As state, federal, and local governments have ramped up an unprecedented response to the coronavirus — issuing executive decrees, taking emergency actions, and spending millions in taxpayer dollars to curb the virus’ spread — many of the offices that enable citizens to scrutinize that activity are grinding to a halt.
The pandemic that has transformed life in America is also stymieing public records requests from City Hall to Washington — raising concerns among open-government advocates who say it could enable agencies to skirt transparency laws and operate in the dark.
“Agencies need to prioritize their efforts so the main focus is on the coronavirus. Everyone gets that,” said Erik Arneson, executive director of the Pennsylvania Office of Open Records. “But you can’t do that stuff in secret and expect the public to have any confidence in your actions.… You don’t want people to be suspicious in times like this. If you can eliminate suspicion, that’s a good thing.”
Private citizens, journalists, lawyers, advocates and others use such document requests to monitor how government is operating and what it’s doing with tax dollars in the public’s name.
Philadelphia sent notices last week that the city is “suspending the deadlines of all pending and incoming Right-to-Know requests until normal operations resume.”
In New Jersey, Gov. Phil Murphy signed legislation on Friday that eliminates deadlines for records custodians to approve or deny requests. When asked about the impact of his decision, Murphy said it was necessary because the state is dealing with a staffing shortfall due to the coronavirus pandemic and is navigating challenges of staff increasingly working from home.
“We’re at war,” Murphy said. “We just have to deal with the reality of manpower, the ability to turn things around.”
Adam Marshall, a litigation attorney with the Reporters Committee for Freedom of the Press, said his group has seen more extreme changes elsewhere when it comes to fielding people’s requests for public records.
“In California, there are some cities that are basically saying they’re not even going to count your request as having been received until after this all blows over," he said.
Wide swaths of the federal government have either temporarily shut down their offices designated to handle Freedom of Information Act requests, or limited their operations in confusing — and sometimes contradictory — ways.
The FBI, for example, said last week it would no longer accept electronically submitted requests for public records pertaining to the bureau’s operations, including high-profile federal investigations, and directed people to submit written FOIA requests via the mail.
The Centers for Disease Control and Prevention, meanwhile, said it was suspending acceptance of any physically submitted FOIA requests and directed people to send them in only online.
Other executive branch offices with a significant role to play in the federal response to the growing pandemic, including the State Department and U.S. Immigration and Customs Enforcement, have either suspended FOIA operations until further notice or warned of significant processing delays.
“There is an especially heightened public interest in that information getting out,” said Marshall, referring to information about the pandemic. “Hopefully, this information is made available and people don’t have to submit public records requests.”
Pennsylvania’s Office of Open Records, whose 20 employees are working remotely, updated an advisory this week asking requesters not to submit new Right-to-Know requests to government agencies in the state unless it is urgent. Appeals of denials are proceeding more slowly or have been temporarily suspended.
Arneson, the office’s executive director, said there is nothing in the books to dictate how records requests should be handled in this situation.
“Nothing that would really relate to a pandemic,” he said. “No case law at all."
Still, Arneson said, his office is reminding agencies that transparency builds trust. He is encouraging them to process requests as best as they can, especially requests related to the coronavirus.
The importance of transparency laws — especially during this period of unprecedented government response — made itself clear just days into the U.S. handling of the crisis.
Negotiations over the $2 trillion coronavirus economic package stalled out earlier this week in part over Democratic concerns about the limited scrutiny proposed for a massive business loan program at the heart of the bill.
Asked Monday who would perform oversight of the program, President Donald Trump told reporters: “I’ll be the oversight.”
But in negotiations Tuesday, the White House acceded to demands from Democratic leaders for an independent inspector general and an oversight board to review lending decisions — a setup similar to the one created during the 2008 financial crisis as part of President George W. Bush’s $700 Troubled Asset Relief Program. Those overseers uncovered several instances of fraud involving companies that sought to obtain taxpayer money through stimulus programs.
Transparency laws also came into play last week, when legally required financial disclosure forms revealed that four U.S. senators, including Richard Burr (R., N.C.), had sold off significant shares of stock in the weeks before coronavirus-related market crashes.
As head of the Senate intelligence committee, Burr was receiving daily briefings of nonpublic coronavirus information during the period last month in which Trump was routinely minimizing the risks the disease posed to the U.S. and its economy.
Burr unloaded hundreds of thousands of dollars in stock, including in such companies as Wyndham Hotels & Resorts and hotel chain Extended Stay America. In the week after his sales, those stock holdings lost between a third to half of their value.
Those transactions were made public only because of laws passed in the aftermath of the 2008 recession that require members of Congress to report securities transactions.
Meanwhile, back in Philadelphia, the pandemic is limiting public access to Department of Licenses and Inspections records that civic groups use to track development projects in their communities and challenge zoning and building permits.
The courts are also wrestling with transparency in the coronavirus era.
Last week, at the urging of state health officials, the Pennsylvania Supreme Court closed all courthouses statewide to the public, with exceptions only for lawyers, judges, and the parties involved. In their order, the justices acknowledged the extreme nature of the step they were taking, given long-standing presumptions that judicial proceedings should be open for public view.
But, they wrote, “this court is cognizant of the nature of court proceedings, during which individuals who may be carrying the virus with or without symptoms — including court staff, attorneys, litigants, other court participants and members of the public — may come into close proximity with other persons.”
Paul Hetznecker, a Philadelphia civil rights attorney, said that while he understands the current need to prioritize public health, governments need to find safe ways for the public to know how they are handling this crisis “so the populace can inform themselves on the right courses of action without ceding all power to the state.”
“This is not just a health-care crisis, it’s a crisis for governance and the state," Hetznecker said. "And it’s certainly a challenging balance for our democracy that we need to be vigilant in shepherding.”