We close Sunshine Week on a sad note: the other shoe has dropped.

As public agencies attempt to contain the spread of coronavirus by reducing their onsite workforce, and widely publicized adjustments are made to open meetings requirements, Governing magazine announces that Chicago, Illinois has suspended its open records duties.

Multiple Illinois freedom of information requesters received automated denials on Wednesday advising them:

"Due to the COVID19 National and State public health emergency, and the Governor's issuance of a disaster proclamation, the City of Chicago is in the process of scaling back on workforce and non-essential City operations and duties. In doing so the City has determined that certain job functions must be suspended as non-essential. The Freedom of Information Act (FOIA) responses have been deemed a non-essential City operation and are being temporarily suspended until further notice."

The city's actions are at odds with guidance offered by the Illinois attorney general in an opinion urging local agencies to "continue to comply with FOIA and respond to each request promptly, to the extent they are able to, given the limitation on staff and resources during the COVID-19 pandemic.

"Both requesters and public bodies should keep in mind that FOIA allows the public body and the requester to come to a mutually agreeable response period to comply with a request.

"Members of the public and media are asked to keep these considerations in mind and are strongly encouraged to work with public bodies to agree on reasonable and appropriate response times in light of the public health concerns that we all face."

Illinois Gov. J.B. Pritzker indicated that his office would "continue to respond to FOIA requests," but asked for patience due to the circumstances around the coronavirus.

News from Chicago follows on the heels of federal agencies scaling back or suspending federal freedom of information duties. On Tuesday, the FBI's posted the following notice on its website:

"Due to the emerging COVID-19 situation, the FBI is not accepting electronic Freedom of Information/Privacy Act requests or sending out electronic responses through the eFOIPA portal at this time. You may still submit a FOIPA request via standard mail."

In pleadings filed on Tuesday in ongoing FOIA litigation, an assistant US attorney notified the court that the office that handles the FBI's FOIA requests is "closed at least until March 30, 2020 because of the current coronavirus outbreak."

https://www.techdirt.com/articles/20200318/14114844126/fbi-says-it-will…

On Friday, Twitter was abyss with news that the State Department has suspended its federal FOIA duties. A State Department notice advised requesters that it would not process records until further notice.

These actions are not unexpected but they *are* unacceptable.

In Friday's #SunshineChat2020, Brechner Center Fellow Rachel Jones suggested that:

"giving reasonable leniency is key. Understand that agencies may be strained. But don't bend if they refuse to accept requests or respond."

Kentucky's existing law can be adapted to the extraordinary challenges we face.

In ordinary times, and under ordinary circumstances, a state or local agency must issue a final response to an open records request within three days of receipt of the request, excluding Saturdays, Sundays, and legal holidays.

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23065

But KRS 61.872(5) states that if a requested record "is in active use, in storage or *not otherwise available,* the official custodian shall immediately notify the applicant and shall designate a place, time, and date for inspection of the public records, not to exceed three days from receipt of the application, unless a detailed explanation of the cause is given for further delay and the place, time, and *earliest date* on which the public record will be available for inspection."

https://apps.legislature.ky.gov/law/statutes/statute.aspx?id=23060

The statute appears to vest unilateral discretion in the agency to decide what the *earliest date* the records will be available is. Many a hard fought battle has been waged in the attorney general's office on the issue of timely access to public records.

But in the current crisis, this statute offers a clear alternative to agency suspension of open records duties.

Where records can not be immediately produced, a public agency and a requester should be able to arrive at a mutually agreeable *earliest date* to comply with a request.

The nature of the explanation should determine the length of the mutually agreed upon delay. But, again, it should be the earliest available date mutually agreed upon in light of the public health crisis we face.

Bearing in mind that public agency resources are being and wii be strained for the foreseeable future, reasonable leniency is, as noted, the key.

In the coming days and weeks, we can expect further discussion — and perhaps action — on this issue.