Access to Public Records and the Role of the News Media in Providing Information About COVID-19

PART III: CONTROLLING AND PROVIDING
INFORMATION IN A PANDEMIC
Access to Public Records and the Role of the News
Media in Providing Information About COVID-19
Adam A. Marshall* & Gunita Singh**
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 199
I. HOW OPEN GOVERNMENT LAWS IN THE UNITED STATES HAVE BEEN
AFFECTED BY THE PANDEMIC . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 201
A. The Federal Freedom of Information Act . . . . . . . . . . . . . . . . 201
B. State and Local Public Records and Open Meetings Laws . . . 203
1. Public Records. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203
2. Open Meetings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
3. Looking Ahead. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 206
II. HIPAA, PUBLIC RECORDS, AND THE NEWS MEDIA DURING COVID-19 207
A. Reporting by the News Media Can “Reasonably Prevent or
Lessen the Threats” Associated with the Pandemic . . . . . . . . . 208
B. Entities Subject to HIPAA’s Privacy Rule Should Afford
Journalists the Ability to Utilize 45 C.F.R. §164.512(j) . . . . . . 210
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212
INTRODUCTION
The response to the COVID-19 pandemic has affected all facets of society in the
United States, but especially the ways in which we work. Reporters and members of
the news media have been confronted with special legal and practical challenges
over the last months, from trying to determine whether they are “essential” and
therefore exempt from mandatory shelter-in-place orders, to covering court proceed-
ings that have moved to phone or video conferencing. Moreover, some of the most
crucial tools reporters use to gather information—public records and open meetings
laws—have also seen signif‌icant and worrying disruptions. These laws, which serve
as vital avenues for ensuring the free f‌low of information about what the government
is doing, have suffered greatly during the course of the public health crisis.
* Adam A. Marshall is a staff attorney at the Reporters Committee for Freedom of the Press (http://
www.rcfp.org/). His work includes litigation for reporters and news organizations in federal and state
courts, writing amicus briefs, and training journalists. © 2020, Adam A. Marshall & Gunita Singh.
** Gunita Singh is the 2019/2020 Jack Nelson/Dow Jones Foundation Legal Fellow at the Reporters
Committee for Freedom of the Press. Her work focuses on open government litigation and providing
information to reporters.
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