COVID-19 secrecy rampant as agencies clampdown on FOIA

When the coronavirus pandemic swept through the United States earlier this year, the federal government actively worked to curtail the public’s right to information under the Freedom of Information Act (FOIA). Our government ignored, undermined, and blatantly rejected requests for records – all while taking unprecedented measures to control the messaging around the coronavirus and its devastating impact on Americans’ lives.

Government agencies tasked with addressing the outbreak obstructed efforts by Open The Government and our coalition partners to access public records on the pandemic response, eroding the public’s ability to evaluate the effectiveness of the government’s handling of the coronavirus. Our coalition sent 600 FOIA requests since March. We have not received a single document from any federal agency, forcing us to move forward with litigation on some of the requests.

As the government undertakes extraordinary measures in response to the pandemic, journalists, nonprofits, and the public are sending more FOIA requests to shed light on the government’s actions. FOIA is a powerful tool for oversight and transparency on such governmental activity. By federal law, requesters should expect records in response to their requests within 20 business days. However, it’s common for agencies to routinely ignore information requests, miss deadlines, and frustrate the public’s right to know.

Although the law allows agencies to reject FOIA request they deem vague or unclear, too many inappropriately use this excuse in response to requests. The Center for Disease Control, a key agency responsible for organizing the government’s response to coronavirus, seems to have adopted a policy of denying requests on the basis of vagueness, abusing what should be a narrow exemption to accessing records. But concerningly, it’s not just the CDC. Denials and delays have become the rule, rather than the exception, across the federal government.

Unfortunately, suing for records is often the quickest way to obtain documents when agencies violate FOIA. Critical information, such as the disproportionate impact of COVID-19 on African-Americans, was hidden from the public until the New York Times sued for records. However, the public should have ready access to such data without resorting to litigation or having to rely on the media to compile datasets because of the government’s failure to do so. The public has a right to this information, and the responsibility of sorting and publishing this data should not fall on media organizations or non-profit organizations.

To bypass federal agencies’ stonewalling, many requesters in the community have taken to requesting documents from state and local agencies. In some cases, the same unresponsive federal agencies have had records released by local officials who maintained copies. By circumventing unresponsive federal agencies, requesters can get more timely information and skip costly litigation to pursue records – though this workaround doesn’t allow the public a full picture of the federal government’s response to the ongoing pandemic. The approach is complicated by states that have decided to suspend processing public records requests for the duration of the pandemic.

At this critical moment in modern history, the public’s right to information is a necessary part of our response to combating an unprecedented global pandemic. But despite the continued loss of life and a deep and worsening economic recession induced by the coronavirus, federal agencies continue to clampdown on the freedom of information, suppressing effective oversight and transparency in the process.

Too much is at stake to let this continue. The activities undertaken by our government in the fight against COVID-19 are taxpayer-funded and impact the effectiveness of our nation’s response to the pandemic. Across the country, government agencies must be even more forthcoming with the public on information related to the pandemic because Americans’ health and the integrity of our democracy depend on it. We will keep reminding them of this and hold them accountable when they choose to ignore it.

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