'Bad faith': Hiding records on politicized COVID school reopening earns county maximum penalty

Nearly four years after then-Pennsylvania Gov. Tom Wolf's administration leaned on Bucks County, north of Philadelphia, to overrule its own health director's COVID-19 school reopening guidance and impose much stricter conditions, an appeals court has upheld punishing the county for withholding records that could identify who exactly changed the guidance.

The Commonwealth Court of Pennsylvania affirmed the maximum penalty under the Right to Know Law against Bucks County on Thursday for "bad faith denial of public records" to Megan Brock, a self-described "normie mom"-turned-investigative reporter.

More than two years earlier, the Court of Common Pleas found the county withheld documents that "clearly existed, fell within the RTK Requests at issue and were not protected from disclosure by any exemption under the RTKL," imposing a $3,000 penalty. 

It's the third-straight loss for Bucks County, with the Office of Open Records first finding in May 2022 it wrongly redacted work email addresses "held out to the public" and didn't show the records qualified for "pre-decisional deliberation," attorney-client privilege or draft exemptions, but the office declined to find sanctionable bad faith out of deference to courts.

"Instead of complying, they sued me 5 times to overturn the appeal," Brock wrote in a lengthy X thread Thursday night on her victory. "While the county had an entire legal department at their disposal to fight me, I was going to have to represent myself, spend thousands in legal fees or give up" until conservative powerhouse Judicial Watch stepped in.

Brock noted that Democratic county Commissioner Diane Marseglia admitted blocking her phone number from a constituent-comment line but claimed it was accidental that Brock was blocked from all county government lines for 18 months. 

After Marseglia justified the blocking for Brock's "extensive verbal abuse" on that line, Brock filed another RTK request for her lone contact to Marseglia, a voicemail she played at a public meeting with the commissioner.

"I’ll be waiting for the check!" Brock wrote, tagging Bucks County, explaining the case history and Marseglia's notoriety for apparently violating a state supreme court order in the 2024 election, and thanking her lawyers and RTK expert Chadwick Schnee.

Fellow public-records crusader Nicole Solas, meanwhile, is still waiting for Seattle Public Schools to provide emails "about students sending hate mail to Moms for Liberty" 20 months after requesting them, Solas wrote on X Wednesday.

Better known as a bee in the bonnet of the Rhode Island political and educational establishment for her endless Access to Public Records Act requests, Solas posted her latest correspondence with the Seattle district, saying it inexplicably put another 50 requests ahead of hers after first telling Solas she was 350 requests back. 

'Targeted temporary mitigation' threatens lives?

The initial Aug. 15, 2021, guidance from Bucks Health Director David Damsker, which prompted a hit piece by NPR affiliate WHYY, emphasized COVID cases were low among the county's "school-aged children" and that serious COVID illness in kids is "very rare," while COVID mitigation has harmed their learning, mental health and social abilities.

The guidance recommended against masking in school except for "targeted temporary mitigation" or keeping kids out of school unless they have fever or "multiple symptoms," perhaps requiring them to wear a mask while symptomatic. The guidance recommends school districts "consider mandating" vaccination for employees but not students.

Damsker issued updated guidance two days later after consulting with local hospitals, now recommending a mask mandate to start the school year but no other changes, according to a National Review profile of the public records fight by Brock and fellow requester Jamie Walker after the county filed two suits against each of them.

Local Democratic Party leaders demanded commissioners Marseglia and Bob Harvie, who is now running for Congress, "relieve [Damsker] of his duties" for "sowing discord" and endangering lives on Aug. 20.

The county succumbed three days later when Democratic Gov. Wolf's acting Health Secretary Alison Beam pressed the commissioners to overrule Damsker's "alarming" guidance and follow state and federal guidance, including masking for "student athletes who weren’t fully vaccinated; longer quarantines; and enhanced testing and reporting requirements," NR said.

Walker told Levittown Now she and her husband had spent $25,000 to $30,000 on RTK requests in just nine months to find out who wrote the Aug. 23 guidance, and Brock told the news outlet they were looking for legal groups to fund their public records fight.

County's argument 'strains credulity'

The Commonwealth Court's July 17 ruling portrays the county's RTK response as woefully inadequate.

The county initially responded to the requests by reciting three exceptions "and a bald assertion of attorney-client privilege," with "no explanation of which exception or exceptions applied to any specific documents," and when it released some records it didn't explain the basis for redactions "or why it redacted information readily available on the County’s website," the ruling said.

It made a similarly lazy effort when appealing to the OOR, failing to "produce evidence that any of the withheld records comprised privileged communications between the County and its solicitor," explain why it left out documents it produced in earlier Brock requests or even include those documents for the Common Pleas court's own in-chambers review.

The county is wrong that the RTK law "restricts sanctions to only the most extreme cases of bad-faith conduct" or that the court's case law "requires a showing of deliberate, intentional, or willful conduct," when it literally excludes "the mental state of the actor" as a relevant factor in considering bad faith, the opinion says.

Bucks County waited until its appeal from the Common Pleas court to claim that it didn't include records it had given Brock in previous requests because it didn't think it had to, and its motion to supplement the record didn't mention its "intent to provide evidence supporting the claim only now being made," so this argument "strains credulity," the appeals court said.

"The County had an opportunity to introduce new evidence before the OOR and chose not to take advantage of that opportunity," and the trial court has no "obligation" to "expand the record," the opinion says.