Governments Delay Access to Information Due to COVID-19

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Access to government information is becoming a coronavirus casualty in some countries.

Governments around the world, some of which have sent workers home, are announcing interruptions in responding to requests. Journalists and others requesting information are being told to expect delays in more than a dozen countries, but press freedom advocates warn that countries are taking big steps backward just when the free flow of information is most needed.

One of the harshest restrictions is in Brazil. President Jair Bolsonaro, through a “medida provisória” (provisional measure), decreed that government officials are not obliged to answer any freedom of information (FOI) requests during the COVID-19 outbreak if the official needs be at the office to access the information requested. On March 31 the Supreme Court suspended the decree.

More than 70 civil society organizations in Brazil put together a public statement asking parliament and the federal government to repeal the decree. The groups also protested that while the decree aims to prioritize responses to requests related to the pandemic, it does not specify how this would happen, if the response time would be shorter, and what the criteria are for this prioritization. The March 24 statement includes a variety of other objections, concluding that the decree violates the constitutional right of access to information of collective interest.

In Serbia, the state of emergency doesn’t officially modify access to information, but with civil servants out of their offices, the system’s functioning is limited. A request from Transparency Serbia, challenging an official statement that the number of ventilators/respirators in medical facilities is a “state secret,” has not been answered.

Countries Delay Response Times

Perhaps the most pro-transparency response came in New Zealand, where the ombudsman — which handles complaints about state agencies — cautioned that circumstances would be challenging and urged cooperation, and suggested the prioritization of requests concerning public health. Complementing this message, Minister of Justice Andrew Little tweeted, “The Official Information Act remains important for holding power to account during this extraordinary time.”

That approach was the exception. Many countries have issued statements warning of delays, some specific, others open-ended. Similar things are happening with subnational governments.

This article includes information on Australia, Brazil, Canada, El Salvador, India, Italy, Hong Kong, Mexico, New Zealand, Romania, Serbia, the United Kingdom, and the United States. GIJN will keep an eye out for countries backtracking on information access during this time; if you have a tip, please email us here.

In Mexico, the National Institute of Transparency suspended deadlines to respond to information and personal data requests for nearly a month, according to an article in El Universal.

In Romania, a state of emergency presidential decree includes a provision extending the time period for responding to freedom of information requests from 10 days to 20 days. Responses to journalists are supposed to be handled in a day, which would now be two days, but an expert on the system noted that legal time-frames were often ignored.

The Italian government suspended action on requests that are “not urgent and cannot be postponed” from March 8 to May 31, but did not specify whether COVID-19-related requests fall under the “urgent” category.

Reaction Varies in US

In the United States, some agencies are curtailing FOI operations. Some made their announcements during the annual Sunshine Week celebrating transparency.

The State Department’s processing of records “has ground to a virtual halt,” reported Josh Gerstein on March 27 in Politico. Meanwhile, the Federal Bureau of Investigation, citing COVID-19, told requesters that it would no longer accept emailed requests and sent its FOI processing staff home, according to BuzzFeed News’ Jason Leopold.

Unlike the FBI, however, most agencies said they now prefer email requests.

Some agencies don’t expect delays, according to a log of US restrictions at a dozen agencies which being kept by the Reporters Committee for Freedom of the Press. But some do. The Interior Department said answers “will very likely be delayed” while State Department operations are “suspended.”

This Columbia Journalism Review overview by Richard Saleme and Nina Zweig refers to one US journalist, Emma Best, who has fired off dozens of FOI requests to agencies to ask about the impact of COVID-19 on FOIA operations.

US Groups Urge Transparency

With delays also occurring at the state and local levels, more than 130 US freedom of expression groups signed a statement addressing the importance of government transparency during the COVID-19 pandemic.

“During a public health crisis, transparency is especially important to ensure the availability of information about the government’s response to the crisis,” according to the Reporters Committee, which covered FOI, open meetings, and other topics in a position paper, Press Freedom and Government Transparency during COVID-19.

