how to interpret the information, so, Crawford said, 鈥渞ather than taking it upon themselves to communicate in a transparent and understandable way they withhold information and say 鈥榳e鈥檒l make decisions for you鈥� which doesn鈥檛 work when people are anxious.鈥�
鈥淎 risk expert cannot look at some numbers and then tell a community 鈥榯his isn鈥檛 a problem for you鈥� because the community may decide that it is a concern 鈥榖ecause you don鈥檛 speak for us or understand what we value,鈥欌�� Crawford said.
Transparency is key for the public so individual communities can take the information given and decide for themselves what actions should be taken and individual needs addressed based on the needs and values of their demographic.
A need for transparency
Reporters initially sought information from individual hospitals but were told that all information was being funneled to the Ohio Hospital Association, which in turn provided it to the Department of Health. And the Department of Health had arranged for the data to be entered into a database called Surgenet.
According to a court affidavit, Surgenet was first developed by the Greater Dayton Area Health Information Network (GDAHIN). The software was subsequently enhanced to its present "all hazards" function as "a tool to be utilized during an emergency involving the public's health which could severely impact hospital services." Eye on Ohio was told that only the Department of Health would grant access to the materials.
Eye on Ohio then filed a formal public records request for access to the data or records with it. After cancelling a meeting that had been scheduled to discuss the request, the Department of Health then issued a flat-out denial, claiming the records were 鈥渟ecurity and infrastructure records鈥� under an exception to the state鈥檚 public records law.
Eye on Ohio had no option but to file a case with the Ohio Court of Claims.
The court said the statutory language for that security just didn鈥檛 fit. That part of the Ohio Revised Code exempts security and infrastructure records that are prepared for the express purpose of protecting against or responding to terrorism, school shootings or similar acts of attack or sabotage. None of those apply to the COVID-19 pandemic.
鈥淓xceptions to disclosure are strictly construed,鈥� wrote Special Master Jeff Clark in his 鈥淎nd, in this case, the Department of Health failed to connect the data sought by Eye on Ohio with the prevention, mitigation or response to any existing or anticipated act of terrorism.鈥�
鈥淭o meet the burden of proof regarding alleged security records, ODH must offer more than its own conclusory labeling,鈥� Clark wrote. He likewise rejected the Department of Health鈥檚 assertion that it should be able to stop release of the records because it didn鈥檛 want to discuss them.
鈥淓ven assuming, arguendo, that some hospitals would rather not disclose their bed and resource availability, it is well-settled that public offices may not withhold records merely because of a policy preference for confidentiality,鈥� Clark wrote.
Court of Claims Judge Patrick McGrath approved the Special Master鈥檚 report and recommendation on November 10.
In 2020, so far there have been 24 public records cases resolved in Ohio. In 14 cases, the party dismissed the action because records were provided. In seven cases, the party just dismissed the case. It's not clear if the records were provided or they just weren't relevant any more. Just three were decided by the Court of Claims.
What鈥檚 next
Despite the court鈥檚 ruling, Eye on Ohio is still waiting for the records. In response to its journalists鈥� requests for access to the database, attorney Socrates Tuch wrote, 鈥淚nstead, the Department is preparing a data extract to be provided on an Excel spreadsheet or sheets. Doing so is taking time as the Department staff attempts to accommodate this task with the COVID response.鈥�
Ohio law generally requires a reasonable time for production of public records. However, Eye on Ohio first sought the records with the information at the end of March. And the Special Master鈥檚 October 20 report came out more than three weeks ago.
Eye on Ohio again pressed for production of the materials on Friday.
鈥淲e are working on gathering the records and when they are ready, we will send them along,鈥� responded Press Secretary Melanie Amato at the Department of Health.
When Eye on Ohio finally gets the materials, it plans to provide further reports. Its journalists hope that more complete, local information can help the public as the pandemic continues.
Disclosure of the mounting strain on hospitals in their vicinity might also make people more vigilant in their efforts to control the pandemic and to 鈥渇latten the curve鈥� of cases. Otherwise, as scientists have previously warned, the pandemic will cause that could have been avoided.
As for the resistance against complete transparency, 鈥淔ar be it from me to criticize people who are providing care at a great risk to their own health in a time of heightened need,鈥� Crawford said. 鈥淚鈥檓 not talking about the doctors and the nurses who are working in the hospitals, but the managers and administrators who are at the upper echelon of those really hierarchical corporations in some cases are motivated not to cooperate and share information. It really goes counter to public health needs and the demands in care, and I would say ethical and medical provision.鈥�
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