How is COVID-19 Impacting State and Local Government Public Records Departments?
by Jen Snyder, Chief Sales Officer, GovQA
Around the second week of March, we started waking up to a local, national and global nightmare: coronavirus.
It’s not the first time this century overstretched governments have had to scramble to manage both day-in day-out tasks and emergency management and response – think 9/11 and Hurricane Katrina. But it’s the first one that’s meant the only way to get ahead of the threat was to stop sharing space for an undetermined time.
The ability of every citizen to ask for and get information from governments is as fundamental a right as voting. So fundamental that it’s enshrined in the First Amendment and citizens can sue if they think governments haven’t complied with requirements.
So how have governments’ efforts to battle coronavirus been impacting the functioning of public records requests? We took a look across the country and found that government actions followed some trends:
“We are considering remote working, which will mean administrative offices will be closed and many records will be unavailable for processing. We are also asking more staff to assist in record review and processing.”
GovQA COVID-19 Survey Responder
Temporarily Suspending PRR requirements
At every level, governments have had to divert resources from other functions to fight coronavirus on the public health, public safety, emergency management, and other fronts. At the same time, coronavirus cases and exposures along with school closures have left desks at state, county and city offices vacant.
Some governments responded by publicly stating that for the time being they wouldn’t process PRRs. How has this played out?
“Non-essential city services may be suspended, including but not limited to, responding to requests under the California Public Records Act.”
Fresno, California City Council
Some California cities suspend requests
On March 19, the city council of Fresno in central California suspended its duty to respond to public records requests, decreeing by ordinance that “Non-essential city services may be suspended, including but not limited to responding to requests under the California Public Records Act.”
By that time, both the City and County of Fresno as well as the State of California had declared states of emergency due to coronavirus. Fresno’s move to temporarily abandon public records requests was decried by free speech activists and newspaper editorials, but so far no word that Fresno has changed its approach.
Fresno was in fact joined by other California jurisdictions in stating they wouldn’t be responding to PRRs. According to the L.A. Times, City of Fremont in the Bay Area “won’t take requests until city offices reopen after the coronavirus emergency is declared over” and reports similar actions by the cities of Los Altos and Martinez.
The Times article includes the First Amendment Coalition’s perspective that public access to information is especially critical during emergencies: “Government power is at its apex in a crisis, and so is the risk that the government will abuse that power. Transparency provides a crucial check on that possibility.”
The Coalition Spokesperson also observed “emergency declarations at the state and local levels made no mention of allowing governments to ignore California’s open records law.”
Maryland government and politics website Maryland Matters observed “Some state agencies have used the edict to shut down timely access to public information altogether, for the duration of the emergency. Others are struggling to meet public records requests in a timely fashion.”
On April 20, the site filed a PRR for information on how the Maryland Department of Public Safety and Correctional Services (DDPSCS) was addressing specific issues related to prisoners and Covid-19. The Department responded that it had suspended processing of all PRRs until the state of emergency had been lifted, in alignment with a March 12 executive order signed by Governor Hogan. The order gave the heads of state agencies and local governments authority to extend legal deadlines. As of May 6, all PRRs to DDPSCS were still being held. A Hogan spokesperson noted that not all agencies were holding PRRs and that for some tackling any PRR backlog would be part of their Covid-19 recovery plan.
“Government power is at its apex in a crisis, and so is the risk that the government will abuse that power. Transparency provides a crucial check on that possibility.”
L.A. Times
PRRs and the First Amendment
The question comes up – even if an emergency declaration does relieve governments, at least temporarily, of the duty of responding to PRRs, do they usurp the First Amendment?
If Texas law is anything to go by, the answer is yes. Section 522.233 of the Government Code of Texas provides that governments experiencing disasters can suspend applicability of the state’s Public Information Act for up to 14 calendar days but also that a formal suspension under the law isn’t needed if the government is open for business but has determined that a disaster will interfere with its ability to comply with the Act.
California city officials ask Governor Newsom to suspend numerous state laws
In an April 1, 2020 article in the Press Democrat, the executive director of the League of California Cities is quoted as saying that “city resources and personnel are stretched thin [responding to the pandemic]” and asked Newsom last week to “take immediate action to pause certain statutory requirements.”
