Open Records Laws, Ignored Amid the Pandemic, Must Be Revitalized

By Sacha Sloan

Last month during Sunshine Week — an annual initiative launched in 2005 to promote open government — U.S. Attorney General Merrick Garland proclaimed that “democratic accountability requires the kind of transparency that [the Freedom of Information Act] makes possible.” Freedom of Information Act (FOIA) requests and parallel state and local laws play a critical role in governmental oversight; they have unearthed governmental misconduct ranging from contractor corruption to clandestine CIA torture. But state and federal public records law non-compliance, an issue noted by government transparency advocates even before the pandemic, has worsened significantly over the past year. Comprehensive reforms are urgently needed to safeguard this pillar of U.S. democracy.

To be sure, COVID-19 posed unique challenges for public records officials across the country. Public records-focused government employees had to adapt quickly to working from home, which made it more difficult to process some requests, such as those for paper-based or classified documents. The failure to invest in IT infrastructure compounded these problems. Add the stress of working through a once-in-a-century public health crisis, and a slow-down in production of public records was inevitable.

But over a year after COVID-19 surfaced, governments continue to let requests fall by the wayside under the guise of bureaucratic triage. In reality, many officials are relying on the pandemic to justify withholding information that might paint them in a bad light. Health departments, such as those in New York and Iowa, have refused to release data on nursing home outbreaks; governors from California to Massachusetts have suppressed the release of public health decision-making records; and several states, including Connecticut, Hawaii, Indiana, Mississippi, New Hampshire, Rhode Island, and Washington continue to suspend open records laws via emergency measures. Governments should not be using a pandemic as an excuse to stem the flow of important public information.

Even when officials reluctantly do agree to release information, demanding fees is another effective way to avoid disclosure. For example, in Florida — which ostensibly has robust public records laws — health officials this year have charged reporters and nonprofits tens of thousands of dollars for limited batches of emails and pre-compiled datasets. Florida is one of 19 states that do not waive fees for groups requesting records in the public interest. Government agencies may use fee demands to dissuade requesters: in Wisconsin, reporters last fall uncovered police emails in which officers openly discussed their practice of “[combating] the issue” of requests with exorbitant fees. Charging for records also unfairly advantages wealthy organizations, creating a pay-to-play system in what was intended to be an egalitarian process.

Another oft-used end run is simply delaying document release. In Nevada, throughout the pandemic officials have taken months to relay critical information such as vaccination data and hospital capacity reports. Despite this, Nevada legislators and government agencies have loudly opposed reforms that would increase penalties for such delays. Elsewhere, state leaders like Mayor Lori Lightfoot of Chicago have cited the pandemic to argue in favor of suspending response deadlines altogether. Dragging out the disclosure process stymies effective journalism and renders many documents useless — by the time requesters receive their information, the window for a news story has already passed. CfA experiences this often; this month, for instance, the Department of Health and Human Services finally responded to a CfA records request sent nearly a year ago about the effects of tear gas used by federal agents against Black Lives Matter protestors in the summer of 2020. Even now, however, the agency didn’t provide records, it only asked CfA to narrow the request.

The past few months have seen several states considering expansions to open records laws, but some state legislatures are attempting to weaken them instead. Kentucky lawmakers recently pushed through new measures restricting who can make public records requests and loosening public records deadlines for state agencies; neither staunch opposition from dozens of news organizations and nonprofits nor an impassioned veto from the governor were enough to stop the bill’s passage. A recent bill in Arkansas that would have shut the public out of economic development discussions made it through the House before dying in the Senate. Even in states considering outwardly positive reforms, problems persist: the Michigan House last month voted unanimously to make legislators and the governor subject to public records requests, but the bill would also afford lawmakers several too-broad exemptions (covering, for example, any documents deemed as “constituent communication”) that would be ripe for abuse. Michigan Secretary of State Jocelyn Benson consequently criticized the bill, saying she wants to “avoid a scenario where it appears that… FOIA extension has been put into law, but it actually has a lot of loopholes in it. It doesn’t actually give access to the information.”

Open records laws are facing formidable attacks on the federal level as well. Despite Merrick Garland’s Sunshine Week speech, the president won’t release virtual visitor logs, even though such meetings are central to government work during the pandemic. CfA’s Tech Transparency Project relied on Obama White House visitor logs to reveal the extent of Google’s influence with his administration. Just last week, the DOJ refused to make Trump-era documents on family separation policies public. And in early March, the Supreme Court dealt a devastating blow to federal transparency by broadening the “deliberative-process privilege” FOIA exemption, which federal agencies regularly abuse to hide consequential documents.

Efforts to decrease transparency likely will intensify. The abrasion of public records laws is a vicious cycle; as it gets harder to access information about the government’s doings, it becomes easier for officials to undermine transparency behind the scenes. Indeed, only through FOIA-retrieved DOJ documents did investigative journalists discover former President Obama’s quiet battle against open records reform bills, which had enjoyed overwhelming bipartisan support in Congress. In 2016, the Obama administration set records for money spent defending its FOIA denials ($36.2 million) and for the number of these denials, though the Trump administration shattered this record in 2017.

There is no shortage of ways in which President Biden and state governments could champion transparency over secrecy. In recent months, groups ranging from the Electronic Frontier Foundation to the Project on Government Oversight to the Center for Biological Diversity have called on Washington to close holes in FOIA. Recommendations include mandating federal agencies to proactively release certain documents, such as opinions authored by DOJ’s Office of Legal Counsel; ensuring appropriate use of FOIA exemptions; updating the National FOIA Portal; and allocating more resources to the chronically underfunded nationwide FOIA offices.

These proposed revisions would significantly improve federal government transparency, and executive branch endorsement of open records reform might spur states to follow suit. As the U.S. begins to emerge from the pandemic’s grip, we should reflect on what this crisis has revealed about our government’s priorities. Democracy relies on an informed populace — only with sunlight can we see the path ahead.

Campaign for Accountability (CfA) uses research, litigation and aggressive communications to expose misconduct & malfeasance in public life.