Congress Urged To Boost Court Access Amid COVID-19 Crisis

By Allison Grande
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Law360 (April 23, 2020, 10:16 PM EDT) -- More than two dozen open government groups are calling on Congress to fund real-time remote access to federal court proceedings, suspend PACER fees, broaden whistleblower protections and take other steps to ensure the coronavirus pandemic doesn't weaken the public's ability to access vital records or conduct government oversight. 

While the $2 trillion Coronavirus Aid, Relief and Economic Security Act that was enacted last month contained several important transparency and oversight requirements, "it is clear that much more is needed to protect the public's access to information and strengthen meaningful oversight," the Electronic Privacy Information Center, Fix the Court and 24 other advocacy groups argued in a letter sent Tuesday to the leaders of the U.S. Senate and House of Representatives.

"During this time of national crisis, it is vital that the public has timely access to information and that oversight mechanisms are as robust as possible, so that errors and abuses that threaten public health can be swiftly rectified," the groups argued.

They urged Congress to include in their next legislative response to the COVID-19 pandemic eight measures to achieve this objective, including several steps to promote court access. 

The pandemic has "severely impacted public access to court proceedings and records," the groups noted, as most courts have limited or suspended their in-person operations and have moved to conduct the majority of their business remotely. 

The groups called on Congress to allocate funding for federal courts so that they can provide live or same-day remote access to court proceedings and give prompt notice of postponements. Additionally, "since the access terminals the public can typically use to view court records for free are not available, Congress should suspend PACER fees" that are required to view documents on the online filing system for federal courts, the groups urged. 

Congressional leaders should also work to bolster protections for whistleblowers and inspectors general, according to the groups.

They're asking lawmakers to expand whistleblower protections "to cover any individual who presents evidence of misuse of COVID-19 recovery funds, whether they are recipients of covered funds or not" and to ensure that inspectors general, including the new watchdog created by the CARES Act, are protected against removal without cause. 

The groups also highlighted the impact that the pandemic is having on already widespread processing delays related to the Freedom of Information Act, and pushed for Congress to increase FOIA offices' funding, give those responsible with responding to these requests access to their agency's electronic records and make government contracts created using stimulus funds subject to the open records law. 

The letter also urged Congress to narrow a secrecy exemption in the CARES Act that frees the Federal Reserve from keeping and publishing certain records related to its COVID-19 response; expand the reach of the Pandemic Response Accountability Committee that the CARES Act created to encompass oversight of loan guarantees and tax provisions; boost funding for already depleted congressional oversight committees; and require the U.S. Department of Justice's Office of Legal Counsel to disclose all formal written legal opinions throughout the duration of the national emergency. 

"The public and Congress must have full knowledge of the laws governing the federal response to the pandemic, so that they can fully understand how the executive branch perceives its own authority," the groups argued. 

The letter was signed by 26 groups, including the American Arab Anti-Discrimination Committee, Campaign for Accountability, Center for Media and Democracy, Demand Progress, Government Accountability Project, Public Citizen, Society of Professional Journalists and Taxpayers for Common Sense. 

Many of the same organizations signed onto a public statement issued by more than 130 groups last month supporting government transparency and public access to information as the U.S. responds to the coronavirus pandemic.

The March 20 statement urged government bodies to refrain from taking advantage of the public's inability to attend large gatherings to make critical decisions affecting the public's interest. Instead, the government should work to postpone noncritical policymaking decisions until the public is able to weigh in and additionally use this opportunity "to leverage technology to make governance more inclusive and more credible," according to the groups.

"The fact that a government decision involves public health and safety is a reason for more, not less, transparency," the groups argued in their letter last month.

Congress responded to some of these concerns in the CARES Act, which established three new oversight mechanisms: a bicameral and bipartisan Congressional Oversight Commission, a Special Inspector General for Pandemic Recovery and a Pandemic Response Accountability Committee, a special panel of the inspectors general association.

The U.S. House of Representatives in a party-line vote of 212-182 on Thursday also moved to set up an investigative panel to review the federal coronavirus response, over objections from Republicans that the panel would become a partisan attack on the Trump administration and was redundant given the new oversight provisions in the CARES Act. 

The Select Subcommittee on the Coronavirus Crisis will be the sixth subcommittee of the Committee on Oversight and Reform. Subpoena power is given to its chairman, Majority Whip Jim Clyburn, D-S.C. It can have as many as 12 members, including up to five Republicans.

"I think all Americans would agree that the response to COVID-19 has not been perfect," Clyburn said in a statement after the vote Thursday. "The Select Subcommittee will give us the tools needed to work toward a more perfect response to this and future pandemics."

--Additional reporting by Andrew Kragie. Editing by Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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