Bucks County's year-old COVID policy fuels open records lawsuits

Editor's note: this story has been updated to remove a podcast incorrectly attributed to Brock and Walker.

Bucks County is challenging the open records appeals won by two residents seeking documents related to COVID-19 recommendations made last year.

Jamie Walker, of Chalfont, and Megan Brock, of Northampton, told a crowd of nearly 40 supporters during a news conference outside the county’s administration building in Doylestown that the county is trying to hide emails by forcing the two into a potentially costly legal battle with their own county government.

“(The county) decided that instead of giving me those records, it was more efficient for them for me to hire an attorney, use my money, to take me to common pleas court and fight to get the records that I already won … that is what they decided to do with your money,” Walker said Wednesday.

“What do these records contain that they don’t want the public to see? How many thousands of dollars is the county wasting suing me and Jamie to avoid transparency and why are they so afraid of transparency?” Brock added.

The two filed a total of five Right to Know Law requests between February and March seeking various communications involving the three county commissioners, certain employees and the state Department of Health.

Brock and Walker have been outspoken opponents to changes the county made in its coronavirus recommendations for school districts last August, and the transparency around how those decisions were made, as cases spiked due to the omicron variant.

County Health Department Director Dr. David Damsker had been advising school districts start that school year by not requiring masks and opening to in-person education, but that guidance also came as coronavirus cases had been plummeting to some of the lowest numbers seen since the pandemic first hit the county in March 2020.

Parents across the county began asking the county to develop new blanket guidelines for districts as cases began climbing at the end of July and into August. A call involving Damsker and local hospital administrators led to guidelines recommending masks be required in schools. Most followed the mask guidelines.

About a week before school began for most district on Aug. 30, former Acting Health Secretary Alison Beam sent a letter to the county critical of some portion of its guidelines she said did not conform to state and federal recommendations and urged the county to update its document.

The Aug. 23 guidelines from the county to the school districts effectively recommended schools follow Centers for Disease Control and Prevention guidelines into the new school year. A statewide masking order soon after made much of the discussion a moot point until it was overturned in December.

For parents who had been pushing against pandemic mitigations in schools, like Brock and Walker, the August changes seemed suspicious and theories of corruption and undue political influence permeated public comment sessions in school board and county meetings for months afterward. They questioned whether Damsker, a medical doctor, or the elected commissioners, were directing the county's recommendations.

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County Solicitor Joe Khan said during Wednesday’s commissioners meeting, held after Brock and Walker's news conference and where supporters asked questions of county officials, that the volume of Right to Know requests has “skyrocketed” in the past two years. He said a significant portion of those requests, and subsequent appeals, over the past several months involved Brock, Walker and another unnamed person.

Commissioner Chairman Bob Harvie said the appeals the county is currently involved in with the two area mothers is a continued effort to dig up evidence in support of an untrue conspiracy theory.

“The problem with those people who want to engage in conspiracy theories is that they box themselves in so that there’s no answer they’ll get which will satisfy them because if they don’t get the answer they’re looking for it’s just more proof of the conspiracy,” Harvie said.

Brock and Walker say they are fighting for their First Amendment rights against a government that would rather bully them into silence.

What do the court documents say?

Regarding the cases on appeal in the Bucks County Court of Common Pleas, both Walker and Brock’s requests generally cover records between August and September of last year.

Brock filed three requests in February and March for “electronic correspondence” and other communication records involving the commissioners and county employees related to the county’s changing pandemic guidance.

The county partially denied the requests on the grounds that some records included information exempt from disclosure under the law, such as draft legislation and attorney-client discussions.

The county did include at least several emails and documents, redacting personal information where required by law.

Brock appealed the response, arguing the county withheld documents without providing a redaction log, and the Office of Open Records agreed that the county had not proven the documents were withheld appropriately.

The OOR also found that the county had not proven that no other records existed. However, it said there was no proof that the county had acted in bad faith, an allegation Brock asserted in her appeals.

The determination meant the county was required to go back through its records again, however, the county challenged the determinations in the county courts.

The court documents show the county also argues that Brock’s requests were specific to the “buckscounty.gov” domain which “does not host the county’s email” and “is used as the platform for the county’s website.”

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Walker’s requests are unique in this case because she instead focused on one email address for Commissioner Diane Marseglia between August and September, but did not include a specific topic in her request.

