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Coalition Again Urges D.C. Council to Allow Public Access for Press and Research While Sealing Eviction Records Against High-Tech Misuse

Fritz Mulhauser | May 24, 2021 | Last modified: June 2, 2021

Court data show only 1 in 20 D.C. eviction lawsuits actually results in eviction and the average owed is $1200, according to Georgetown researchers Brian McCabe and Eva Rosen. For landlords, easy access to the D.C. Landlord-Tenant Court means a lawsuit can serve as a cheap debt-collection tool, a procedural nightmare visited on a tenant for the price of a $15 filing fee.

This is the court that Post columnist Colbert King describes as “a system that kicks D.C. tenants when they are down.”  

And for a renter, records of even settled cases can live forever in the digital age, interpreted as signaling a risky tenant. U.S. Senator Elizabeth Warren (D-Mass.) and five others wrote the Consumer Financial Protection Bureau just days ago, urging investigation of the tech industry that vacuums up court records and peddles questionable and inaccurate “data” to landlords to use in tenant screening.

A D.C. Council Committee on Housing and Executive Administration is considering bills to seal up eviction cases in D.C courts (B24-96) and also regulate landlords’ decisions (B24-106) — in hopes of addressing both supply and demand for court records that offer little valid information to assess rental applicants. A sealing bill was passed as temporary legislation last year, which the Coalition opposed at the time.

The Open Government Coalition testified May 20 before the committee, chaired by Anita Bonds (D-At Large), to press for an amendment to keep open the flow at least of vital data for press and research analysts. (Written statement here. Video not on Council hearing archive but available on YouTube. Coalition testimony at 0:31:35.)

Council action is needed as no D.C. law now protects access to court records, unlike the D.C. Freedom of Information Act providing access to records of the D.C. executive branch and the Council.

Council members weighing new laws and policies rely on research not into individual lawsuits but large files of cases from many years, mined to understand the broad workings of the busiest part of the D.C. Courts (over 30,000 new cases a year in Landlord-Tenant Court). Committee Chair Anita Bonds quoted such research in her opening statement.  Examples include:

  • Josh Kaplan’s DCist piece on “sewer service,” proving from 4,500 court records that 600 affidavits were probably falsified in recent years to cover up how process servers throw away the papers they’re paid to deliver summoning someone sued and then lie about it in court; and
  • the Rosen and McCabe report, also based on years of cases, showing how little information landlords should take away from such filings (since the cases are, on average, for small amounts and almost always settle when tenants make payment arrangements).

The Coalition’s point was simple: this work will be impossible if the Council bill passes unchanged.

Joining the Coalition in support of properly vetted public data access were others:

  • Leigh Higgins, an attorney at D.C. Tenants’ Rights Center, added valuable support that responsible data use is perfectly compatible with tenant-protective legislation. Her written statement is here; on the video she is at 37:12.
  • Natasha Duarte, an analyst at Upturn, a D.C. nonprofit that keeps an eye on justice and equity implications of technology, also supported research access. (Her testimony on video begins at 2:25:57.)
  • The much-quoted researcher Brian McCabe testified for his team including Eva Rosen with a “plea” for access they need for their work. (Testimony begins at 1:25:34 on the video.) The Coalition reported at the hearing that all court data-based research on eviction has ended by the access ban passed in temporary Council legislation last fall. Rosen said his team has now been denied access they formerly had and explained so well how that hurts:

Research leads to better policy to improve the lives of low-income renters. Where cities have passed record sealing bills without delineating a clear pathway for researchers to access data, tracking eviction has become more difficult. It hurts tenants. It creates challenges to developing policy-driven research.

Court papers are government records. Public access should be assured by a number of constitutional and common law principles. Wholesale closing of kinds of cases and records has been questioned repeatedly by federal courts.

And the courts agree on the benefit of public access. As the D.C. Court of Appeals wrote over 30 years ago:

public scrutiny can serve to inform the public about the true nature of judicial proceedings, and public knowledge of the courts is essential to democratic government because it is essential to rational criticism and reform of the justice system.

Mokihiber v. Davis, 37 A.2d 1100, 1110 (D.C. 1988).

The Council needs to amend its bill B24-96 aimed at limiting misuse of records so it doesn’t also prevent learning from these same records. The Coalition proposal for how a simple amendment can do this is in our testimony. Legislatures in Massachusetts and Connecticut have pending sealing bills that allow for access for studies; D.C. can do this. To join the movement to preserve access, contact us at info@dcogc.org.