RCFP makes recommendations for press freedom, government transparency during COVID-19

In response to the COVID-19 pandemic, the Reporters Committee for Freedom of the Press is outlining recommendations for journalists, legislators, and courts to ensure the press and public’s right of access to government information and proceedings is protected while entities take necessary steps to stop the spread of the coronavirus.

The Reporters Committee will continue to update the resource in real time as the situation around COVID-19 — and how federal, state, and local governments respond to it — evolves. Anyone who has updates about government responses to COVID-19 that impact newsgathering rights or public access can submit them to media@rcfp.org.

Emergency Powers and the Press

As of March 18, 2020, communities around the United States have taken various emergency measures to contain the spread of COVID-19. Most are forms of mandated “social distancing,” such as bans on large gatherings and the closure of non-essential businesses. To date, seven counties in the San Francisco Bay Area have issued “shelter-in-place” orders, which limit when residents can leave home. The Reporters Committee has received a number of questions about how such measures could impact members of the news media, who are working to keep their communities informed.

Is the news media an “essential service” exempt from social distancing orders?

Emergency responses like “shelter-in-place” orders or other forms of social distancing are decisions made by state and local governments. In California, for instance, Gov. Gavin Newsom has broad emergency authorities, but the seven Bay Area counties issued their own shelter-in-place orders. Those orders all classify newspapers, television, radio, and other media services as “essential businesses,” which are exempt from the restrictions but are still strongly urged to comply with social distancing measures such as working six feet apart. This order from San Francisco is an example.

To determine whether and how a news organization is affected by social distancing orders, consult local and state emergency authorities. If you are having difficulty finding contact information for the relevant agency, please reach out to the Reporters Committee’s hotline at hotline@rcfp.org.

The Reporters Committee strongly urges state and local emergency authorities to define news media organizations as “essential businesses” or “essential services.”

How should I prepare to move about in an area subject to social distancing measures?

Journalists working in areas subject to mandatory “social distancing” measures, particularly “shelter-in-place” orders, should, at a minimum, (1) carry press identification at all times; (2) carry contact information for an attorney (or the Reporters Committee’s hotline number: 1-800-336-4243); (3) stay in frequent contact with their employer; and (4) carry a copy of any relevant local or state ordinance.

For areas that are particularly hard hit, journalists should consider best practices for reporting during natural disasters, such as this guide by the Committee to Protect Journalists.

What else can we expect?

Though states and localities are the primary emergency responders, the federal government also has broad emergency power in public health crises, including the ability to limit interstate and foreign travel. To date, more extensive measures, like a regional quarantine, have not been implemented (though there are a number of individual quarantine or isolation orders currently in effect). The laws on mandatory quarantines, and other emergency limitations on civil liberties that could impact the press, are complex. The Reporters Committee will continue to prepare resources as events develop. For specific questions, please contact the hotline at hotline@rcfp.org.

Open Meetings and Public Records

Public records and open meetings laws — also called freedom of information laws, sunshine acts, or open records laws — are the primary legal means for the public to seek information about the workings of the executive branch of federal, state, and local governments. The Supreme Court of the United States has recognized, for example, that the purpose of the federal Freedom of Information Act (FOIA) “is to ensure an informed citizenry, vital to the functioning of a democratic society.” NLRB. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). During a public health crisis, transparency is especially important to ensure the availability of information about the government’s response to the crisis. Reporters and news organizations play an indispensable role in communicating information and engaging in oversight on behalf of the public.

At the same time, in response to the current COVID-19 pandemic, government agencies at the federal, state,  and local levels are taking emergency steps to combat the spread of the virus and, as a result, many government employees are working from home, and may have limited access to agency records and systems. Many government meetings that would otherwise be conducted in open public settings are also shifting to phone or video conferences, sometimes with little or no notice to the public. In light of these concerns, the Reporters Committee is issuing the following suggested best practices for governments and journalists to ensure timely public access to government information during the COVID-19 pandemic.

Should agencies proactively release records related to COVID-19?

Yes! Government agencies at all levels should proactively release records and information about COVID-19 and how government agencies and officials are responding to it. Under the federal FOIA, for example, agencies are required to proactively publish records that have been released to a requester and are likely to be the subject of future requests.

Proactive release of records ensures timely access by members of the news media who can, in turn, inform the public. Proactive release of records also means journalists need not submit formal records requests and public employees can focus on disseminating information.

How should government agencies and requesters handle the submission of records requests?

Government agencies should take steps to encourage the submission of electronic records requests, including by email. Under the federal FOIA, the government is required to maintain an online portal for the submission of requests. Under state public records laws, agencies may also be required to accept electronic requests. New York, for example, generally requires agencies to accept requests via email.

Journalists should submit records requests electronically whenever possible to facilitate their receipt and internal distribution within government. Journalists may want to consider prioritizing the submission of records requests related to COVID-19. Such requests may also receive a timelier response if they are targeted to a limited number of records, and reporters may want to ask for expedited processing of federal FOIA requests related to COVID-19.

The Reporters Committee is aware that the FBI has shut down its electronic FOIA portal and is asking requesters to mail FOIA requests to the agency. There does not appear to be any statutory basis for such a closure, nor has there been a public explanation for the FBI’s actions. During the 2018–19 government shutdown, at least one agency closed its FOIA submission website, but others continued to accept requests.

How should government agencies and employees process records requests in light of COVID-19?

The COVID-19 pandemic is not a reason for government agencies to stop accepting or processing records requests. The Reporters Committee is dismayed by the D.C. Council’s enactment of emergency legislation that permits agencies to delay responding records requests during this public health emergency. Other agencies around the country have reportedly suspended responsesto records requests. The public has a heightened need for access to information at this time, especially with respect to records related to the pandemic and governments’ responses.