The county denied the appeal on the grounds that it was too broad and needed to be narrowed in order for the county to comply.

An initial review of the potentially responsive documents found several thousand emails over the two-month span in each of Walker’s requests, nearly 10,000 pages per request.

Walker appealed those denials and the OOR said the requests were narrow enough to not be considered overly broad. The OOR found that the request was specific enough because each request focused on a relatively small time frame of one month and were limited to a single email address.

“The request was narrow enough to not need a specific subject matter, the scope of the documents is not burdensome, and the timeframe is short. Therefore, the request is sufficiently specific,” the OOR’s determination states.

Marseglia said Wednesday that she regularly gets hundreds of emails a day, many from constituents seeking help for sensitive personal issues.

“I get hundreds of emails a day … but probably 70% of them are from people asking for assistance with a child who needs drug and alcohol help or someone who has a mental health crisis that they’re in,” Marseglia said.

The county argued in its appeals to the county courts that the volume of records at issue would take extensive time and effort to review, adding that the OOR erred in its determination on specificity.

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Pennsylvania NewsMedia Association attorney Melissa Melewsky said the county’s argument about the number of records isn’t a good defense.

“There have been cases where agencies had to produce literally millions of pages of electronic records. In those cases, the court has said they can request extra time from the Office of Open Records to comply with a voluminous request, but it doesn’t make the records nonpublic, and it doesn’t excuse the agency from providing them,” Melewsky said Wednesday.

Regardless of the motives or the size of the request, Melewsky said the state’s open records laws are clear: Agencies are required to provide records in their possession.

Do Bucks' commissioners use 'double secret' emails?

There were multiple references during Wednesday’s news conference and by several county residents during the commissioners' meeting that Walker’s requests uncovered a “double secret email address” that Marseglia was using.

Walker said that she filed the request at issue in the courts after Marseglia seemed to reference another email address apart from one posted on the county’s website at some previous time.

When Walker reviewed documents obtained in past records requests, she said the email appeared in some of those records.

It appeared to Walker that a government official had a secret email address that was potentially kept hidden from the public and might reveal additional documents that might reveal some untoward actions by the county or the state government.

Rich Walker, Jamie Walker’s husband, scoffed at the idea that the one email address could contain several thousand emails and tens of thousands of pages of records, a seemingly suspicious number of documents.

Harvie said during the meeting that every one of the commissioners and most, if not all employees have two email addresses.

This news organization reached out to communications departments in Montgomery and Delaware counties and were told that was a common practice for them as well.

Melewsky said there’s nothing outright nefarious about having two email addresses, in fact they can often act as a useful filter for correspondence with public officials.

The key issue, however, is that both email addresses are subject to the same open records rules, Melewsky added.

Critics claim records requests are politically motivated

Some residents at Wednesday’s public meeting chided Brock, Walker and their supporters over the requests, criticizing the group for what appeared to them to be a politically motivated fight.

Walker and Brock were adamant that the issue is not political for them, describing themselves as two soccer moms exercising their First Amendment rights.

The two did agree with one of their supporters’ suggestions during the news conference that people call their state officials to weigh in on the court case.

While they are adamant that the issue is both apolitical and bipartisan, Brock and Walker aren’t entirely divorced from politics.

Brock is a Republican committee candidate in Northampton after securing the nomination in the May 17 primary.

Politics even permeates the crowdfunding the two are involved in for another open records dispute Brock filed in Montgomery County.

A webpage on Spotfund.com, authored by a user using Walker’s name, mentions a similar open records request in Montgomery County, which is currently on appeal at the Commonwealth Court.

In a section of the page describing “why bother” fighting the appeals, it states that the records will “undeniably” contain “massive amounts” of damaging information for “Montgomery County Democrats.”

“We know this because of two main reasons. 1) We have secured tens of thousands of records from other government agencies which indicate gross violations of law exclusively by Democrat elected and unelected officials in State and County Governement. (sic) 2) The extreme degree to which Montgomery County is trying to hide these RTK records implies the severe impact upon their release.

"We believe that the implications of these emails will go much further than Montgomery County and Val Arkoosh. We believe they also implicate the Wolf Administration in particular Josh Shapiro,” the website adds.

There are currently no set hearing dates for either of the appeals in the Bucks County courts as of Friday.

This article originally appeared on Bucks County Courier Times: COVID policy at heart of open records legal fight in Bucks County