March 20, 2020
As state, tribal and local governments across the United States take measures to respond to the COVID-19 epidemic, executive orders and legislative proposals are calling for the suspension of normal operating procedures including, at times, compliance with open-meeting and public-records laws. We strongly urge government branches and agencies to recommit to, and not retrench from, their duty to include the public in the policy-making process, including policies relating to COVID-19 as well as the routine ongoing functions of governance.
Government bodies should not opportunistically take advantage of the public’s inability to attend large gatherings to make critical decisions affecting the public’s interest if those decisions can reasonably be postponed. Just as citizens are being asked to defer nonessential travel and errands, so should government agencies defer noncritical policy-making decisions until full and meaningful public involvement can be guaranteed. Where postponement is not realistic, every available measure should be taken to (1) notify the public of meetings of government bodies and how to participate in those meetings remotely, (2) use widely available technologies to maximize real-time public engagement, and (3) preserve a viewable record of proceedings that is promptly made accessible online.
We understand that government agencies will struggle with staffing and time constraints during this period of exigency, as employees transition into working from home, attend to personal and family health needs, and become focused on crisis-response duties. Some agencies undoubtedly will have difficulty meeting their legal obligations to process requests for public records promptly and thoroughly. This predictable difficulty counsels strongly in favor of affirmatively disclosing as much as is legally permissible without waiting to receive a request for records. Members of the press and public often resort to freedom-of-information requests when decisions are made secretively. It should not be necessary to reconstruct critical decisions about public health and safety by piecing together email trails. The fact that a government decision involves public health and safety is a reason for more, not less, transparency.