Sunshine Laws Behind the Clouds: Limited Transparency in a Time of National Emergency
68 Pages Posted: 30 Nov 2022
Date Written: November 23, 2022
The COVID-19 pandemic dramatically changed the way citizens lived their lives, businesses operated, and governments functioned. With most people forced to stay home, the pandemic also disrupted how people received their news and other essential information. Public records and public meetings had to adapt to face the growing challenges in a locked-down world. While some governmental bodies were able to keep up with the threat that COVID-19 posed against transparency, others either failed to acclimate to the new normal or actively took advantage of the circumstances to limit how much the public knew not only about the crisis, but about other public matters as well.
During the pandemic, many state officials radically transformed public records laws and public meetings laws through executive action. Executive orders gave governors flexibility when tackling the widespread emergency, but this unconstrained power also reduced government transparency. As a result, people’s valuable insights and opinions were silenced during a time they were most needed.
States had mixed reactions to COVID-19. Some welcomed the change to remote public meetings and used technology to keep the public engaged, while others took a passive approach that cut the public off from meetings. Regarding public records, several governments restricted or eliminated in-person access and made electronic copies of records a costly and impractical option. The experience since early 2020 makes clear that states should ensure that government transparency is a top priority — even during a state of emergency in which problems are indefinite and insurmountable. This goal can be achieved by enacting laws and establishing policies that balance foreseeably limited resources with the heightened demand for openness and accountability created by a public health crisis. This Article proposes a model statute that, when implemented and followed by state and local governments, would increase transparency and reduce the likelihood that officials will use another emergency event as an excuse to conceal their actions.
Keywords: public records, public meetings, sunshine laws, pandemic, COVID-19, executive orders, public health crisis, gubernatorial powers, emergency powers
JEL Classification: H10, H11, H12, H70, H75, H79, H80, H83, H89, I10, I18, I19, I30, I31, K10, K19, K20, K29, K30, K32,
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