Many government employees and contractors appropriately have shifted to working remotely to promote social distancing. It is incumbent upon government entities in such situations to provide their employees and contractors the necessary tools and resources to continue processing records requests.

Federal agencies should liberally grant expedited processing of FOIA requests related to COVID-19 from members of the news media under the statutory definition of compelling need. To the extent other public records laws allow for similar procedures, state and local entities should also expedite and prioritize such requests.

Generally, public records laws require the government to provide a substantive response within a definite number of days. For example, under the federal FOIA, agencies must generally provide a determination within 20 days, excluding weekends and public holidays. Most state public records laws similarly require a substantive response within a number of days. Some laws allow government entities to extend these deadlines in various circumstances, which may or may not apply to issues raised by the COVID-19 response.

Government employees charged with processing records who believe they cannot meet the statutory deadline for providing a response may wish to communicate with requesters to inquire whether they would be willing to modify their request or agree to an alternative processing timeframe. Some public records laws allow or suggest such a process. Given that many journalists are working remotely, government employees should communicate with them via email whenever possible.

Mutual communication and flexibility between requesters and responding agencies should be a priority to ensure timely and continued access to government information.

What are some best practices for ensuring access to public meetings?

If government bodies shift public meetings to online or telephonic formats, they should ensure that the public is provided as much advance notice of such meetings as possible.

Public bodies should allow public attendance and participation in online or telephonic meetings in accordance with open meetings laws and should widely distribute instructions for remotely joining such events. California Gov. Gavin Newsom’s Executive Order N-25-20, for example, authorizes government bodies to “make public meetings accessible telephonically or otherwise electronically to all members of the public seeking to attend and to address” the body.

Public meetings should also, wherever possible, be recorded and made promptly available to the public online. In Pennsylvania, for example, the Office of Open Records has issued guidance that “strongly recommends that any agency holding such a meeting record the meeting and proactively make the recording available (preferably online) so that a full and complete record of the meeting is available to the public.”

Court Access

Federal and state courts, like all public institutions, are taking proactive steps to fight the spread of COVID-19. The Reporters Committee for Freedom of the Press supports these efforts.  However, particularly in times of national crisis, visibility into the operations of government, including the judiciary, is crucial. The Reporters Committee is working to track the orders, advisories, and announcements of state and federal courts implementing new procedures to combat the spread of the virus, and it has also received a number of questions about how these new measures impact press and public access to judicial proceedings and court records.

What steps have courts taken so far, and how can these measures be implemented in a way that ensures continued press and public access to judicial proceedings?

Currently, while some courts remain open to the general public, others have placed limits on the number of people who may attend court proceedings. Still other courts have closed to the public altogether, limiting physical attendance to participants, judges, court staff, and in some cases, members of the media. Many courts have opted for some combination of: (1) restricting segments of the public infected with, or likely to have been infected with, COVID-19 from entering courthouses; (2) closing proceedings to the public; (3) authorizing the use of teleconferences for judicial proceedings that would otherwise have been held in open court; and (4) postponing or continuing proceedings.

For courts adopting measures designed to limit physical access to courthouses to slow the spread of the virus, the Reporters Committee makes the following recommendations:

  1. To the extent consistent with guidance issued by the Centers for Disease Control and Prevention (CDC), orders closing courthouses to the general public should exempt members of the media.
  2. Courts should provide live video or, at a minimum, audio of court proceedings, such as appellate arguments. For example, the U.S. Court of Appeals for the D.C. Circuit, which issued a notice on March 13 restricting physical access to its courthouse to “judges, court staff, members of the media, and visitors with official business with the courts,” will continue its normal practice to livestream audio of all oral arguments. This practice should be extended to all proceedings that would normally be held in open court. In addition to live video or audio (or if livestreaming is not technically feasible), courts closed to the public should provide same-day video or audio recordings of their proceedings. For example, the U.S. Court of Appeals for the Federal Circuit issued an advisory on March 16 stating that only “(a) arguing counsel and parties with a scheduled in-person hearing, and (b) credentialed members of the press” will be permitted into courtrooms for arguments and hearings. The Federal Circuit’s advisory states that the Clerk’s Office will post audio recordings of arguments and hearings on that court’s website at the conclusion of each argument or hearing.
  3. To the extent that courts authorize the use of videoconference and/or teleconferences for arguments or hearings that would otherwise have been held in open court (for example, the U.S. Court of Appeals for the Third Circuit announced on March 18 that parties may file motions to appear by audio conference), members of the media should be permitted to dial in to those conferences. Recordings of such conferences should also be made electronically available to the public as soon as those proceedings end.
  4. A number of jurisdictions, including the U.S. Supreme Court and the U.S. District Court for the Eastern District of Virginia, have postponed or continued some or all in-court proceedings. The Reporters Committee urges courts to provide the public with notice of any such postponements or continuances.
Will press and public access to judicial records be affected by these preventative measures?

Court records made available online — such as those in federal courts filed through CM/ECF and available via PACER — should continue to be available to members of the public electronically. Courts that charge fees for electronic access to court records (beyond the cost of dissemination) through systems like PACER should consider suspending such fees while restrictions on physical access to courthouses for the public remain in place. In addition, courts permitting hearings and other judicial proceedings to take place via teleconference should make transcripts of those proceedings available electronically to the public for free.

Access to records in courts where electronic records are not typically available to the public through systems like PACER should take reasonable steps to make court records available to the public electronically on court websites or, at a minimum, upon request.

If court staff has shifted to working remotely to promote social distancing, it is incumbent upon courts in such situations to provide their employees, the press, and the public with a mechanism to make requests for access to court records and to authorize remote staff to disseminate those records via email or some other electronic means.

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