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In COVID-19 crisis, governments struggle with openness

Wisconsin DOJ reminds governments to obey open meetings laws

April 17, 2020 by Richard Moore

The COVID-19 public health crisis is causing government officials across the nation to struggle with transparency as they try to find ways to conduct business without violating open meetings laws designed to ensure public participation.

It’s an uneven struggle at best, as some governments are working to find a balance, while other governments have contemplated suspending open government laws. The contest is an age-old one during times of emergency in democratic societies, as officials walk a very fine line between prudence and oppression.

It’s where the line is drawn that matters.

This week, in Wisconsin, as Gov. Tony Evers unleashed a torrent of restrictions on public activities, from closing schools to banning gatherings of 10 people or more, and as county and local leaders declared their own states of emergency, officials began asking the state Department of Justice if and how the open meetings law might apply during Wisconsin’s declared state of emergency.

This week, in an advisory, attorney general Josh Kaul’s Office of Open Government had a quick answer: The law still applies, though officials do have flexibility to protect their health and that of the public.

Simply put, the advisory stated, government meetings can be held by telephone conference calls if they ensure the public has a right to participate in those calls.

“Governmental bodies typically can meet their open meetings obligations, while practicing social distancing to help protect public health, by conducting meetings via telephone conference calls if the public is provided with an effective way to monitor such calls (such as public distribution, at least 24 hours in advance, of dial-in information for a conference call),” the advisory stated.

The advisory reminded officials the law requires all meetings of all state and local governmental bodies be publicly held in places the public can reasonably access, and that meetings must provide at least 24 hours notice to the public about the time, date, place, and subject matter of the meeting, generally at least 24 hours before it begins. 

That said, the advisory continued, meetings do not have to be held in government buildings, so long as the public could access the meeting.

“As such, DOJ’s longstanding advice is that a telephone conference call can be an acceptable method of convening a meeting of a governmental body,” the advisory stated. “More recently, DOJ guidance deemed video conference calls acceptable as well.”

But, when an open meeting is held by teleconference or video conference, the public must have a means of monitoring the meeting, the advisory continued. 

Accordingly, the DOJ concluded, “under the present circumstances, a governmental body will typically be able to meet this obligation by providing the public with information (in accordance with notice requirements) for joining the meeting remotely, even if there is no central location at which the public can convene for the meeting.”

Still, the DOJ advisory cautioned, meetings conducted in such a way, while permissible during an emergency, are not ideal ways for governments to conduct business. 

“A governmental body conducting a meeting remotely should be mindful of the possibility that it may be particularly burdensome or even infeasible for one or more individuals who would like to observe a meeting to do so remotely — for example, for people without telephone or internet access or who are deaf or hard of hearing — and appropriate accommodations should be made to facilitate reasonable access to the meeting for such individuals.”

To be clear, the DOJ emphasized, providing only remote access to an open meeting is not always permissible. 

“Where a complex plan, drawing, or chart is needed for display or the demeanor of a witness is significant, a meeting held by telephone conference likely would not be ‘reasonably accessible’ to the public because important aspects of the discussion or deliberation would not be communicated to the public,” the advisory stated. “Further, the type of access that constitutes reasonable access in the present circumstances, in which health officials are encouraging social distancing (including avoiding large public gatherings) in order to mitigate the impact of COVID-19, may be different from the type of access required in other circumstances. Ultimately, whether a meeting is ‘reasonably accessible’ is a factual question that must be determined on a case-by-case basis.”

New York and California

Open government advocates in New York are less impressed by New York Democratic Gov. Andrew Cuomo, who has suspended a portion of the open meetings law there.

Initially, Cuomo granted two health related agencies the ability to hold meetings remotely and without a quorum, so long as there was remote access and public comment allowed, but his latest executive order allows any public body to meet and take actions authorized by the law without permitting in-person access to meetings. 

Such meetings can now be held remotely by conference call or similar service, provided that the public has the ability to view or listen to such proceeding and that such meetings are recorded and later transcribed.

That’s similar to Wisconsin’s procedure, though notably neither state necessarily requires remote meetings allow public comment, i.e., allowing participation in a conference call rather than merely listening.

Cuomo’s executive order drew mild criticism from an open-government group, Albany Reinvented.