Kayla Woods, a spokeswoman for the League, which represents nearly 500 cities, says they are not seeking to suspend all public records requests. Rather, they want the flexibility to be able to respond only to those PRA requests created during, and related to, the COVID-19 crisis.
The governor of New Jersey, Phil Murphy, has called the fight against the coronavirus a “war,” causing some government functions to be delayed, including loosening the requirements of the state’s Open Public Records Act.
The law in New Jersey is just one example of how governments across the country are relaxing their public records policies to give civil servants more bandwidth to deal with the pandemic.
The mayor of Philadelphia, along with municipalities across the country, and governors in Washington, Indiana, Rhode Island, and Hawaii have all rolled back or suspended public records laws. Some federal agencies are also telling people to expect delays.
In essence, the statement is an open appeal for forbearance on everyone’s part. Of requesters, it asks “Unless you have an urgent need to access records, please do not file any new Right-to-Know Law (RTKL) requests at this time.” On the other hand, it reminds agencies that “transparency builds trust, especially in times of crisis” and that they “should continue processing RTKL requests to the greatest extent of their ability to do so.”
Meanwhile, on May 5, the PA General Assembly passed House Bill 2463, known as the “Restoring Transparency In State Government,” amending state administrative code that addresses providing responses to PRRs during declared disasters. It states in part “The Governor may not direct a Commonwealth agency to ignore requests for records or suspend the Commonwealth agency’s process to answer a request for records during a disaster declaration.” The legislation has now been taken up in the PA Senate.
“Transparency is often most important when it is least convenient.”
Erik Arneson, Executive Director of the Office of Open Records, PA
Delaying Responses But Staying Responsive
“As soon as practicable”
PRR law usually recognizes that the time needed to respond to requests will differ based on the nature of the request and other variables. The State of Wisconsin’s Public Defender’s Office puts it this way:
“The SPD will respond to all public record requests as soon as practicable and without delay. The time it takes the SPD to respond will depend on factors including the nature and scope of the request, the availability of staff, and the other resources necessary to process the request.”
The term “practicable” is key. You’ll find it in PRR code and related notices in many jurisdictions.
Spirit of the Law
Some simply say records will be provided as soon as is practicable; but others, likes Rio Rancho, NM put “practicable” at the far end of the response time range: “The City Clerk’s office must permit inspection immediately or as soon as practicable, but no later than fifteen (15) calendar days after the records custodian receives the inspection request.”
But an advisory issued by the NM Open Government Division after the governor’s March 11 coronavirus-related declaration of emergency acknowledges that staff will be teleworking and delays are likely and permissible:
”Where the state of the public health emergency hampers an agency’s ability to respond, we urge the agency nonetheless to communicate promptly with the requester to make alternative arrangements to allow for the inspection of records, in keeping with the general spirit of the law.”
A 3/24 proclamation from Washington State’s governor also acknowledges PRR processes will be delayed and echoes the New Mexico statement about maintaining the spirit of the law: “agencies are still expected to continue to respond promptly and to the greatest and fullest extent possible.”
Locking Down City Hall
Emergencies at every level
As of March 24, according to the National Association of Counties, all 50 states had declared states of emergencies. Seven adopted business closure policies, 13 adopted safer-at-home policies, and 1 adopted both.
574 counties declared their own emergencies, with one adopting business closure, 32 shelter-in-place, and one both.
Social distancing
While trying to sort out what to tell the public about where they can and can’t, or should and shouldn’t go, governments from states to the smallest towns have been determining they’ll close premises and cancel in-person events and services including public meetings, hearings and inspections, to maintain social distancing. Thousands of states, cities and local governments have done so with no end date in sight.
An ongoing informal survey of GovQA customer jurisdictions showed that as of March 26, 41 of 70 respondents reported working from home; eleven offices had fully or partially closed. Six reported that their lobbies were still open to the public and staff were reporting to work as normal.
Changing perceptions of “closed” and “open”
State and local code, some of it passed long ago, refers to government being either “closed for business” and “open for business.” But technology, flexibility and ingenuity, along with a shift to viewing citizens as “customers” and themselves as “providers”, means governments see themselves as “sets of services.” They’re innovating to keep as many services going as they can during crises. Messages like these on the Pennsylvania Department of Environmental Protection website are common:
“COVID-19: DEP offices closed...
