By Glenn Rolfe

SELBYVILLE — A married mother of two schoolchildren who challenged Gov. John Carney’s statewide student mask mandate during Indian River School District’s August school board meeting is not happy her FOIA request for documented data substantiating the state’s order has not been fulfilled.

“It is a very tangled web,” said Molli Carter of Selbyville. “It has frustrated me, and I spent lot of time researching it.”
Ms. Carter requested by email Aug. 25 the COVID case count by district for each week from Aug. 15, 2020 through Aug. 25, 2021 — data she said was removed from the public website with no summer data presented “despite robust summer schools being in place.”

She was seeking the number of staff and number of students each week.

“I wanted all of last school year up through now, because that should be what the mask mandate was based on — historical data from last year and then going through the summer,” said Ms. Carter.

In a Sept. 3 email, the Department of Health and Social Services informed Ms. Carter that “DHSS is unable to produce the records you requested under FOIA as the information is not maintained by DHSS in a readily accessible format that can be accessed without writing a program or creating a new document.”

“Under the FOIA law, agencies are not required to create a new report/document to satisfy a specific request. The data presented on our school dashboard is electronically coded to be transferred directly from our epidemiology database,” said Division of Public Health/DHSS spokeswoman Mary Fennimore. “When members of the public are seeking specific public health data, particularly historical data over a period of time, they are typically advised to submit a data request through our limited data request process. This ensures that the data can be located, reviewed and meets standards for protecting patient privacy before release.”

DHSS’s response cited an Attorney General opinion finding “that FOIA does not require an agency to develop a program or create a new record to comply with a FOIA request.”

DHSS’s email response did inform Ms. Carter that because information she is seeking is health data, she could submit a data request to the Division of Public Health through an online link.

“To date, we have not received a request from the individual through that process,” Ms. Fennimore said.

Ms. Carter said she attempted that route — https://www.dhss.delaware.gov/dhss/dph/drpprocess2.html — but had no luck.

“The page they directed me to took me back to a FOIA request,” Ms. Carter said. “When you click either ‘yes or no’ the file is corrupt on my end. My sister got it to open when clicking yes and she got an 18-page document about human subject study, which is not what I am requesting. I am not asking for identifiers, so ‘no’ is needed — but corrupt, which leads me back to FOIA.”

On Friday, she gained access to the website, which she said “is for someone completing a project and needing public health data. I am not completing a project or study, and I will not lie and say that I am. I will also not be bound by the user agreements on this form,” Ms. Carter said. “This is completely not what I am asking for.”

Initially, Ms. Carter submitted a FOIA request to the Indian River School District.

“Indian River was fabulous,” said Ms. Carter. “I was curious. I knew my kids’ friends had been there all summer and unmasked. I thought, this is weird. As moms we would have been talking like, “Oh my God they are being sent home all the time.’

“My biggest thing with the masks is it is a loss of local control. That was going to be my local control; I go to my school district to get the data. So if this is a statewide mandate, we must have statewide data. I basically replicated the same FOIA, sending it first to DOE.”

Her FOIA request to DOE was transferred to the Division of Public Health, which oversees the Department of Health and Social Services.

“She (Ms. Carter) requested data that is DPH’s, not DOE’s,” said DOE spokeswoman Alison May. “Per the state’s FOIA law when someone requests records that belong to a different executive branch agency, I connected her (the same afternoon) with DPH.”

Ms. Carter, whose two children who attend Phillip Showell Elementary and Selbyville Middle School, said she followed the school dashboard with COVID-related data which disappeared from the DHSS My Healthy Community online site over the summer.

Ms. Fennimore said the school dashboard was removed from My Healthy Community during the summer for the following reasons:

• Because a goal of the dashboard was to determine whether in-person contagious cases was increasing over time, data collected during the summer would not be comparable to earlier time periods because there were so many less in-person students,

• the percentage of in-person students who were in-person contagious cases could not be calculated because during the summer, schools were not reporting the number of in-person students,

• due to the limitation of in-person students to only schools conducting in-person summer school, the occurrence of in-person contagious cases was predicted to be significantly lower than during the school year.

The school dashboard will return to the MHC (My Healthy Community) data portal for the new school year and is expected to be live next week, Ms. Fennimore said.

IRSD board member Jim Fritz, in a Sept. 4 email to Delaware Department of Education Sec. Dr. Susan Bunting and Delaware Division of Public Health Director Dr. Karryl Rattay, asked: “So is the State and your offices admitting you’re making public health decisions without proper data to back it up? Your reply is appreciated.”

Ms. Carter said she is having a hard time believing that the state does not have the data available.

“It’s scary if they don’t have it as a document and that it wasn’t front and center when they made this decision. In education we always say, ‘data driven decision making,’” said Ms. Carter. “If they can’t readily produce it, maybe I guess it wasn’t based on data at all. Especially if they are declaring a public health emergency. That is what the declaration of the governor is, this is a public health emergency. But it’s only a public health emergency and the only mandates we’ve put in place is in the schools. That should be the catalyst of the emergency. That should be where we saw all these numbers going crazy for staff, for kids – they don’t have it. That is really perplexing to me.”

At the Aug. 23 IRSD school board meeting, Ms. Carter was among numerous parents who spoke out in opposition to Gov. Carney’s mid-August order mandating all students in K-12 schools and childcare centers wear masks regardless of COVID-19 vaccination status.

Ms. Carter believes state can’t have it both ways.

“And finally, their narrative has been backed into a corner. They can’t have everybody petrified by numbers but tell people your kids are OK in school. Our national administration knows kids have to get back in school.”

She is weighing her options, possibly legal action.

“For my kids who don’t want to go back to school because of all this, as a mom I can’t keep doing that. I am going to push them on it. I want this data,” she said.