The Bergen Record’s year of no records

Last October, a grim press release arrived in the inbox of Lindy Washburn, a health reporter for the Bergen Record, in northern New Jersey. The release said that six children had died from an adenovirus outbreak in the Wanaque Center for Nursing and Rehabilitation. Each of the children, some as young as two years old, had been dependent on ventilators to breathe; some of them were prone to seizures. “They were really medically complex kids,” Washburn said. By the end of 2018, eleven children had died from the virus and thirty-six more had become sick.

The New Jersey Department of Health announced the news as an unavoidable tragedy. At the Record, the reporting team assigned to the story—Washburn and Scott Fallon, an environment reporter—wanted to know how the state had dealt with the situation. “The state was responsible on two ends, both as the payer for the care and as the inspector for it,” Washburn said. “There needs to be light shed in the middle of that relationship.” There may have been a third form of responsibility, Fallon added: “Some of these children may not have had families with guardians, and the state may have been their guardian as well. We don’t know.”

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The reporting team began to file public-record requests with the state health department. First, Washburn sought communications between the department and Wanaque Center personnel. “We didn’t know exactly what they had said, and we didn’t know exactly who got the call and how it worked its way up the chain of command and what the department did,” Washburn said. “You can’t really judge whether they’d done the right thing if you don’t know what they did.”

But the state denied her request, citing an ongoing investigation. So Washburn filed a second, similar request directly to the office of the health department’s commissioner. The state denied most of that request—sending only press clippings and unhelpful redacted materials—this time because her wording was “overbroad and nonspecific.” In late October, as the virus continued to spread, Shereef Elnahal, then the state’s health commissioner, wrote an editorial for the Record defending the department’s decision not to release information that might “allow the public to triangulate the identities of patients.” He chided the paper for its persistence in seeking records, saying that Record reporters should respect the privacy of families of the deceased. To “receive questions from the public about your loved one’s situation, because enough details were available to identify your family,” he wrote, “would be unfathomable.”

“That infuriated me,” Fallon said. Reporting on tragedy, said Fallon, who covered 9/11, is the daily work of many journalists. “We know how to do this,” he went on. “We know the right way to do it and the wrong way to do it. We’re professionals.”

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Earlier that month, a state senate hearing helped Washburn and Fallon piece together a timeline of events. But by December, they still hadn’t received any records, and the Record decided to sue the New Jersey Department of Health for violating the Open Public Records Act, known as OPRA. 

Donna Leusner, a Department of Health spokesperson, said that her office “endeavors to be as transparent as possible,” citing press conferences, news releases, and a website of adenovirus resources as evidence. She declined to comment on the extended back-and-forth over the Wanaque Center beyond the arguments Elnahal made in his editorial. After the suit was filed, the Department of Health began sending the Record hundreds of pages of documents, at a slow drip—most of them unusable to the reporters. Some were press clippings, talking points, and other media-related documents; other pages were almost fully blacked out.

“They were going beyond blotting out the name of the person to encompass a lot of the information that was relevant to an accountability investigation, and that didn’t have anything to do with patient privacy,” Washburn said. Through lawyers, the state argued, “a tremendous amount of communication between the parties has occurred in a good-faith attempt to resolve this matter.”

“I think that they just kept hoping that we wouldn’t push for more,” CJ Griffin, the Record’s lawyer, said. She negotiated—“you never want to look like you’re not being cooperative,” she explained—hoping that the department might eventually send documents with fewer redactions. But in its correspondence, the state consistently argued that many of the requested records were exempt from OPRA because they were “deliberative,” meaning that they showed government employees discussing policy proposals or otherwise trying to reach a decision. (A law bars the release of material revealing how officials make policy.) Griffin, however, believes that these records involved policy-implementing––not policymaking—and that journalists should be entitled to them.

Recently, almost a year after the suit was filed, Griffin lost patience. She has handled a lot of freedom-of-information cases, and said, “I don’t know that I’ve had many where it’s been a year, basically, between the time we filed the case and the time the hearing is.” A hearing is now set for late December, when the judge will consider making any records public. Griffin predicts a decision won’t come until January or February. 

The grieving parents are hoping the Record wins its case. “My clients, they are all wanting to get the truth,” Paul da Costa, a lawyer representing some of the children’s families, said. “And ultimately the Department of Health has information that may not be readily disclosed by the Wanaque Center.” The Record’s lawsuit, then, “may be the only means by which my clients can get that factual information and evidence.”

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Savannah Jacobson is a contributor to CJR and a reporter and writer based in New York.