“I apologize for not getting the FOI response to you,” a public-records officer with the Metropolitan Washington Airports Authority wrote in an April response to a Washington Post public-records request for emails about the construction of Northern Virginia’s Silver Line rail project. “[I] had to replace ink cartridges in my home office.”
The federal and state laws that require government agencies to disclose their records — generally referred to as FOIA, or Freedom of Information Act, laws — are powerful tools that have been used to expose the behind-the-scenes government machinations on matters of public interest.
In 2015, independent journalist Brandon Smith used the Illinois Freedom of Information Act to force the release of Chicago police dash-cam video showing the October 2014 fatal shooting of 17-year-old Laquan McDonald. The video brought scrutiny of police conduct, leading to a murder charge against the officer who shot McDonald.
The Post used the federal FOIA to compel the special inspector general for Afghanistan reconstruction to release confidential interviews with government officials and others. The Post last year used the interviews to reveal that most high-ranking officials privately believed the 18-year war in Afghanistan was unwinnable.
A New York Times FOIA request obtained Centers for Disease Control and Prevention data for a story in July that revealed minority communities have a coronavirus infection rate three times as high as their White neighbors.
But the coronavirus pandemic has impeded access to government records at a time of great public interest in official responses to the health crisis, which has claimed more than 200,000 lives nationwide.
The Reporters Committee for Freedom of the Press, which provides legal support for journalists, has catalogued more than 130 instances in which state and local officials in 39 states and the District of Columbia cited the pandemic as a reason to curtail access to public records.
“At the beginning of the covid outbreak in the United States, the Reporters Committee realized very quickly that not only was transparency especially important for the public during this time, but also that there was a huge threat to this transparency posed by covid,” said Adam Marshall, the Knight litigation attorney for the Reporters Committee for Freedom of the Press.
Many state and local jurisdictions tried to do “the best they could under the circumstances,” according to Marshall, “but many took pretty extreme measures, some agencies essentially telling requesters: We’re not going to respond to your requests until covid is over.”
This is troubling, Marshall said, because “public-records laws are, in many instances, the only legal mechanism for the public to pry information out from the government.”
On March 17, the D.C. Council unanimously approved the Covid-19 Response Emergency Amendment Act of 2020, which included a “covid-19 closure” provision allowing government agencies to indefinitely delay responding to FOIA requests.
Since then, members of the public attempting to submit a request on D.C.’s FOIA website have received a message stating that “all FOIA deadlines may be extended during a period of time for which the Mayor has declared a public health emergency.”
The Washington Metropolitan Area Transit Authority, which has jurisdiction and operates transit in D.C., Maryland and Virginia, announced April 4 on its website that the “processing of PARP [Public Access to Records Policy] requests has been temporarily suspended until further notice.”
In Rockville, the city manager issued an executive order effective April 3 that suspended processing public-information-act requests, saying that the suspension “will not endanger the public health, welfare or safety.”
At the federal level, a March 27 Congressional Research Service report catalogued a range of major and minor changes during the pandemic to FOIA practices at 13 federal agencies, including the CDC and the Food and Drug Administration. The report noted that the multiple physical and digital systems needed to process FOIA requests made employees’ tasks even more difficult. The report also recommended that “FOIA requests are to be expedited as soon as practicable in cases in which the person requesting the records demonstrates a compelling need.”
A separate report by the Office of Government Information Services, the federal FOIA ombudsman, found that 191 of the 305 federal agencies and offices surveyed provided no updates on their websites on how covid-19, the illness caused by the novel coronavirus, was affecting processing.
“Some agencies have been able to redesign their FOIA processes so that they are able to continue their work remotely, albeit with some associated delays,” said Alina Semo, director of the Office of Government Information Services. Others, she said, including those that process classified records, “have been forced to suspend FOIA operations temporarily.”
