CASE 0:20-cv-01275-DWF-BRT Document 28 Filed 06/12/20 Page 1 of 10

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Scott W. Johnson,

Plaintiff, Case No. 20-CV-1275 (DWF/BRT)

vs. Declaration of Michael Schommer
Jan Malcolm in her Official and Individual
Capacities; and Michael Schommer in his
Official and Individual Capacities,

Defendants.

Michael Schommer declares the following:

1. I am the Communications Director of the Minnesota Department of Health

(“Department”). I have a Bachelor of Arts in Print Journalism from the University of St.

Thomas and a Master of Arts in Strategic Communication from the University of

Minnesota. I previously worked for the Minnesota Department of Agriculture from

1997–1999 as a Communications Coordinator and from 1999-2013 as the

Communications Director.

2. I serve as part of the Department’s Executive Office Leadership Team. I

am the 2020 President of the National Public Health Information Coalition, which is an

organization of communication staff from state and local public health organizations

across the United States.

3. As part of my duties, I oversee the Department’s Communications Office

and its media relations, social media, videography and website functions. Among other
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things, the Communications Office disseminates important public health information to

the press.

4. The Communications Office occasionally holds media briefings to

communicate with multiple reporters simultaneously. These media briefings often take

the form of news conferences hosted in person at the Department. Other times, the

briefings take the form of media-only telephone calls reporters. Traditionally, these

media briefing conference calls were done on an as-needed basis – rarely more than once

a month – to efficiently get important messages out to reporters.

5. The Communications Office maintains several distribution lists for the

Department’s news releases and other public notifications. The larger news release

distribution list (“large distribution list”) contains reporters who work for media outlets in

the state, but also includes a wide variety of stakeholders, such as the Centers for Disease

Control and staff of other organizations or state agencies wishing to receive the

Department’s news releases. The smaller news release distribution list (“small

distribution list”) is a more focused list of reporters from professional media outlets, and

some important staff members within the Department and Governor Walz’s

administration. For media participants, the criteria the Department has evaluated for

inclusion in the small distribution list has historically been employment by a professional

media outlet affiliated with broadcast, print, or web-based publication, providing daily or

otherwise-regularly scheduled content, with an editorial review process, multiple staff,

and a newsroom.

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6. Prior to the COVID-19 pandemic, there was limited interest in being

included on the small distribution list or participating in the media briefing calls; nor did

these media briefing calls draw much media scrutiny. Occasionally, a reporter would ask

to be included on the list, and the Department would add the reporter if he or she largely

met the historic criteria. Because the Department did not routinely use media briefing

calls prior to COVID, the Department did not often need to make decisions about who

could participate in these calls, and the individuals who asked to participate were

typically members of an established media outlet.

7. Prior to the COVID-19 pandemic, individuals on the small distribution list

received invitations to the Department’s news conferences and media briefing calls. The

reason the Department does not send out invitations to the large distribution list is that

these news conferences and media briefing calls are tools developed for a specific

communications purpose – to reach and interact with a group of professional media

outlets in order to give them information and to accommodate their questions as the time

allows. If the Department opened up its news conferences and media briefing calls to all

of the stakeholders on the large distribution list, the reporters’ ability to ask questions

would be impaired by the large number of non-reporters trying to ask questions or to

make statements. This would make the Department’s media briefings less effective and

less valuable for both the reporters and for the Department. The Department benefits

from major media outlets disseminating public health information to Minnesotans.

8. In late February 2020, information requests from the public and the media

on COVID-19 issues reached a point where the Department decided to schedule media

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briefing calls. The Department is the State’s primary public health agency, and has

substantial responsibilities in organizing the State’s response to COVID-19. After the

first cases of COVID-19 were detected in Minnesota in early March 2020, the

Commissioner began hosting daily weekday media briefing calls. The Communications

Office was receiving up to twenty media inquiries per day at this time, and also found it

was a more efficient use of the Commissioner’s time to devote an hour per day for

answering the media’s questions related to COVID-19. Governor Walz and other

members of his administration were frequent participants.

9. On March 13, the Governor issued an executive order declaring a

peacetime emergency. Due to the infectious nature of COVID-19, and the logistical

challenges of limiting person-to-person contact, the Department holds its media updates

by telephone.

10. Given the unprecedented interest in the COVID-19 media updates, the

Communications Office was forced to further limit access to a group of journalists

smaller than the small distribution list. Rather than having four to six reporters on the

media briefing calls as was typical in the past, the Department’s daily COVID-19 media

briefing calls were attracting dozens of participants whose questions often could not be

accommodated within the time available for each call. The Communications Office

therefore created an even smaller “RSVP” list from the small distribution list for

purposes of the COVID-19 calls.

11. In advance of the media update calls, the Communications Office emails a

notification on the morning of the call. In the email, the Communications Office states

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the topics, speakers, and time of the call, and requests RSVPs via email. Recipients on

the list who are deemed part of the target audience get to participate in the conference

line. Those who RSVP once and successfully receive a confirmation email are then sent

the call-in information every day a call is held so that they do not have to continue

sending RSVP emails. The recipient then calls a dedicated participant conference line,

which is not open to the public.

