Love & Sunshine Week in a Time of Coronavirus

It may be the height of irony during Sunshine Week -- the access and transparency community's annual love letter to open records and open meetings laws across our country -- to hear me say the rules of open government might not apply right now.

I've never been one to shy away from the soapbox, to point out inaccuracies, call out bad policy, question practices, or challenge interpretations. It would be fair (though not entirely accurate) to call me an absolutist: all access, all the time!

I don't like it when citizens or the press are given the run around when they seek records or try to attend public meetings. I don't like it when they are charged exorbitant fees, or when deadlines are blown, or when they're locked out of meetings, or when their interest in their community is characterized as being personally or politically motivated.

But that was last week.

Last week, before my son and I both came down with respiratory infections. Before I canceled VCOG's annual conference. Before the school districts closed. Before the highest number of positive tests -- and the first confirmed fatality from COVID-19 -- landed in my James City County backyard.

Before life shifted to a parallel universe that may look the same but most definitely isn't.

Virginia's Freedom of Information Act isn't really equipped for this. It has response timelines that take into account weekends and holidays, but probably not partial shutdowns, skeleton staffs and reduced services.

It has fairly extensive protocols for having a public meeting conference-call during a declared state of emergency by the governor. But the rules were drawn to a narrowly imagined scenario, like downed power lines blocking the roads, or a natural disaster.

What we have now is a shit storm, not a snowstorm.

Now is a time for vigilance, for sure, but it's also a time for allowances. That is, the public's business -- much of it required by statute -- still has to be done. Budgets have to be adopted, contracts need to be agreed to, appointments need to be made and policies need to be adopted and implemented.

But how do public bodies do that if they are simultaneously trying to follow FOIA's rules for open meetings and guidelines set to protect the public’s health?

We've already seen localities cancel meetings outright. Some have closed meetings to the public but have streamed content online. Some have opened their doors but limited the number of people who could attend and arranged the seating to respect calls for social distancing.

These are stop-gap measures that, in my opinion, deserve our indulgence. We need to allow for flexibility as they figure out how to achieve the right balance between serving the public by keeping meetings open and accessible and serving the public by protecting our health and the health of those we will later encounter.

This is not a carte blanche. This is not an opportunity or invitation to ram through business and ideas away from the prying eyes of the public. In fact, the counterbalance to our indulgence is the public body's obligation to actually be MORE transparent. 

Notice of meetings must not be compromised. Streaming meetings is critical. And, I would argue, public bodies must be very public about what it is they are going to do, and then being very public and proactive about what they've just done.

In these uncertain and, for many, frightening times, the reassurance about what is happening is critical to calm fears, quash rumors and confront misinformation.

This Sunshine Week I still wish and advocate for strong open records and open meetings laws. But this week, as we travel this unmapped road together, I will also wish for patience, compassion, honesty and trust. May we all do the right thing.

Note: Del. Rip Sullivan and Sen. Jeremy McPike have asked Attorney General Mark Herring to weigh in on what current FOIA law does and doesn't allow. In assuming the law doesn't allow for electronic meetings on topics other than the governor's declared state of emergency, the two ask, "must the Governor expand his declaration of a state of emergency to
specifically address this issue?"