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Most government agencies across the region are no longer providing records to the public as is typically required under a state law known as the California Public Records Act amid the coronavirus pandemic. Even requests for records related to the crisis that exist electronically are being largely denied indefinitely.
Operations at cities, school districts, special districts and county agencies have wound down or gone remote in compliance with public health orders to shelter at home as much as possible to slow the spread of the virus.
No action has been taken to change or waive state laws requiring public agencies to produce records sought by the public within 10 days, with some exceptions, though the League of California Cities is asking Gov. Gavin Newsom for a legal reprieve.
Many local governments argue they don’t have the capacity to respond right now or that the public interest is best served by doing other things to respond to the emergency.
They argue providing emails related to the novel coronavirus is not essential right now. Government transparency advocates disagree, and argue public records access is especially vital during crisis times like these.
Last month, Voice of San Diego filed public records requests with 83 public agencies across San Diego County seeking email correspondence related to the pandemic.
The request was sent to the county government, all 18 San Diego County cities, all 42 public school districts, the County Office of Education, public hospitals, all five community college districts, three public universities, some transportation agencies and other special districts, like the San Diego County Water Authority.
VOSD hopes to see how public officials first became aware of the virus, when it became clear it would upend society and how officials responded in the early days, among other things. The early government response to the region’s deadly Hepatitis A crisis in 2017 as revealed through emails proved extremely valuable and spurred a new state law to improve government communication in public health crises. (Public officials have said they’ve learned from that crisis and it’s helping them respond better to this one.)
Fifty-seven out of 83 agencies responded to VOSD’s March 20 request saying the virus would delay their response. Most indicated the request would not be processed until the emergency orders from the governor were lifted or normal business resumes at some unknown date in the future. Another 10 agencies didn’t respond after two weeks, other than a couple that sent autoreplies.
“County staff is focused on providing essential services to county residents for the foreseeable future. Due to this ongoing emergency, staff does not have the capacity to respond to your request until further notice,” San Diego County spokesman Michael Workman said in an email. “The public interest in receiving records at this time is outweighed by public interest in having county personnel free to handle this ongoing emergency. We do not anticipate responding to your request until the emergency order has been lifted.”
Staff at a couple agencies, including the Port of San Diego and Cal State University San Marcos, have indicated they are actively working to gather and review the records. Port staff offered to remove emails unrelated to the coronavirus that might inadvertently be captured in the search, such as standard anti-computer virus disclaimers. The city of Carlsbad, despite indicating there would be a delay due to the coronavirus, has staff working on the request remotely.
A handful of other agencies provided a date the records would be provided and didn’t mention any delay due to the virus.
Just five cities and one school district produced emails so far. The city of Del Mar responded in just seven days. The cities of Chula Vista, Vista, Santee and San Marcos followed, as well as the La Mesa-Spring Valley School District.
NBC San Diego reported earlier this week that agencies were delaying their responses, including one federal agency it sought records from.
A separate request from VOSD to the county for contracts with hotels and motels to house people during the pandemic was also delayed indefinitely.
And it’s not just new records requests that are being delayed.
Poway Unified School District has put off VOSD’s virus-related email request, and an earlier election-related public records request made on March 2, indicating the virus now prevented them from producing those records too.
The city of San Diego is processing VOSD’s virus email request, but delaying other requests from VOSD sought earlier this year.
The delays – many without any indication of when records will be provided – are legally and morally concerning, said David Snyder, executive director of the Bay Area-based nonprofit First Amendment Coalition.
“We are at a time now when government power is at its absolute peak,” Snyder said. “Transparency right now is more crucial than it has been in a long time and agencies need to recognize there is a constitutional right of records access in California so it is not something that can be easily brushed aside.”
Snyder said he’s worried that “some agencies are just using this crisis as a free pass.”
Snyder said even if agencies can’t provide in-person opportunities for the public to inspect public records like they normally would, “the right of access does not stop at the ability to walk into a building. Many employees offsite have or at least should have access to records remotely … If they do, they should be looking for those records and responding to those requests.”
Still, because enforcement of the public records law is left to the courts, which are largely closed statewide, agencies shutting the doors on records requests are unlikely to face any immediate legal consequences.
“Our goal is to educate agencies that there is a California constitutional right at issue here and the right of access to public records is a core right of Californians and therefore providing those records is an essential service that governments must provide even in times of crisis,” Snyder said.
Jesse Marx and Lisa Halverstadt contributed to this report.