12. The conference call service rented by the Department for its media briefing

calls provides a moderated service, in which all lines are muted until the caller is ready to

ask a question. Callers who wish to ask a question opt into a queue. After the department

officials complete opening statements on the call, the moderator unmutes the line of each

person in the queue one at a time to allow them to ask a question. After that caller’s

question has been answered, the moderator unmutes the line of the next caller to allow

them to ask their question. The process continues in this manner until the call ends. I

often host the media briefing calls, offering a brief welcome and summary of the call

agenda and then informing the moderator when our opening statements are finished and

we are ready for questions from the media. The moderator facilitates the question portion

of the media briefing calls.

13. This conference line service makes for an orderly and high-value call for

reporters seeking to record soundbites, but it is costly for the Department to operate.

Using this conference call service, the Department is charged not only by the length of

the call, but also by the number of callers. By holding daily media briefing calls

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throughout March, April, and May 2020, the Department has incurred more than $40,000

in charges.

14. As the media briefing calls became more frequent and high profile, the

Communications Office received numerous requests from various parties to join the calls.

Many of the parties making this request were public health partners or other stakeholders

who were not the intended participants for the Department’s media briefing calls. The

Communications Office therefore offered a “listen only” line for these parties at first.

However, as media outlets including MPR and several Twin Cities TV stations began live

streaming the media updates, the Department requested that these individuals watch the

live stream of the updates, as a cost-saving measure.

15. While the Department does its best to accommodate all of the questions

from reporters during the media updates, the time constraints typically mean the media

updates end before all reporters have an opportunity to ask a question.

16. Plaintiff Scott Johnson contacted the Communications Office in April 2020

to request to participate in the media updates. At the time, the Department was still using

the small distribution list and had not yet switched to the even smaller RSVP list.

Johnson presented himself as a blogger for Power Line. The Communications Office has

not typically dealt with bloggers in the past, and at the time of his request,

Communications Office staff were overwhelmed with a large number of COVID-19

interview and information requests. The Communications Office staff added Johnson to

the small distribution list without any significant analysis of whether he actually met the

criteria the Department normally used.

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17. After Johnson was added to the small distribution list in April 2020, and

participated in some media updates, he sent the Department an email on April 27, 2020

concerning community mitigation measures and asking for information regarding

COVID-19 decedent data. In his email, Johnson noted that he had not been able to ask

his questions during the media update. My colleague provided a response on behalf of

the Department.

18. Johnson’s questions were unremarkable. The Department has received

numerous similar questions about its community mitigation measures, as well as requests

for details regarding individuals who have passed away from COVID-19. The questions

he asked were typical of questions the Department has received.

19. During the same period in which it received and answered Johnson’s

questions, the Department began to recognize the need to further restrict access to the

conference line. As part of this process I wanted to speak with other press officials in the

executive branch concerning how they handled telephone media updates where there was

heavy participant interest. As part of these efforts, I forwarded Johnson’s email to staff

in Governor Walz’s Office to provide context for those conversations. I was especially

interested in advice regarding non-traditional media outlets, such as blogs and individuals

like Johnson and Power Line who did not meet the Department’s normal criteria for

inclusion in media briefing calls. I spoke with staff in Governor Walz’s Office and at the

Minnesota Department of Public Safety. These colleagues cautioned against permitting

individuals outside of media outlets with substantial reach from participating in the calls,

because this could increase the number of individuals participating in the calls, and could

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make it more difficult for reporters from our most important constituent news services to

ask questions during the calls. The Department depends on press coverage from these

large media organizations to help disseminate information about COVID-19.

20. Following these consultations with my colleagues, I decided that the best

thing for the Department was to limit access to the calls to reporters from major media

organizations who meet the Department’s long-standing criteria for inclusion on the

small distribution list. I decided that individuals who did not meet these criteria could

listen instead to the streaming options which are widely available to the public. This

process was linked with the creation of the RSVP list, which the Department began using

on April 27.

21. I told the Communications Office staff not to include Johnson in the

distribution list going forward. In addition to not being employed by a media

organization with a substantial staff and local reach, I understood that Power Line

focused on opinion and news commentary, rather than mere reporting of information. I

believed that Power Line would be able to effectively continue its commentary using the

available broadcast feeds. I was also concerned that if the Department allowed Johnson

to participate, then it would be difficult to tell other internet-only news commenters that

that they could not be included on the list.

22. Johnson was not excluded from participating in the media briefing calls

because of the questions he asked the Department. Many of the questions Commissioner

Malcolm and her staff receive during the media briefing calls are difficult and

challenging to answer. The Department understands its responsibility to address such

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questions, and does not penalize reporters for asking tough questions. Participants in the

media briefing calls have not been excluded because they asked tough questions.

23. I told staff in the Communications Office that they did not need to spend

time responding to individuals who complained about not being included on the RSVP

list because staff were so busy fielding dozens of media calls each day; attending

meetings to stay up-to-date to the state’s pandemic response; setting up interviews with

subject matter experts; responding to inquiries from reporters; and preparing materials for

press briefings.

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24. Individuals who do not meet the criteria for inclusion on the small

distribution list have many resources available to them to obtain information about the

Department’s COVID-19 response and the state of the outbreak in Minnesota. These

individuals may call the Department’s public COVID-19 hotline, access the

Department’s or the state’s COVID-19 websites; listen to audio from the streamed media

briefing calls; read the voluminous amount of related media coverage; or review the

Legislature’s briefings that were occurring related to COVID-19. The Communications

Office has turned down requests from other individuals and entities to participate in the

daily media briefing calls.

I declare under penalty of perjury that the forgoing is true and correct.

Executed on June 12, 2020

s/ Michael Schommer
MICHAEL SCHOMMER

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