“Federal agencies should liberally grant expedited processing of FOIA requests related to COVID-19 from members of the news media under the statutory definition of compelling need,” the group wrote, also urging proactive disclosure.

Transparency International’s US Secretariat sent 25 anti-corruption measures to Congress. Included among many disclosure suggestions is to, “extend Freedom of Information Act and Privacy Act (FOIA/PA) obligations and requirements to private-sector companies that receive federal contracts.”

Delays Expected in Many Countries

In some countries, agencies have warned of delays, without specifically lengthening deadlines.

Requests in Canada are being placed “on hold for the time being,” according to a response sent to requester Ken Rubin and a National Post article.

The UK Information Commissioner’s Office noted a week ago that some responses would be delayed and that it will be lenient with government agencies. It later advised that requests sent by mail are not being reviewed, urging contact online or by phone.

The Australian Information Commissioner posted: “We also acknowledge that the impact of the coronavirus may affect the ability of agencies to meet statutory time-frames for processing freedom of information requests. We recommend agencies consider a range of measures to help meet these obligations.”

The Hong Kong Office of Ombudsman, which handles appeals of the FOI law, announced its office “will only provide basic and limited service.”

In India, the Central Information Commission said it would handle appeals based on written submissions of parties while the country is in lockdown mode, the Deccan Herald reported. “Hearing will be limited to urgent matters through video and audio conference…,” the appellate body said, “Personal appearance of parties or their representatives is dispensed with.” The CIC also said it plans to explore “intensive use of technology of tools.”

In El Salvador, the government passed a decree suspending the majority of judicial and administrative procedures, likely affecting the work of the Salvadoran Access to Information Agency.

New Zealand Minister Supports Transparency

The New Zealand ombudsman, which the Minister of Justice posted about on Twitter, issued a statement urging requesters to be understanding and for agencies to continue to make their best efforts to provide answers.

“I don’t want to place any unnecessary burden on agencies or ministers but at the same time, big decisions are being made in the wake of the global outbreak and they must be in a position to respond to requests from the media and others for information about those issues as soon as possible,” wrote Chief Ombudsman Peter Boshier. “There may be a need for even greater transparency when a decision involves public health and safety or those that affect someone’s financial circumstances, housing situation or family circumstances. I have told my staff to give these kinds of complaint priority.”

A list of national FOI delays being caused by COVID-19 is being maintained by the Centre for Law and Democracy, a nongovernmental organization in Canada.

UN Rapporteur, Others Back Transparency

The UN Special Rapporteur on freedom of expression and colleagues issued a statement March 19 urging disclosure of information, internet access, and the protection of journalistic freedom. It said in part:

“First, it is essential that governments provide truthful information about the nature of the threat posed by the coronavirus. Governments everywhere are obligated under human rights law to provide reliable information in accessible formats to all, with particular focus on ensuring access to information by those with limited internet access or where disability makes access challenging.”

In a statement, Human Rights Watch noted that, “Governments are responsible for providing information necessary for the protection and promotion of rights, including the right to health.” Meanwhile, Transparency International expressed concern about the prospects for more corruption, stating: “It is essential that transparency, openness, and integrity are maintained and extended across the health sector.”

Despite the calls for transparency, FOI activists are not optimistic. GIJN, meanwhile, will keep an eye out for countries backtracking on information access. Have a tip on this? Email us at hello@gijn.org.

This article first appeared in eyeonglobaltransparency.net, a blog by the author on international transparency issues. Follow @tobyjmcintosh.

Toby McIntosh is GIJN’s Resource Center senior advisor. He was with Bloomberg BNA in Washington for 39 years. He is the former editor of FreedomInfo.org (2010-2017), where he wrote about FOI policies worldwide, and serves on the steering committee of FOIANet, an international network of FOI advocates.