Santa Clara County is refusing to release records related to COVID-19 because “it is not in the public interest” for county employees to divert their time from the pandemic to collect and review public documents.
But government watchdog groups say that excuse is unacceptable. County officials have a legal obligation to fulfill requests under the California Public Records Act.
“We have seen far too many government agencies trying to use the pandemic as a reason to not respond to Public Records Act requests,” said David Snyder, executive director of the First Amendment Coalition. “While there certainly may be some justifiable delay — government agencies are overtaxed like the rest of us — the pandemic provides no excuse for failing to respond to records at all or to delay for weeks or months where that kind of delay otherwise wouldn’t be necessary.”
San José Spotlight on Jan. 6 requested specific copies of emails from county lawmakers to public health officials related to the county’s shelter in place order. Instead of turning over the public records, Deputy County Counsel Julia Spiegel said county employees don’t have time to gather and review the records.
“Given the ongoing public health emergency, the need to review the requested records for exemptions and the sensitivity of the content, it is not in the public interest for County employees focused on the County’s crisis response to divert their time to collecting and reviewing records responsive to your request,” Spiegel wrote.
Although Gov. Gavin Newsom loosened some of the state’s open meeting laws due to the pandemic, he has not suspended the public records act or modified any of its requirements.
This means counties and cities still have to follow the state law, regardless of the pandemic.
Government agencies can use COVID-19 to delay the release of public records, experts say.
“What is an acceptable delay is a really difficult question to answer,” Snyder said, explaining that counties and cities must answer requests within 10 business days, but don’t need to send the records by that time.
“They do have on occasion legitimate manpower concerns where there’s going to have to be someone to sift through thousands and thousands of emails to redact stuff that they’re not allowed to release or that they’re allowed to withhold,” he added.
But as counties and cities may face reasonable delays, Snyder said government staff must do everything in their power to fulfill a request.
“The problem here is they haven’t given you any timeline at all,” Snyder said. “They just basically said we’re not doing anything until further notice, and that’s not an acceptable response. They have an obligation to do everything in their power to respond to requests.”
San Jose also delayed records
San Jose similarly declined to disclose correspondence between Mayor Sam Liccardo and Former Police Chief Eddie Garcia requested by San José Spotlight in May 2020 because of the strain on resources from the city’s COVID-19 response.
“This emergency necessarily creates an unusual circumstance which impacts the City’s ability to provide services that are not immediately essential for the protection of public health and safety,” Jessica Lowry, a San Jose executive analyst, wrote in an email. “The city is marshalling all of its resources to respond to COVID-19 and these actions have temporarily reduced the capacity of the city to respond to public records requests.”
Although Lowry said requests “will be responded to as time, staffing and prioritization allows,” San Jose, like Santa Clara County cannot withhold records indefinitely.
Other governments, such as the city of Los Angeles and San Diego County, have also withheld public records using COVID-19 as the reason to not disclose information.
Los Angeles asked reporters to postpone records requests until the COVID-19 pandemic is over, according to reporter Scott Morris.
Made my first ever request with the city of Los Angeles today. Not only does the city have a stock COVID excuse sent automatically after receiving a request, it asks people not to make requests at all until the pandemic is over. pic.twitter.com/LNMfpHQZIg
— Scott Morris (@OakMorr) December 22, 2020
Snyder said the release of these records is more vital than ever, as the public has a right to know what’s going on behind closed doors during the health crisis.
“The public needs to know about how the government is responding to the COVID crisis,” Snyder said. “The Public Records Act is more important now for a broader range of people than it was prior to the pandemic, which is all the more reasons that government agencies should not be trying to use the pandemic as a way of avoiding their obligations.”
Contact Mauricio La Plante at [email protected] or follow @mslaplantenews on Twitter.