Sunshine Is Still the Best Disinfectant: How the Cornell First Amendment Clinic and the New York Times Fought to Access COVID-19 Demographic Data

(Source)

As the coronavirus pandemic began to sweep through the United States in the spring of 2020, outbreaks in cities with significant Black and Latino communities led some to question whether communities of color might be at a heightened risk of both infection and death from COVID-19. As the Congressional Black Caucus (CBC) stated in its April 2020 letter to the Director of the Centers for Disease Control and Prevention (CDC), Dr. Robert M. Redfield, “[c]ommunities of color continue to disproportionately suffer health inequities due to the history of racism and oppression in the United States,” making these communities particularly vulnerable to COVID-19. At the time, state public health departments had begun releasing data confirming these suspicions. Data from Wisconsin, for example, showed that in Milwaukee County, African Americans accounted for almost half of the county’s coronavirus cases and 81% of deaths, despite making up only 26% of the county’s population.

This data provided only a partial picture of the outbreak, however, and critics argued that relying on states to release demographic data and the lack of publicly available national demographic data would continue to hamper efforts to develop a robust public health response in low-income communities and communities of color across the United States. A letter to the Department of Health and Human Services (HHS) from Senators Elizabeth Warren, Cory Booker, and Kamala Harris, as well as Representatives Ayanna Pressley and Robin Kelly, warned that “[t]his lack of information will exacerbate existing health disparities and result in the loss of lives in vulnerable communities.” Despite this fierce criticism, the CDC did not release the demographic data that it had been collecting throughout the spring.

It was not until July 5, when the New York Times published what it called “the most comprehensive look to date on nearly 1.5 million coronavirus patients,” that this data was made available to the public. This data and the Times’ reporting confirmed what the earlier state data had hinted at: throughout the country and across all age groups, Black and Latino people have been disproportionately affected by the pandemic.

What the Data Said

The CDC data published by the New York Times contains 1.45 million case reports. However, only 640,000 of those reports included the race, ethnicity, and home county of the patient. Still, this data allowed the New York Times to measure disparities across 974 counties, accounting for approximately 55% of the population of the United States. The data showed that Black and Latino people were three times as likely to contract the virus as white people and twice as likely to die. Moreover, the Times also found pockets of disparity involving Native Americans. In Maricopa County, Arizona, for example, the prevalence of COVID-19 among Native Americans, 43/10,000, was over three times that among whites, 12/10,000.

These disparities were consistent across geographies. Urban, suburban, and rural counties all showed similar disparities. Among the 249 counties with at least 5,000 Black residents, the infection rate for Black residents was higher than the rate for whites in all but fourteen counties. Similarly, among the 206 counties with at least 5,000 Latino residents, 178 of those counties had higher infection rates for Latinos than whites. For instance, in nearby Onondaga County, New York the prevalence of COVID-19 was 61/10,000 for Black residents, and only 20/10,000 for white residents.

Because the virus is far more prevalent among older Americans, who are disproportionately white, the disparity was even more extreme when compared within age groups. For example, Latino people between the ages of forty and fifty-nine were infected at five times the rate of white people in the same age group. Of Latino people who died, more than a quarter were under sixty, compared with only 6% of whites.

These disparities appear to confirm the concerns of the CBC and others, that “the history of structural racism, income inequality, and lack of resources in communities of color make these communities especially vulnerable to COVID-19.”

The Cornell First Amendment Clinic’s Role

The FOIA Request

The New York Times, with the assistance of the Cornell First Amendment Clinic, was able to obtain this data under the Freedom of Information Act (FOIA).The Supreme Court has described the purpose of FOIA as to create “a general philosophy of full agency disclosure.” In order to do so, the law requires federal agencies to, subject to certain exemptions, make records that have not yet been made public “promptly available to any person” upon request. Such requests are an essential tool for journalists like those at the Times who “file requests every day in search of documents ranging from emails sent by top bureaucrats to records about Taser use in a particular police department.” Each government agency is responsible for establishing rules regarding how and where the public can make records requests, as well as regulations addressing fees and expedited processing. The statute requires agencies to make a determination as to whether or not to provide expedited processing and to notify the requester of their decision within 10 days. Under the HHS Regulations, expedited processing is available when the agency determines that either (1) a failure to obtain requested records on an expedited basis could reasonably be expected to pose an imminent threat to the life or physical safety of an individual or (2) in the case of requests made by “a person primarily engaged in disseminating information to the public,” there is an urgent need to inform the public about an actual or alleged Federal Government activity.

