Safeguarding Democracy In a Pandemic
Statement from the Better Government Association, Reform for Illinois and Common Cause Illinois:
With the threat of COVID-19 looming over daily life, governments throughout Illinois have resorted to extraordinary emergency measures. Schools are closed. Families are homebound. Services are curtailed. Public meetings are canceled. The state legislative session is paused.
The coronavirus outbreak presents unprecedented challenges, and we appreciate the proactive approach of our state and local leaders so far. Restrictions are needed to keep public employees and citizens safe, and regular communication promotes cooperation.
Still, these circumstances can test our commitment to indispensable democratic norms: The right to know what our elected representatives are doing on our behalf, through open meetings and open records. The right to participate in those decisions and to hold our elected officials accountable.
As good government advocates, we are available to help public officials as they work to balance these priorities in a time of uncertainty. To begin, here are some guidelines for Illinois residents and their leaders at all levels:
Freedom of Information
Illinois Attorney General Kwame Raoul has posted four pages of guidance for public bodies during the state emergency. It advises that “public bodies should continue to comply with FOIA and respond to each request promptly, to the extent they are able,” but acknowledges the limits on staff and resources.
To prevent the spread of the virus, most public buildings are closed and employees are working remotely. Others may be sick and unable to work. Some records might be hard to access, and some requests need more than one set of eyes before they can be fulfilled.
The Illinois FOIA allows for delays or even exceptions under such circumstances, but a public body can’t unilaterally grant itself an exception or an indefinite delay.
In general, FOIA allows a public body five days to respond to a request and another five days’ extension if it asserts the need. Beyond that, the law allows requesters and the public body to work out a reasonable timetable themselves. Such accommodations are common, even in the absence of a global pandemic.
Current circumstances call for extra patience and flexibility in those negotiations. Delays should be expected and reasonable extensions granted. But blanket denials asserting that FOIA is too burdensome for these times are the opposite of what is needed. A public health emergency calls for more transparency, not less.
In his March 16 executive order, Gov. J.B. Pritzker suspended parts of the Open Meetings Act that require officials to be physically present at government meetings and that limit remote participation. Waiving those rules enables public bodies to convene to take actions to keep government running (though the suspension doesn’t apply to the General Assembly).
This emergency workaround must be balanced against the public’s right to observe and participate in government business. Teleconference, videoconference and other electronic gatherings challenge the OMA requirement that meetings must be “open and convenient” to the public and that citizens have an opportunity to comment.
To assure public participation as much as possible, government bodies should:
Conduct only essential business via remote meetings. Postpone non-urgent actions until circumstances allow wider public participation.
Livestream wherever possible and/or record and post the proceedings to be watched later.
Begin with a roll call that includes those participating remotely (or have the chair announce the names of remote participants).
Provide avenues for public comment — live during the meeting or submitted in advance to be read aloud.
Provide ample public notice of meetings, including instructions on how to access them electronically and how to submit public comment.
In executive session, have remote participants affirm that they are alone.
Suspend the meeting if technical problems arise.
- Access to policymakers should be the same for the general public as for lobbyists.
COVID-19 concerns and restrictions complicated the March primary election in Illinois and elsewhere. Early voting and vote-by-mail surged as worried citizens tried to avoid Election Day crowds. Still, overall turnout was low. Many election judges were no-shows, and some polling places had to be moved at the last minute.
Elections officials should learn from this chaotic primary and move quickly to assure a smoother election in November, following the national trend toward more remote options and less reliance on in-person voting.
It’s important for the election to go forward as scheduled and for voters to have every opportunity to participate.