“Far too often governments routinely deny requests for information with impunity.” – John Cornyn
Sunshine Week, launched in 2005 by the American Society of News Editors, is a time to remind Americans that for society to remain free, government must have complete transparency. And for the second year in a row, Sunshine Week passed silently like two ships in the night with nary a wave.
When the pandemic was declared in March 2020, many local, state and federal employees were told to abandon their offices and work remotely. Employees tasked with answering open-records requests had to work from home computers that were incompatible with software used to process records requests. And almost two years later, many of those records requests remain unanswered.
Many government employees are still working from home since agencies found this was a way to cut costs. As a result, answering public records requests nationally has become an afterthought. And our most valuable tool to keep our governments candidly honest has all but vanished into oblivion.
Before World War II, government agencies had broad control over information. But by 1946, with concerns over abusive foreign power, Congress passed the Administrative Procedure Act, making it easier to obtain government information. In 1966, Congress passed our current Freedom of Information Act.
The federal Freedom of Information Act mandates federal entities process record requests within 20 working days, and promptly release the requested information. Only sensitive security records are exempt by law. Every state has similar FOIA laws to protect people from government abuse.
Federal and state laws that require government agencies to disclose records upon request under Freedom of Information Act laws are valuable tools to expose behind-the-scenes corruption, or suspected government machinations of public interest. And anyone can use them.
“People should not be afraid of their government. Governments should be afraid of their people.” – Alan Moore
COVID-19 impeded access to government records when the public needed vital information about state and local governments’ responses to the health crisis. But many local governments became authoritarian and used the pandemic to replace individual rights with abusive dictatorial absolutism.
The Reporters Committee for Freedom of the Press (RCFP) is a D.C. Beltway group that provides legal services for journalists. They recorded almost 200 cases where state and local officials in 41 states cited the pandemic as a reason they denied access to public records in local governments.
Adam Marshall, an attorney for the RCFP, wrote, “At the beginning of the pandemic in America, we realized quickly how transparency was important for the public at that time. At the same time, we also saw how quickly the pandemic could become a threat to all future government transparency.”
“A government by secrecy benefits no one. It injures the people it seeks to serve.” – Russell Long
Although many state and local jurisdictions did their best under the circumstances,” others did not.
Some agencies essentially told requesters that they were not going to respond to any requests for records until the pandemic was over. This was disturbing, since in many instances, public-records laws are the only legal mechanism for the people to pry information out of an unwilling government.
The latest information available from the RCFP found that the average time it took federal agencies to process simple FOIA requests was over 40 working days. Requests considered more complex averaged 300 days. It is estimated 15% were not answered at all. By September last year, 120,436 requests from federal agencies were not processed in a timely manner as required by FOIA laws.
A Congressional Research Service report revealed there were a range of FOIA changes during the pandemic at federal agencies, especially at the CDC and the Food and Drug Administration. They noted that these procedural changes made it more difficult to process even simple FOIA requests.
“Power corrupts! There is nothing more corrupting than power exercised in secret.” – Daniel Schorr
There is no greater tool in the public’s arsenal to keep local government honest than open records. Since all government is local, that is also where most violations occur and can be adjudicated. The pandemic is a gift that keeps on giving to local governments so they can work behind closed doors.
In April 2020, the Metropolitan Area Transit Authority of Maryland and Virginia announced they’d no longer answer open record requests. In March 2020, the D.C. City Council and the Rockville, Maryland, city manager suspended their obligations to respond to open records requests by executive order.
During the pandemic, city and county governments across America passed laws suspending their open meeting acts in the name of “citizen safety.” And many used this opportunity to legislate with reckless abandon. By suspending open meetings acts, county and city commissions held meetings on the telephone and passed new laws and abolished others without any input from the electorate.
The pandemic fueled a crisis for democracy around America. Governments used executive powers to silence their critics and weaken or shutter important protective institutions. This enabled them to undermine the very systems of accountability needed to protect citizens from abuse by them.
“The biggest mistake you make is believing that governments act in the public interest.” – Steven Magee
According to a survey by Freedom House, over half of the respondents reported that government abuse of power was a major offense against democracy during the pandemic. A total of 57% felt that government took advantage of the pandemic to enact authoritative measures that limited the rights of their citizens. Only 27% responded that they felt government acted in their best interests.
Ronald Reagan said, “As government expands liberty contracts.” When state economies shut down during COVID-19, Americans saw this as a serious threat and welcomed government’s help. But when the economic downturn ended, governments kept “democracy locked-down.” And today, too many Americans are accepting these new limits on their republican democracy as the status quo.
It is time that we demand all government entities reopen their doors to our public records and open meetings. Laws suspended and others passed to protect us from ourselves are now being abused by governments to protect them from us! COVID-19 is a tragic chapter in our history, but we must profit from it. The lesson we have to learn is: “Give the government an inch and they’ll take a mile.”
“All power over a nation is either delegated, or assumed. And all delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.” – Thomas Paine