On March 20, the number of coronavirus cases in New Jersey had just soared above 800.
That day, Gov. Phil Murphy signed an emergency package of laws to deal with the outbreak, including one that loosened the requirements of the state’s Open Public Records Act, or OPRA.
“We just have to deal with the reality of manpower, the ability to turn things around,” Murphy said at a press briefing. “We’ve gone to a different place.”
The new law virtually eliminated the deadlines that New Jersey agencies used to be required to meet in responding to requests for government records.
Murphy said the overwhelming public-sector effort to tackle the COVID-19 outbreak meant that some government functions may be delayed.
“Let me say something which probably is apparent to you: we’re at war,” he added.
The New Jersey law is just one example of how governments and public agencies across the country are relaxing their public records laws and policies to give civil servants more bandwidth as they grapple with the pandemic. Some officials have said they are simply too busy dealing with urgent public health needs to fulfill public records requests quickly.
But transparency advocates have said that times like these are when public entities should prioritize sharing information with residents.
“Transparency is often most important when it is least convenient,” said Erik Arneson, executive director of Pennsylvania’s Office of Open Records.
He said that during a time of public health and economic uncertainty, residents want information about the life-and-death decisions their governments are making behind closed doors.
“The last thing they want to do is also have a lot of questions about how their government officials are handling things,” Arneson said. “If they get the sense that the government is hiding things, it’s just a recipe for suspicion.”
Municipal and state leaders say it’s not about secrecy, but rather keeping the public safe with limited resources.
A number of federal agencies have told records requesters to expect delays. Governors in Washington, Indiana, Rhode Island, Hawaii, and other states have rolled back or suspended their public records laws.
In mid-March Philadelphia suspended all deadlines on pending and incoming Right-to-Know requests “until normal operations resume.”
Arneson said that it would be reasonable to expect delays in getting public records during a pandemic but suggested that open-ended policies such as the one Philadelphia adopted were a mistake.
“Agencies that took that position really need to take a good look at it and revise it,” he said. “They’re in real danger of having a court review their actions at a later day and sanction them for bad faith under the Right-to-Know law.”
C.J. Griffin, a New Jersey attorney focusing on government transparency, said there are valid reasons why a public records request may take longer or be more difficult to fulfill during a pandemic.
“There could be some categories of documents that [government officials] just can’t access because they’re not physically in the office, and maybe those records exist only in hard copy or maybe they’re in an archive or storage,” she said.
Still, she agreed that agencies should not use the pandemic as an excuse to withhold information, “especially any public records that relate to the outbreak itself, in terms of information about the cases that are occurring and the government resources that are needed.”
Griffin said that could include information like how governments are spending money on coronavirus supplies and which companies are getting the contracts, as well as police activity in a given town.
Arneson praised the majority of Pennsylvania agencies he said were continuing to process Right-to-Know requests, but noted that there were come exceptions.
“Just like a state is not going to let its highways crumble during a pandemic or a municipality is not going to let the garbage go uncollected during a pandemic,” he said, “agencies need to keep handling [requests under] the Right-to-Know law.”