In the midst of the coronavirus pandemic, as the stakes for access to relevant information are at an all-time high, government agencies from the local to federal level are failing to live up to their legal transparency obligations. The ability to access public records is always important, but never more critical than when the government is taking (or failing to take) unprecedented steps in response to unprecedented threats.
In these moments, the government must demonstrate trustworthiness and credibility. A cornerstone of building public trust is the understanding that certain records are always subject to public scrutiny, especially when that scrutiny may shed light on government officials acting on incomplete information or making difficult decisions.
So, it's frustrating to see politicians such as Hawaii Governor David Ige suspending his state's public records and open meeting laws entirely during the emergency declared in response to COVID-19. It’s perhaps not coincidental that his handling of the crisis has already come under scrutiny and criticism.
Hawaii may be among the most extreme in its limitation of public records access during this crisis, but it is far from alone in the effort. In Chicago, the mayor's office declared the city would automatically reject all public records requests for the duration of the emergency, before backing down from that position amid widespread backlash. Transparency obligations have been on the chopping block in countless state and local jurisdictions, as the Reporters Committee for Freedom of the Press has begun to document.
There are some bright spots in terms of transparency. The Centers for Disease Control and Prevention, for example, hold records that may be critically important during this health crisis, and have issued a new guidance on filing requests to a FOIA office that is working entirely remotely. Contrast that with the FBI, which has suspended electronic filing and fulfillment altogether, or the State Department, which has virtually ceased record production after estimating a 96% reduction in its ability to process requests.
Diminishing compliance with FOIA obligations may seem inevitable with such a dramatic reduction in capacity. It’s not. It is the result of years of failure to take transparency seriously. That is apparent both in the State Department’s admission that it does not consider FOIA fulfillment "mission critical," and in the already massive backlogs and delays the agency has faced in recent years.
The stress of a global pandemic, and the extraordinary measures taken in response, have exposed cracks in many systems that may have worked well enough under normal circumstances, but have grown fragile. In many cases, that fragility stems from a lack of investment and a failure to prioritize obligations to citizens. Government transparency obligations surely fall into this category.
Journalists, researchers and watchdog groups have warned for years that the FOIA system was not receiving the resources it needs to fulfill its aims. It's no surprise, then, that such a system is even less functional as agencies turn their attention to the crisis at hand.
Decisions made by officials at all levels of government during this pandemic may be among the most consequential in a generation. We've elected lawmakers and executives to govern in good times and in bad, and their response shapes our ability to handle the public health emergency we face. More than ever, the public deserves to examine those decisions and the records that support them.