By Executive Director and General Counsel Colleen Murphy
and Public Education Officer Thomas A. Hennick
The COVID-19 pandemic, which descended on the world in 2020, impacted almost every element of modern times. Government transparency was not spared. As state and municipal buildings were shuttered and employees ordered to stay home, access to government meetings and records became a conundrum.
In Connecticut, technology came to the rescue on the meetings front. Gov. Ned Lamont issued several Executive Orders relaxing some aspects of Connecticut’s open meetings law, primarily the requirement that boards and commissions meet in person, in a public place. Executive Order 7B allowed public agencies to hold meetings remotely “by conference call, video conference or other technology, provided that the public has the ability to view or listen to each meeting or proceeding in real time, by telephone, video, or other technology.” The governor’s order also required that public agencies include instructions on their meeting agendas for the public to gain real-time access and also required public agencies to post the recordings of the meetings on their websites.
As might be expected, there were technical glitches that occasionally derailed access. Agenda typos offered incorrect information for Zoom or WebEx links. Internet connections failed. “Zoom bombs,” when unwanted guests joined meetings for the sole purpose of disrupting the proceedings, occurred enough to cause some boards to institute less-than-welcoming security provisions. Citizens complained about nefarious behavior, including, for example, that board members could not be seen clearly allowing for secret hand signals were being conveyed among them.
But overall, our observation has been that the new paradigm for the meetings of public agencies in Connecticut has increased transparency to a certain extent. We have been told of meeting “attendance” increasing dramatically. Whether this is owed to the fact that most people were staying home anyway with little else to do or because it was easier to attend a meeting from a living room or den than to go to a municipal building at night or in bad weather, we might never know. Most town officials reported increased interest in their activities. Some boards said that three to four times as many people observed their meetings than had ever attended in person before.
The increased meeting participation via virtual platforms during the pandemic caught the attention of the state legislature. In the budget implementer bill passed last June, Public Act 21-2, Section 149 reshaped, at least temporarily, the meetings provisions in the Freedom of Information Act to permit public agencies to continue to hold their meetings virtually, as long as certain access requirements are met.
The key components of the new provisions mirror the intent of the governor’s Executive Order 7B, guaranteeing real time access to public agency meetings. If meetings are to be held solely or in part (hybrid) by electronic participation, the legislature added several requirements for state and municipal public agencies:
- Not less than 48 hours before a regular meeting, agency members and the public must be advised, by way of both the agency website and in the agency office, of the electronic component of the upcoming meeting.
- Not less than 24 hours before the meeting, the agenda for the meeting must be posted per the FOI Act and must include instructions for the public to attend the meeting via electronic equipment.
- Any regular meeting must be recorded or transcribed, and the recording or transcription must be posted on the agency website not later than seven days after the meeting.
- Any member of the public who requests, in writing, a physical location to view the meeting must be provided that location as well as the electronic equipment to attend by the public agency.
The new provisions do not mandate that a public agency offer an electronic component to its meetings but rather leave the decision to each public agency. At present, the new provisions expire on April 30, 2022. The legislature tasked the Connecticut Advisory Commission on Intergovernmental Relations (“ACIR”, a pre-existing public agency) with reviewing the successes and failures of the new provisions and, in consultation with the FOI Commission and other key entities, reporting back to the legislature by February of 2022 with recommendations. It is anticipated that the legislature will make some revisions to the public meetings provisions, based at least in part on what the ACIR reports back.
Transparency did not fare as well when it came to access to public records. The FOI Act was not suspended, but the reality was that with many state and municipal buildings closed and workers not able to access certain records, access in some cases slowed to a crawl or came to a complete halt. Many agencies tried to compensate by scanning paper records and creating electronic copies that could be e-mailed to the requesters. Once buildings began to open or partially reopen, workers were able to fill requests, but a backlog remains. Many requesters have been understanding, but there has been an uptick in complaints that “we’ve waited long enough” and that pandemic excuses have run their course.
One thing is sure, as with all aspects of life, the pandemic has forced government to re-think the way it does business. Of course, it is hoped that in a post-pandemic world, public agencies will use what they have learned during pandemic times to enhance the pro-access aspects that remote/electronic access afford. They can do so by taking certain actions, such as: investing in better quality technology; assuring citizens have affordable access to utilize such technology; providing options for the public to attend meetings, either in person or remotely based upon their own choosing; and taking the time to scan public records so that they may be transmitted quickly and easily to those who request them. Ultimately, how well new standards for virtual meetings work, how quickly records request backlogs are cleared and how well government capitalizes on the pro-access lessons it has learned during this period, will determine the long-term impact of the pandemic on government transparency in Connecticut.