“Gov. Cuomo’s first executive order narrowly suspended (open meetings law) requirements for specific public health bodies, which were still required to webcast their meetings and allow public comment,” the group said in a statement. “However, the updated executive order is less in the spirit of the open meetings law. Reinvent Albany believes that at a minimum, public bodies that currently accept public comment should continue to do so, even if their meetings are not held in person.”

Additionally, the group observed, new powers granted to the governor give him enormous latitude to suspend any law that he feels interferes with fighting COVID-19. 

“We ask that the governor continue to use this power responsibly and keep in mind the intent of FOIL and OML,” the group stated. “This is not a war against a human enemy, and in a democracy, the public has the right to be kept informed.”

The COVID-19 emergency is underlining how important it is for government to communicate in a clear, timely and honest way, the group stated. 

“Open government is not a luxury, it is one of the core tenets of a democratic society,” it stated.

It should be noted Wisconsin statutes also give the state’s governor broad powers to suspend any law and take unilateral action during a state of emergency, which is limited to 60 days unless extended by a joint resolution of the Legislature.

According to the statute, the governor can “issue such orders as he or she deems necessary for the security of persons and property.”

Over in Massachusetts, Gov. Charlie Baker also suspended portions of the open meetings law, suspending the requirement that meetings be conducted in a public place that is open and physically accessible, if there are alternative means to ensure public access, such as telephone and video conferencing.

However, in Massachusetts, a municipality can declare economic hardship and simply post online a transcript or recording or other record of the meeting. Quorum requirements were suspended.

In California, the state’s sunshine law already provides a way for continuing access for the public during the emergency. While the state’s law requires all government meetings be open and public, teleconference meetings are allowed.

For teleconference meetings, the meeting agenda must identify various teleconference locations and each location must be available to the public. 

Under the recently declared California emergency declaration, local governing bodies may hold public meetings telephonically or electronically, but the government must still provide one physical publicly accessible location where the public can participate.

But virtual and remote meetings pose their own threat, open government advocates say.

For one thing, many local governments actually prohibit the use of remote meetings because they once thought — in a time when there was far less internet connectivity — that remote meetings would be used as a way to diminish public participation.

That’s less a threat these days, but still a real possibility, especially in rural areas where many citizens still lack good or any internet access.

There’s also the question of cost. Many small local governments don’t have the technology that not only allows the public to attend, but to participate in the meeting.

Yet another problem with teleconferencing is that some contentious issues spark large turn outs for meetings. A public hearing with 100 people in attendance might be technologically possible but might not be practical in some locations.

Transparency from government

Beyond keeping the daily workings of government open, and restraining overreaching executive authority by government entities, the coronavirus has put the spotlight on another aspect of transparency — transparency from the government to the people about the virus and its spread.

In that regard, in South Korea, which has largely contained the spread of COVID-19, government transparency was a front-line defense.

Like in the U.S. the rapid spread of the virus prompted mass closings and pleas for social distancing. They closed schools, banned larger public gatherings, cancelled sporting events, and closed public buildings and parks.

What South Korea did not do was enact travel bans (except for one, travelers from China’s Hubei province) or quarantine its population. The country did not prohibit travel between cities, as happened in China, Italy, and Spain.

What South Korea did do was embark on an ambitious communications crusade with its people. It published the latest findings and advisories daily. It encouraged testing, and launched a mobile alert system for people traveling through certain areas, allowing people to monitor and report symptoms. 

It also developed mobile phone apps delivering reports about where the virus had been confirmed — what theatre or shops patients had visited. They delivered emergency texts and advice, and urged self-isolation in certain areas. 

While some governments were forcing millions into involuntary lockdowns and instituting travel bans — all flirting with or crossing the civil liberties boundary — South Korea used transparency to win public cooperation and enable people to care for themselves and their families.

Meanwhile, a new study in Science measuring the effects of China’s hardline travel restrictions after the discovery of COVID-19 shows them to be largely ineffective.

According to the study, the travel quarantine of Wuhan delayed the overall epidemic progression by only 3 to 5 days in mainland China, while 90% travel restrictions to and from mainland China only modestly affected the epidemic trajectory unless combined with a 50% or higher reduction of transmission in the community.

Richard Moore is the author of the forthcoming “Storyfinding: From the Journey to the Story” and can be reached at richardmoorebooks.com.

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