WE EXPECT GOVERNMENT SECRECY FROM THE PENTAGON OR THE CIA — NOT FROM OUR UNIVERSITIES AND OUR SCHOOLS. BUT IN MANY CASES, INSTITUTIONS DESIGNED TO PROTECT OUR CHILDREN ARE INSTEAD HIDING CRITICAL INFORMATION.IT LEAVES US ASKING A LOT OF QUESTIONS. ONE OF WHICH IS SIMPLE … WHY DON’T WE KNOW?OVER THE FOLLOWING EPISODES, WE ARE TRYING TO FIGURE THAT OUT.
BONUS: Secrecy and the Coronavirus
This week we're sharing a Bonus Episode of Why Don't We Know, focused on secrecy and data during the pandemic. Government agencies everywhere, not just schools, are using COVID19 as an excuse for not sharing information.We found some particularly puzzling examples, like at the FBI, where the open records office decided to only accept mail-in requests, not electronic ones.Other FOIA office phone lines were disconnected. Calls went unreturned. Emails unanswered. In this episode, we also explore how government agencies are misapplying the Health Insurance and Portability Act. You probably know it as HIPAA.Our two guests, Carolyne Hartley, a privacy and compliance strategist and expert for HIPAA cases, and Al-Amyn Sumar, a media law attorney who is trying to help news organizations get better data, talk to us about how many officials either don't understand what HIPAA says, or are hoping that the public doesn't understand what it says, and are using it to hide critical information. “I see it cited on Twitter all the time in all kinds of different contexts where people say, "Well, HIPAA protects this," and actually HIPAA has nothing to do with whatever they're talking about,” Sumar said. According to Hartley, the confusion over it often boils down to one thing: Politics.“We're kind of victims of our own freedom,” Hartley said. “In a communist country, you wouldn't have that freedom. The communist government would come in and say, you tell us who's got COVID, who's been diagnosed, give us the names and the people you've been around, and we're going to contact every one of those. In our country where we do exercise the luxury of freedom, unfortunately, that boils down to whether or not the public health authority, or the individual nursing home decides that they want to share that information.”
Up In Flames
What comes to mind when you think of a college town?Old brick buildings covered in ivy. Some narrow, tree-lined streets, with little bookstores and coffee shops.And that’s because the biggest public universities are generally in small towns. Towns that share few common demographic and geographic features: A lot of them are more than 150 years old. Many in areas that are rural. Often, the towns around them are very dependent on the university economy. And often, even with the financial prop of being a university town, they are still economically depressed.This situation accentuates a kind of class-system when it comes to campus housing -- students (or parents) who can afford the big, shiny new multi-story off campus apartments, and those who turn to the cheaper option: old converted homes that have been divided up into as many living spaces as possible so they can be rented to students.Some of these houses are owned by upstanding landlords, but some are not. And many are in towns where there is no vigilant code enforcement.So for this episode, we thought we’d put ourselves in the shoes of a student or parent who has just a few hours -- not a few weeks -- to search for code inspection reports. We searched the websites for local municipalities in more than a dozen major college towns, first trying to find out if the safety records are easily available online, then if not, with a phone call follow up to the code inspection office to see how we could get the information. The results varied greatly.
Public, Not Public
It was the worst-case scenario for a university -- criminal charges, coupled with financial ruin.And after the two chief executives file into court to enter a guilty plea, the chancellor tells the judge,“it was never my intention to hurt the institution. I was trying to help.”What happened here at the University of Wisconsin Osh Kosh was not a sex scandal, or a sports scandal, or the kind of financial scandal that makes for salacious headlines. It didn’t really get a ton of attention.There were no big splashy purchases. The men were not accused of misusing money in a way that benefitted themselves. “Personally I don't think this should have been a criminal conviction, let alone a felony," one defense attorney told the local television station afterward. What they were accused of -- at its heart -- was trying to help the university. So what went so very wrong?
At North Carolina State, it’s the NCAA. At the University of California, it was a brokerage firm. At the University of Pittsburgh, it was a health plan. For hundreds of other schools, it’s private search firms.More and more public universities are using private “portals” to house documents that otherwise would be public -- shielding them from open records laws. Instances hinting at this practice have surfaced during scandal, investigations, and in lawsuits. But it’s hard to track how widespread this has become, since the practice is inherently secret. It’s designed to be hidden. However, Why Don’t We Know reporters, have found that one of the most prevalent uses of these portals happens when universities are in search of a new chief executive. “In many cases, the contracts for a search, the contract between the university and the search firm specifically state that the search firm owns the data,” said Judith Wilde, a professor at George Mason University who has been researching secret presidential searches. “They collect their CVs. They collect the letters.”
EXTRA: When speech isn’t free, but it should be
As students return to campus amidst a global pandemic, news stories are popping up, citing the concerns of residents assistants in dormitories about how some universities are handling safety.Almost all of the concerns are from RAs who are speaking anonymously, and almost all of the stories cite policies that prevent them from speaking on the record.In Episode 2, we talked about how Brechner Center research found that public universities are unconstitutionally gagging the rights of student athletes by making rules that they can’t speak to the media. Similar research has found that this is a problem for resident assistants too.Of the 20 public universities where we were able to obtain policies, we found at least 11 were problematic, saying things like .. “do not speak with any media” and “call the department head if the media has questions.”The worst example we found was at East Carolina University, where the RA contract says the director must be told of all media contacts “even in a personal unofficial role.”“Yes, that's all automatically going to be a violation of the first amendment,” said Louis Clark, executive director of the Government Accountability Project. “You have the freedom of speech. You're working for a public university. If this public university ends up essentially directing you, that you cannot speak publicly about anything related to the job, then that, in and of itself, is a violation of the First Amendment because they're the government and the first amendment is directed at the government.”
What is a FOIA Anyway?
This entire podcast hinges on data that we got, or didn’t get, from public records requests. The ability to request records from public institutions is part of the law, and in theory, should take a few weeks, at best. But after nine months we still hadn’t received some documents.Episode 5 of Why Don’t We Know explores what we found about how open records offices are undervalued and understaffed compared to other major public information offices at universities -- like the media relations offices.“It's low priority in agencies,” says Dave Cuiller, president of the National Freedom of Information Coalition. “I mean, it's not in their best interest to give out information that they don't want out. So it's very convenient to under-staff that office.”We ran into all kinds of tactics that agencies routinely use to keep the public from getting information that should be public: delays, fees, misapplication of the law, and flat-out ghosting -- just ignoring our request entirely.“Fifty-plus years into the Freedom of Information Act ... we are still experiencing agencies that just blow this off, that consider ‘Right To Know’ to be right to N-O. And we're, we're far beyond sugarcoating this,” said Terry Mutchler, a former journalist-turned media law attorney who is now a partner with Dilworth Paxson law firm in Pennsylvania.
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