Coalition FOIA Complaint Sustained: D.C. Administrative Court Has Failed for Years to Publish Opinions (Blames Budget)
Fritz Mulhauser | February 10, 2020
The Office of Administrative Hearings (OAH) has failed for years to follow D.C. public records law requiring online publication of its decisions. The OAH has admitted noncompliance, while denying “defiance or ambivalence” and blaming lack of funds. The admission was reported January 27 among the findings of a four-month investigation by the Office of Open Government (OOG) in response to a complaint by the D.C. Open Government Coalition.
The central hearings office, created in 2004 to replace inconsistent agency complaint methods, has 33 judges who handle 30,000 appeals a year. Cases arise from decisions in more than 40 D.C. agencies including government mistakes in food stamp benefits, professional license discipline, fines for violation of construction and other permit laws, school suspensions, and tenant complaints of unlawful rent increases.
The Coalition filed its complaint to stimulate corrective action after finding few opinions online as called for in the D.C. Freedom of Information Act (FOIA) and no apparent response to prior recommendations of the D.C. Auditor or the agency’s own promises to address the situation.
The OAH has been under pressure for some years because of limitations of its computer system. Unlike access for the public to computerized case information from internal management systems available at local and federal courts in the District (and at courts in most states), no case information is available online at OAH. The D.C. Auditor in a 2016 report asked the OAH to set a deadline for making case dockets and decisions publicly available on a website.
The OAH seemed finally to get the message, telling the D.C. Council in performance plans for 2018-19 that by September 30, 2019, it would “develop a proposed plan to provide direct but limited access from the OAH website to the OAH case management system.” (Seemingly questioning what is considered efficient and modern court management most everywhere, OAH added it would also “evaluate whether the potential cost of such a project is justified by public demand for the information.”)
The Coalition made a FOIA request to OAH for a copy of the promised plan last October after the close of the 2019 fiscal year. The agency said there was none and no schedule for later delivery, leading to the Coalition request for the review by the Office of Open Government.
The OOG January 27 opinion letter quotes the OAH that it continues work on plans to improve its electronic case management system but that the slow pace of improving public access is because of “unfortunate realities of the Agency’s budget constraints.”
No cost figures are quoted but the agency head (the Chief Administrative Law Judge) in response to Coalition questions at a meeting of the OAH Advisory Committee in January estimated it would cost $200,000 for software improvements necessary to let the public access some parts of the existing system while securing other parts for internal use only and for cases that by law must be confidential. That sounded affordable.
The OOG opinion credited the agency desire to comply, but noted investigators still found no information on a schedule for the improved system. OAH officials in January repeated in a meeting with the Coalition that they could set no schedule since no funds are available this year (FY 20) nor did they know whether such funds were in the mayor’s budget for the agency in FY 21.
Governments at all levels are challenged to merge paper and digital files in agencies and the courts, and to update legacy systems to provide the electronic access the public expects now that they are accustomed to tracking the progress of their new pair of shoes online from Amazon order to UPS delivery, renewing a driver’s permit online at the D.C. DMV or ordering digital research materials online from the D.C. Public Library.
The D.C. mayor and Council need to reckon with the resource needs involved in agencies’ leap into the digital world. Smart procurement help is essential, and to avoid long delays with staff learning curves, the District’s Chief Technology Officer could assist busy mission agencies with general strategic planning for major technical enhancements.
It can be done. Building permits were not available online as required by the same section of the D.C. Freedom of Information Act that mandates access to OAH opinions. Complaints of ANC officials and others surfaced several years ago, sustained by another OOG opinion and scathing press coverage, and in response to public pressure at Council hearings and OOG testimony millions of dollars were found for the D.C. Department of Consumer and Regulatory Affairs to correct the problem.
The Coalition encourages the mayor and Council to enlarge the FY 21 budget now in progress for OAH, so that resources are available to assist the office to meet its obligation to provide 21st Century electronic access to its operations that affect 30,000 members of the public every year.