Citing shuttered offices, Wolf admin. says it can’t process news outlets’ requests for COVID-19 waivers

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This story was updated at 8:22 pm with additional comment from the Wolf administration.

Gov. Tom Wolf’s administration says shuttered state offices are to blame for its delay in revealing a list of businesses seeking to stay open through the governor’s coronavirus-related shutdown orders.

Last week, the Capital-Star filed an open records request seeking a list of businesses that had applied for waivers from Wolf’s March 19 order that all non-”life-sustaining” businesses close their doors to prevent the spread of COVID-19.

Even though state employees have processed up to 8,442 waivers, Wolf’s Office of General Counsel said in an email Tuesday that it cannot fulfill open records requests until state offices reopen.

Once reopened, the office said it could begin to answer the Capital-Star’s request for a list of all businesses and the status of their applications.

The denial comes as the Wolf administration faces widespread calls from lawmakers, industry groups and the media to provide more transparent and clearly defined standard for which businesses can stay open, and who must close, in its COVID-19 pandemic response.

Wolf’s March 19 order called for swaths of the retail, manufacturing, and entertainment industries, among others, to close or, potentially, face citations and fines from police and other state agencies.

Following widespread critiques, Wolf announced a waiver program to let businesses ask to stay open, as long as they showed their use and proved they could keep their workers safe. The waivers are processed by the Department of Community and Economic Development (DCED).

Wolf indicated Monday that his broad shutdown orders, of both public offices and private businesses, would be in effect until at least April 30. Since March 16, non-essential state employees have been working from home.

In an email, Wolf spokesperson Lyndsey Kensinger said that “the Right-to-Know law deadlines are not determined based upon whether the work is ‘essential,’ rather … they are determined based upon whether offices are open or closed.”

In an email, Erik Arneson, head of the state’s Office of Open Records, said the justification was sound.

“Although agencies may of course be closed more often during the current emergency, that is also the rule in normal times,” Arneson said. “Over the years, we’ve seen numerous cases where some agencies, typically in more rural parts of the state, are open only a day or two each week.”

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In a March 24 email, Casey Smith, spokesperson for DCED, said that because the department’s “current focus is ensuring that businesses are in compliance and that waivers are carefully considered and, therefore, is not identifying individual waiver applications, approvals and denials.” 

“However, businesses are not prohibited from sharing the status of their application,” she added.

As of March 27, the department had processed roughly 34 percent of the 24,877 waiver applicants, according to the investigative news site Spotlight PA.

In an online briefing on March 26, Wolf said that the administration was focused on quickly and consistently turning around waiver applications.

He added that he would be “very happy” to release the list of applicants, but did not want to open the system to “all kinds of pressures that make it work less well.”

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“We’re also trying to do the best thing,” Wolf said. If he could be convinced that releasing the applicants is “in the best interests of doing the right thing, I will do that,” Wolf said.

Spotlight PA reported earlier this week that Wolf Home Products had continued operating its business despite Wolf’s shutdown order. 

The governor once ran the family business, but the firm was acquired by a private equity firm in 2015. Wolf no longer is a shareholder in the company.

Legislative Republicans have been adamant in their demand for more sunshine on the waiver process.

In a March 27 letter to Wolf, House Republican leadership including Speaker Mike Turzai, R-Allegheny, and Majority Leader Bryan Cutler, R-Lancaster, called for the administration to make the “waiver process be completely transparent and standardized.”

“There are too many questions, too much uncertainty, and too much time being lost in the existing waiver process,” the letter read. “We believe if this process were fully transparent we would not see competitors looking to use this as a type of advantage and people would not be speculating as to what the criteria are.”

Open records guru Arneson declined to comment on if the waiver requests were a public record. 

But in a blog post last updated March 30 on the state’s right to know law and the coronavirus, he advised “both requesters and agencies to be considerate and patient while working with each other, especially during the current emergency.”

He urged requesters to not file new requests “unless you have an urgent need to access records.”

And to state agencies, he said: “Please remember that transparency builds trust, especially in times of crisis.”