Coalition Continues Advocacy for Funds for Public Records Access – This Time for Office of Administrative Hearings

Fritz Mulhauser | June 18, 2020 | Last modified: June 19, 2020

The Open Government Coalition has for years been urging the D.C. Council that costs of computers and staff that support the public’s basic “right to know”—open access to records as well as meetings and data—are a modest price to pay for a pillar of democratic government.

As James Madison, considered the father of the U.S. Constitution, wrote in an 1822 letter, “[a] popular Government, without popular information, or the means of acquiring it, is but a Prologue to a Farce or a Tragedy; or, perhaps, both. Knowledge will forever govern ignorance: And a people who mean to be their own Governors, must arm themselves with the power which knowledge gives.”

That advocacy continued June 12 as the Coalition submitted written testimony for the hearing on the budget of the D.C. Office of Administrative Hearings (OAH). That central panel of administrative judges hears and decides thousands of complaints each year about mistakes by D.C. agencies.

But you can’t find out what happened the last time the OAH heard a concern like yours. The Office website tab to “Find A Final Order” overpromises as it links only to a few orders in only a few kinds of cases, in files that are neither up to date nor searchable.

The OAH has been cited for this failure to publish its opinions, since the D.C. Freedom of Information Act for decades has required it. Officials claim OAH lacks funds to make computer software changes for opinions to be accessible online as is commonplace in most courts.

The Coalition statement detailed the problem for the Council—the Office of Open Government opinion finding the Office had not followed the law for years, and the lack of corrective action despite repeated promises in agency work plans.

The Committee did not allow public witnesses to testify live but the Coalition suggested a script of questions that members should pose. “The committee should ask the agency to address the situation, as follows:

• Ask agency officials to explain progress on promises made in 2019 and 2020 work plans;
• Ask for details on new promises made in 2021 plans;
• Include funds and clear directions in the budget report showing that the Council expects action in the coming year, including creation of a public stakeholder committee to work with OAH on improved public access to information on the work of the Office.”

But it didn’t happen. Discussion lasted a bare 11 minutes between Committee Chairman Brandon Todd (D-Ward 4) and the OAH chief judge (after his testimony). (See video here; OAH segment begins at 2:51 with Q&A after 2:59:07.) The chief judge said the office was satisfied with the budget as submitted and the chairman asked nothing about either the longstanding failure to publish opinions or added resources needed to follow the law.

The problem of resources for open government is not new, and goes beyond this agency. The Open Government Coalition warned the Council in testimony in February that limited funding has been an agency defense in other cases of failure to carry out open government laws—including not only the failure to publish materials but also the limited access to D.C. agencies via the FOIA request portal, delays in agencies’ FOIA responses (a quarter take longer than the law allows), and failure to record public meetings. The Council in 2017 had to add $3 million in a special appropriation to allow DCRA to catch up on decades of deferred IT improvements so that building permit records could be online.

And even imaginary costs are cited to oppose access. Unsupported claims have been offered for years against adding FOIA to the rules for D.C. charter schools, though that is common in most states, and were presented by Mayor Muriel Bowser to justify an unsuccessful proposal to limit open access to video of police body-worn cameras.

The failure to follow existing law such as timely FOIA responses or online access to materials in part reflects the limitations of D.C. law. No central office is responsible to check on agency compliance with the Freedom of Information Act and whether adequate resources are available to do the work. The Coalition is developing proposals for legislation in the new Council period that begins in January 2021.