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 “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.
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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
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