D.C. Agency FOIA Problems Surface with Rare Drama in Whistleblower Lawsuit

Genet Amare, an official with the Department of Consumer and Regulatory Affairs, has filed a whistleblower lawsuit in Superior Court that -- if its allegations are proved -- gives a rare window on a D.C agency’s disdainful treatment of public records requests. 

The case has been mostly noticed as a sidebar within the story of the departure of the agency head, Melinda Bolling, let go recently by the mayor under what Washington City Paper Loose Lips columnist Mitch Ryals last week (29) called “vague circumstances.”  See also Martin Austermuhle’s account at WAMU last week (28), headlined "turmoil continues at DCRA as three top officials pushed out" after Bolling.

Bolling, according to WUSA-9, since then has landed on her feet in a department head post in the administration of incoming Prince George’s County, Maryland, county executive Angela Alsobrooks. This follows Bolling’s stormy tenure since 2015 leading the department of almost 500 staff and a $60 million budget that handles regulatory functions done elsewhere by cities, counties and states such as building code inspection, new construction permits, corporate registration, business licenses, weights and measures, some zoning enforcement, and many more. 

Among agency problems that have drawn repeated attention of the D.C. Auditor and a week-long mayoral inspection tour, records management has been among the worst. The D.C. Open Government Coalition noted when the agency failed for years to publish all building permits online as required by law. The agency just didn’t do it, and instead required requesters to use an outside printer, who collected and pocketed fees. That drew a tough opinion from the Office of Open Government. The  Coalition testified (attached; see link below) at a July 2016 Council roundtable urging Council pressure and funds to improve records technology.

Prompt public access to all DCRA records under FOIA has been an obvious problem.  An obscure report by the mayor for 2016-17, the latest year with full data, shows that on top of a backlog DCRA received just under 900 new FOIA requests, the second highest annual agency total after the Metropolitan Police Department (MPD). They never caught up, leaving about 200 incomplete (the most of any agency) as the year closed September 30, 2017. Delays were common—almost 600 requests took more than 26 days.

Though the story of DCRA FOIA problems thus has been well-known, the allegations of the new lawsuit paint a detailed picture rarely seen of agency chaos, internal friction and disrespect for legal mandates.

Amare says problems surfaced within days of her arrival after working for five years as a FOIA Officer at  MPD. She reports receiving little training in finding records in the agency’s many databases. Given the volume of requests old and new, she was surprised at orders from agency director Bolling that regular staff were not to help find records. Instead, Bolling instructed FOIA officers to do whatever search they could, then hand the results to a program staffer with an affidavit to sign falsely attesting to search methods not in fact followed in responding. Amare reports her view at the time that this was a recipe for delays, missed deadlines, appeals and litigation—or even disbarment for any attorney caught taking part in a fraud.

According to the Amare lawsuit, when she contacted the Office of Open Government, director Traci Hughes wrote the DCRA general counsel and director urging the agency leadership to use all staff needed to comply with the law.

The Mayor’s Office of Legal Counsel also responded, according to Amare, after she reported in response to a FOIA appeal the staffing shortages and the false affidavits she was told to prepare. In response, director Bolling made stopgap changes but dismissed concerns for appeals and lawsuits, calling them “slaps on the wrist.”

The lawsuit reports that Betsy Cavendish, the mayor’s general counsel, next wrote the director that this was becoming “a potentially embarrassing and serious situation for the Mayor and administration.” The letter, according to the lawsuit, called it “imperative” that DCRA do better in FOIA management, such as resolving “lack of clarity or in-fighting among staff” in order to comply with the law (including using program staff again to help search for records) since “we do not view lawsuits as merely risking a slap on the wrist.” Amare reports in her lawsuit that the director rebuffed an offer from the mayor’s office to lead a "team building exercise."

The rest of the lawsuit details bureaucratic trench warfare in which Amare was fired in February this year (her boss, the general counsel, said he hadn’t known it was coming, and it was the director’s decision), then returned to her position after she informed the mayor’s office—but told to stay home. Her firing was investigated by the city human resources office and she was called back to work in April. The general counsel was fired and his replacement, in her view, continued the director’s scheme of reprisal through a variety of harassments.

The Amare lawsuit asks for damages and attorneys fees for violation of the D.C. law that protects whistleblowers—prohibiting retaliation for disclosing violations of law and ethics. She connects the repeated actions against her job to her earlier disclosures that DCRA leaders were directing staff to ignore FOIA deadlines and to “submit fraudulent affidavits attesting to record searches which they had not conducted.”

Amare, an attorney, remains a FOIA Officer at DCRA. Her suit has not yet been heard in court. To repeat, its  factual claims are, for now, simply Amare’s allegations.

Former Office of Open Government director Traci Hughes (now an Open Government Coalition board member and vice president) said “The allegations made in the lawsuit regarding DCRA’s failure to comply with FOIA are accurate. I attempted to work with DCRA for years, urging them to follow the law and improve their processing. New leadership can no longer treat compliance with our records laws as a mere aside or other duties as assigned.”

The Coalition has found over the years that across D.C. government, internal agency treatment of the 10,000 or so requests processed annually is opaque, beyond the basic volume, disposition and delay data in the mayor's annual report. There is zero data on causes of the big variation in results.

Yet each mishandled request represents a citizen not getting what they asked from their government, assured by law. This is a default on the promise of open government.

FOIA processing in the many diverse DC agencies rarely is examined in Council oversight hearings.  This lawsuit, especially if its allegations are sustained and amplified through factual investigation (called "discovery") and trial, may stimulate greater Council oversight and may encourage staff in other agencies to come forward to explain FOIA processing problems they are encountering. Improved transparency about the subject is the first step.

The case is Amare v. D.C. Government and Melinda Bolling, No. 2018 CA 005787 B.  The complaint is available on the Superior Court website; also via ScribD.  Judge Michael Rankin will hold a hearing January 4, 2019, in Courtroom 517 to set the schedule for the case.