“In order to prevent the further spread of COVID-19, all DEP offices are closed. To report environmental emergencies, please call 1-800-541-2050.
“DEP staff that are able are teleworking, and still fulfilling the mission of the department. This includes reviewing permits, responding to complaints and environmental emergencies, and other work. For general inquiries, please continue to contact DEP.””
Pennsylvania Department of Environmental Protection website
Watauga County, North Carolina reports:
““Effective Monday, March 23, 2020 - Watauga County buildings will be closed to the public.
“All county departments and operations will remain on normal operating hours. Staff will be available to respond to citizen’s requests via email, telephone, or by appointment where applicable.”
And specifically on PRRs:
“All public records requests may be requested by phone...or be submitted by e-mail...””
Watauga County, North Carolina website
Teleworking – Public service, remotely
Of all the sectors of our lives that technology has revolutionized, communication – along with the ability to move data from place to place – may be the biggest. During “normal” times as well as crises, it has placed before us the possibility that work can be done from anywhere.
For government, this possibility comes with complications. In no other sector are employees referred to, and proudly so by many, as “servants” – of the public. This concept of service traditionally carries with it the idea that public sector employees are available when citizens show up at city hall, and the smaller the jurisdiction the more likely this is to still be the case.
A challenge and an opportunity
But at this time, public servant-citizen and staff-to-staff interfaces could be deadly. Some governments like the State of Tennessee, committed to teleworking years ago and had the time to work through the technology needs; but, perhaps more importantly, the work policy and controls issues.
Other local governments like Baton Rouge, LA, the State of Delaware, and DuPage County, IL had to scramble to set up teleworking when coronavirus hit. (Others mentioned in this GovTech article are: Oakland, CA; Los Angeles, CA; Philadelphia, PA; Virginia Beach, VA; and Wake County, NC)
Govtech.com quotes Phil Bertolini, former Chief Information Officer of Oakland County, MI, as saying “the challenges of managing a remote workforce are likely to be greater when decisions about telework have to be made quickly….impacts to certain city services will be difficult to mitigate without bodies in an office.” He considers the coronavirus crisis as “an opportunity for government to stretch its legs on telework.”
Teleworking Complications for PRR
Multiple staff and paper records
As PROs know, any size or nature of request could come in at any time. You know at a glance whether a request will involve maybe one other person and a single document, or an untold number of other people and possibly thousands of documents.
Some jurisdictions (like GovQA customers) have implemented PRR management technology that facilitates the entire process. Others have invested significantly in document digitization and management technology that makes accessing the right documents easier and minimizes the number of people that need to be involved. Some have done both.
But some still rely heavily on people being in the office, meaning one or more of the following:
- needing to ask multiple staff if they have responsive documents, because only those people have access to the documents and know if they’re responsive;
- many documents are still only in paper form;
- having to consult with management, legal counsel, and staff from other departments about issues like request scope, responsiveness, document withholding, and document provision coordination.
Respondents to our survey reported public records responses would be slowed often due to paper records – either because other people had to retrieve them, they had been archived, they had to be scanned and uploaded or sent, or offices were locked down.
The Right to Inspect
As with many jurisdictions, the State of Washington built key “in-person” language into its public records code (Revised Code of Washington 42.56). As the WA Attorney General’s website says, citizens are entitled to inspect and access records – carrying the sense that citizens are entitled to see the interior workings of their governments as well as being able to get usable information.
One Washington State agency has had multiple experiences of gathering roomfuls of paper documents (many of which should have already been discarded pursuant to document retention policies) and citizens spending days reviewing them while a staff member supervised. Given the volume of records, there was really no practical alternative; and among thousands of documents, a requester might only identify a dozen worth copying.
Conclusions, in the Midst
The coronavirus situation continues to change day to day, week to week. But governments are responding and adapting as quickly as possible. Whether that means temporarily suspending or delaying PRRs (or the portions of responses which require on-site document collection); changing the way governments physically interact with requesters (closing lobbies and reducing in-person records inspection options to obey social distancing recommendations or mandates); or learning for the first time how to continue to do public records work from home; we’re all in this together and we will find ways to continue to keep the channels open between citizens and governments.
GovQA promises to continue to monitor the actions taken by state and local governments across the nation – and bring new insights and ideas to you in real-time.
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