As a news organization seeking to report on the potential racial inequalities in COVID-19 treatment and health outcomes, the Clinic and the Times argued that it met this second requirement. That is, as the pandemic continued to unfold, there was an urgent demand to inform the public about the relationship between certain demographic traits and COVID-19 cases, treatment, and outcomes. Disclosure of this information was critical to permit the public to better understand the risks that COVID-19 poses and to determine whether healthcare providers were providing treatment equitably. Given the apparently heightened vulnerability of low-income communities and communities of color, transparency regarding the connections between race and ethnicity and COVID-19 was clearly “a matter of exigency to the American public.”  As the CBC noted, without this data, the public would “not be able to accurately identify the threat among the most vulnerable populations, nor find solutions to address associated health inequities.”

Although the CDC granted the Times’ request for expedited processing, it stated that “due to the volume of information requested, the CDC ‘reasonably anticipated’” that processing would not be complete until October 18, 2020.[i] A series of phone calls between counsel for the Times and the CDC ended with a voicemail message on May 7, 2020 stating that the CDC planned to send a final response letter “today or tomorrow.”[ii]

The Complaint

After receiving that message, and with no further contact from the CDC, the Times filed a complaint in the Southern District of New York on May 13, 2020. The complaint alleged that both the Department of Health and Human Services (HHS) and the CDC failed to meet the statutory deadlines set by FOIA and that HHS, and, as a result, the Times was deemed to have exhausted its administrative remedies. The Times also alleged that HHS and the CDC had “no lawful basis” for declining to release the requested records, and that the Times was thus entitled to an order compelling the CDC to produce the records responsive to its request.[iii]

In June 2020, the CDC produced the records sought by the Times and the parties agreed to dismiss the action.[iv] While obtaining these records allowed journalists at the Times to make this important information public, getting the records that they were entitled to was no easy task. Unfortunately, journalists regularly face these types of hurdles when reporting on important stories involving the government. Worse still, not every news organization has the resources to take a reluctant government agency to court.

Conclusion

Accurate information is critically important in the fight against COVID-19. In the early days of the pandemic, a Lancet editorial warned that “[h]ow key information is relayed to the public during the next phase of the epidemic is critical.” Noting the “ease through which inaccuracies and conspiracies can be repeated and perpetuated via social media and conventional outlets,” the editorial emphasized that “the rapid dissemination of trustworthy information” is “needed most during this period of uncertainty.” Until the New York Times sought the CDC’s records, the Trump Administration had failed to live up to this responsibility. As the Trump administration continues to politicize COVID-19 data, tools like FOIA will continue to play a critical role in ensuring that the public has the information it needs to understand the pandemic and to navigate what The World Health Organization Director General has called the “infodemic” of misinformation surrounding the disease. Fortunately, lawyers and journalists continue to use tools like FOIA to enhance government transparency. While not every news organization has the same resources at the Times, legal clinics around the country, like the Cornell First Amendment Clinic, are working hard to assist media outlets big or small in accessing information that should be available to the public.

[i] Complaint at ¶ 21, New York Times Co. v. Dep’t of Health & Human Servs., No. 20-CV-3704 (S.D.N.Y., May 13, 2020) [hereinafter “NYT Complaint”].

[ii] Id. at ¶ 26.

[iii] NYT Complaint at ¶¶ 29–31.

[iv] Stipulation & Order of Dismissal, New York Times Co. v. Dep’t of Health and Human Servs., No. 20-CV-3704 (S.D.N.Y. July 23, 2020).

About the Author: Robert Ward is a 3L at Cornell Law School. He currently serves as a Notes Editor on the Cornell Law Review and is a member of the Cornell First Amendment Clinic. His interests include tax law, energy law, and First Amendment law.

Suggested Citation: Robert Ward, Sunshine Is Still the Best Disinfectant: How the Cornell First Amendment Clinic and the New York Times Fought to Access COVID-19 Demographic Data, Cornell J.L. & Pub. Pol’y: The Issue Spotter (Sept. 18, 2020), https://live-journal-of-law-and-public-policy.pantheonsite.io/sunshine-is-still-the-best-disinfectant-how-the-cornell-first-amendment-clinic-and-the-new-york-times-fought-to-access-covid-19-demographic-data/.