Agencies are facing multiple challenges, including an inability to receive requests sent via mail and fax, limitations on searching for and reviewing paper records, and incompatible telework setups and FOIA software, said Bobak “Bobby” Talebian, director of the Justice Department’s Office of Information Policy. His office is responsible for promoting government-wide compliance with FOIA.
“Many agencies are minimally impacted, most have at least some level of impact,” said Talebian, who became director in February.
In early March, agency FOIA offices were thrown into “a very fast evolving situation with agencies adjusting very quickly to national guidelines and necessary precautions to protect the health and safety of the workforce,” he said.
On May 28, the Office of Information Policy issued guidance to federal agencies, noting that the time frames required for responding to requests still applied despite the pandemic.
“Agencies should do their best to timely acknowledge requests and appeals, notify requesters of any unusual circumstances, and make timely determinations on requests for expedited processing.”
Talebian’s office also recommended that agencies proactively disclose records on their websites, which some agencies have done. The Labor Department, for example, has been posting weekly reports of pandemic-related complaints filed with the Occupational Safety and Health Administration.
Even before the pandemic, people who filed open-records requests often faced delayed responses from government agencies.
The federal Freedom of Information Act mandates that the 118 federal agencies it covers “promptly” release requested records, requiring them to process requests within 20 working days, unless the records are exempted by law. Each state and D.C. has its own version of a Freedom of Information Act, most of which follow the contours of the federal law and require a response within a specified number of days or weeks.
Despite the federal law’s requirement, the most recent evaluation found that the average time it took federal agencies to process a FOIA request identified as “simple” was more than 39 days. Requests that agencies deemed “complex” faced longer delays: 14 percent of those requests took more than 400 days to process. There were 120,436 requests with federal agencies that had not been processed in the time required at the end of the fiscal year in September.
Some federal agencies have said that the pandemic has forced them to largely abandon their FOIA responsibilities.
On May 22, David Hardy, chief of the FBI’s records division, stated in an ongoing FOIA lawsuit that on March 17, the FBI “temporarily halted its FOIA program in response to the Covid-19 pandemic.” The FBI has recently started to process some records requests in response to litigation.
The State Department’s FOIA program — which had pending requests from 2006 before the pandemic — has also cited covid-19 as the reason it has effectively stopped processing most requests, which Politico reported in March.
Eric Stein, head of the State Department’s FOIA program, said in a March 25 court filing in a FOIA lawsuit that his agency employs retired Foreign Service officers to process requests. Stein said: “The vast majority of [these officials] are not telework ready. The State Department estimates its FOIA processing capability is reduced by 96% due to the unavailability” of its workforce.”
The Post had to sue the State Department to force the release of records related to the pandemic.
On April 3, The Post filed a FOIA request for an unclassified 2018 cable detailing concerns of U.S. Embassy officials in China about a lack of adequately trained personnel at a virology lab in Wuhan, the city that became the epicenter of the coronavirus outbreak. The agency failed to respond, and The Post sued over the request. On July 16, the agency made public a copy of the cable.
A bipartisan group of senators has raised concerns about the failure of federal agencies to respond to requests.
“We understand all agencies and departments are continuing to adapt to the current circumstances, but it is the Department’s duty to ensure that FOIA administration is not simply cast aside as a temporary inconvenience,” the letter said.
Some federal and state agencies have continued to provide timely access to information.
On March 5, The Post sent a public-records request to King County in Washington state, an early hot spot of the U.S. pandemic. Five days later, the county released the records. The documents showed that Kirkland Life Care Center, the first known U.S. covid-19 cluster, missed opportunities to control exposure to the coronavirus.
“We received a huge surge of covid-related requests,” said Julie Kipp, public-records officer for Seattle and King County Public Health.
Despite the challenges, Kipp said that she and her team tried to release as much information as quickly as possible.
“We knew we were the first area that was hit with this and it is something that we either have to respond to now, or we will have to respond to later,” she said. “When people are scared . . . it behooves us to make sure that we are remaining open and people see how we are going about responding to this.”
Lori Aratani contributed to this report.