The Right of Access to Information in the Time of COVID-19

“Openness in government is essential to the functioning of a democracy.”^[1]  This straightforward declaration by the California Supreme Court bears repeating during the COVID-19 health crisis.  “Newspapers, television, radio, and other media services” have been deemed “essential” by the nine Bay Area counties^[2] and the State,^[3] but journalists say some local agencies are refusing to respond to public records requests during this critical time.^[4]

Some logistical issues are to be expected, as public agencies and private businesses alike face challenges in adapting to remote work on a massive scale, and agency staff are tasked with COVID-related work on top of their other assignments.  But some local agencies have gone so far as to claim either they should not have to comply with certain provisions of the open government laws, or they should not have to comply at all, until the crisis is over.

For example, the cities of Fresno, Fremont, Los Altos, and Martinez reportedly have said they would not fulfill requests for public records until the COVID-19 crisis passed,^[5] although Fresno reconsidered a week later and said it would respond, after The Fresno Bee pushed back.^[6]  Last month, the mayor of the City and County of San Francisco issued a proclamation suspending certain provisions of Measure G, a 1999 ballot initiative that amended San Francisco’s Sunshine Ordinance to increase government transparency and accountability.^[7]

Such actions are cause for alarm.  As state and local governments issue orders restricting civil liberties in response to the health emergency, it is crucial to preserve the public’s trust by protecting the fundamental right of access.  Now is not the time to pump the brakes on government transparency and accountability.

The Fundamental Right to Access Information Is Protected by Statute and the California Constitution

In enacting the California Public Records Act (“CPRA”), the Legislature found that “information concerning the conduct of the people’s business is a fundamental and necessary right of every person in this state.”^[8]  The CPRA generally provides for broad access to public records, while allowing public agencies to assert non-mandatory exemptions for certain materials.^[9]  The CPRA does not prevent local governments from enacting greater protections within their jurisdiction.  In addition, the voters may exercise their initiative power to grant themselves greater rights than those provided under the CPRA.^[10]

In addition to the CPRA, the Bagley-Keene Open Meeting Act and the Ralph M. Brown Act also protect the people’s right of access by requiring open and public meetings.^[11]  The Bagley-Keene Act applies to multimember state bodies,^[12] such as boards and commissions, and the Brown Act applies to local legislative bodies.^[13]  For both acts, the Legislature found and declared:

The people of this State do not yield their sovereignty to the agencies which serve them.  The people, in delegating authority, do not give their public servants the right to decide what is good for the people to know and what is not good for them to know.  The people insist on remaining informed so that they may retain control over the instruments they have created.^[14]

In 2004 and 2014, California voters reaffirmed the importance of open meetings and the right to access public records by making these rights part of the State Constitution.^[15]

Emergency Powers of the Governor and Local Governments

The California Emergency Services Act^[16] (“ESA”) authorizes the Governor to proclaim a “state of emergency.”^[17]  In a state of emergency, the Governor may (among other things) make orders necessary to carry out the ESA’s provisions,^[18] and “suspend any regulatory statute, or statute prescribing the procedure for conduct of state business, or the orders, rules, or regulations of any state agency,” where “strict compliance” would “prevent, hinder, or delay the mitigation of the effects of the emergency.”^[19]  In response to the COVID-19 health crisis, Governor Newsom proclaimed a “state of emergency” on March 4, 2020.^[20]

The ESA also authorizes local governing bodies to proclaim a local emergency when “conditions of disaster” or “extreme peril to the safety of persons and property” exist and are beyond the local jurisdiction’s control, requiring the combined forces of other political subdivisions to combat.^[21]  In such cases, the local governing body may promulgate “orders and regulations necessary to provide for the protection of life and property[.]”^[22]  Numerous local governments in California have issued proclamations declaring the existence of a local emergency.^[23]

During any kind of ESA emergency, local health officers may take any “preventative measure” necessary to preserve public health in their jurisdiction.^[24]  In addition, the Health & Safety Code authorizes local health officers to declare a health emergency “whenever there is an imminent and proximate threat of the introduction of any contagious, infectious, or communicable disease[.]”^[25]  The “shelter-in-place” orders operative in the nine Bay Area counties were issued under these provisions.^[26]

To Maintain the Public’s Trust during the COVID-19 Crisis, Transparency and Accountability Must Be Preserved

The ESA grants broad powers, but the government still must exercise its authority “consistent with individual rights and liberties.”^[27]  Even under the standard applied by the U.S. Supreme Court in Jacobson v. Commonwealth of Massachusetts, which would not necessarily control a challenge under California law or the California Constitution, the measures taken to combat an epidemic (1) cannot go “beyond the necessity of the case, and, under the guise of exerting a police power ... violate[] rights secured by the Constitution,” (2) cannot have “no real or substantial relation” to protecting public health and safety, and (3) cannot be “beyond all question, a plain, palpable invasion of rights secured by the fundamental law[.]”^[28]

Although Governor Newsom recently waived certain provisions of the Brown Act to better enable public meetings through teleconferencing or other electronic means,^[29] he has not invoked the ESA to suspend any part of the CPRA.  Cutting off the fundamental right of access to records would undermine the public’s trust in government, and it would do nothing to improve public health and safety.  Restrictions on the type of content the public is allowed to see are particularly suspect.  The COVID-19 crisis does not necessitate abrogating a fundamental right that is essential to our democracy.