Covid Catastrophe Part VI: A Duty to Transparency


Covid Catastrophe is a seven part series examining the history of the COVID-19 pandemic, its impact on Maine and what data policymakers used to lock down society and centrally-plan our economy. Check back tomorrow for Part VII.

A primary goal of policymakers during a fast-moving crisis must be an adherence to a high standard of public transparency. When making large-scale unilateral policy changes, state officials must be completely forthright about which metrics and indicators they are using to determine the course of action. This high standard was not always met by the Mills administration. 

Early in the pandemic response, Governor Mills broke the state’s open meeting law by conducting closed-door briefings with selected legislators. Throughout the spring, legislators from both parties complained that they were not being consulted or alerted to the changes being made to the governor’s phased reopening plan, or how the administration was solving the persistent issues with the unemployment system.

Dr. Nirav Shah, having previously noted in his daily briefings that positivity rate is the best metric for measuring the success of the administration’s efforts to contain the virus, only began to release daily tallies of negative test results by the end of May, leaving out over two months of calculating a more granular-level trend line. The public saw the weekly (7-day) positivity rate every Wednesday, but in that crucial time, our understanding about the new virus was changing rapidly, as were the administration’s policies. The administration’s response to repeated questioning on this topic was that there was simply too much data to calculate every day based on the Maine CDC’s staff. In late May, Matthew Gagnon, CEO of Maine Policy Institute, began compiling daily data on a public spreadsheet in order to calculate daily positivity rate based on new daily testing numbers.

Maine was the last state to release town-level data, reporting case data only at the county level until early June. The Mills administration had resisted providing town-level data, arguing that this data could lead to the identification of patients in small towns with low case counts, a violation of the Health Insurance Portability and Accountability Act (HIPAA). This reasoning did not sway those interested in government transparency, especially during a period of concentrated power in the hands of the governor under a Civil State of Emergency. 

Dr. Shah had expressed his hesitancy to release more detailed data because, if it showed case load concentrations in the most densely populated areas, it could engender a false sense of security; leading Mainers to not take the virus seriously. Even supported by this seemingly reasonable rationale, the administration’s obfuscation of data is inexcusable. Epidemiological data accumulated by the CDC is public record to the extent it does not compromise any private, personal information of patients. This is well within the ability, and the duty, of the state to provide to the people, especially in times of crisis.

Sigmund Schutz Clip on Transparency Issues (5/14/20) 

Only on June 3, after a request filed by the Portland Press Herald following weeks of pressure from groups like the Freedom of Information Coalition, did the Maine CDC provide town-level case data. This data was merely cumulative across the previous 10 weeks, not showing active cases, or charting across time. It did not provide any indication of infection trends in each town or within each county. The administration and the CDC provided the bare minimum in this release. 

By early June, the governor made drastic eleventh-hour changes to her reopening plan, such as arbitrarily restricting the reopening of certain restaurants, bars, and personal care services in the four counties outside of the “Rural Reopening” strategy. This change was made only four days before these businesses planned to resume somewhat-regular operations. Maine people were assured that these changes were guided by current data and scientific evidence, without being allowed to see it for themselves.

That week, DHHS Commissioner Jeanne Lambrew responded to a legislator’s question in a briefing on how the administration makes its decisions, noting that “until there is a vaccine or treatment, we will aim to keep case counts low.” To many observers, this was alarming to hear, since the overarching message from state leaders until then was to physically distance and limit personal interactions in order to “flatten the curve” and avoid health care shortages.

Government officials, especially when operating under a state of emergency and substantially expanded executive powers, are bound to a duty of transparency to the public. Even if they are worried about their ability to control the message received by the public, they have consistently said that their actions are supported by epidemiological data and science. People deserve to see the same data on which the administration is using to rationalize large-scale economic shutdown and phased reopening policies.

Policymakers working with a limited understanding of a problem are likely to generate greater unintended consequences. In the interest of maintaining the public’s trust and legitimacy, officials in the future should ensure that full, open data is the first priority.