Coalition Presses D.C. Legislature for FOIA Improvement in Oversight Hearings

Fritz Mulhauser | April 15, 2021 | Last modified: April 21, 2021

Three Council committees heard Coalition testimony during the annual hearings on agency performance this year in February and March.  The Coalition discussed familiar themes:

• ending over-redaction by the Metropolitan Police Department of body-worn camera video and releasing files on complaints and discipline;
• ending years of secret opinions by judges at the Office of Administrative Hearings and publishing them as the law requires;
• improving FOIA by designating the Office of Open Government as the responsible agency so it can enforce its own opinions (adding appeals now done in the mayor’s office as well) and provide clear central guidance and leadership.

The Council 2020 oversight sessions were a long year ago, the last face-to-face work before the emergency — 50 hearings in the four Wilson Building hearing rooms, some days with three or four at once, beginning in the morning and lasting until the last witness was heard. This year’s online “virtual” hearings numbered about the same but had definite ending times. In some hearings, only some (or no) public witnesses were heard.

For one hearing that did not allow public testimony the Coalition submitted questions, asking the Council members to ask the Office of Police  Complaints about more transparent release records of complaints, investigations and discipline (a growing movement-nationwide, and in next-door Maryland).

The Coalition testified to Charles Allen (D-Ward 6) and the Committee on the Judiciary & Public Safety about longstanding problems of MPD unlawful treatment of FOIA requests for body-worn camera video—blurring too much with long delays and high costs as a result—and equally longstanding refusal of MPD to release discipline records based on incorrect readings of privacy law and exaggerated fears of problems. Chairman Allen acknowledged the new law in New York unsealing discipline files and said the committee was looking closely at that experience.

New chair Robert White (D-At Large) led the Committee on Government Operations oversight of the Office of Administrative Hearings and heard Coalition testimony that the Office has ignored for years the requirement in FOIA to publish opinions so there is no body of “secret law.” Chairman White, as an attorney, grasped the unusual nature of a court-like body whose opinions are unavailable, asked many questions and noted plans for follow-up. (He raised it again at the confirmation hearing March 26 on the mayor’s nomination of Margaret Currie as Chief Administrative Law Judge.)

And Brianne Nadeau (D-Ward 1) for the first time chaired an oversight session of the Committee on Human Services on the Board of Ethics and Government Accountability which includes the Office of Open Government. The Coalition explained problems in District agencies’ treatment of public records requests during the pandemic year (delays, backlogs and shaky public communications) and warmly praised the Office for leadership including important opinions and testimonies during the year, efforts training agency staffs in technology of meetings and records for the pandemic conditions and on-boarding charters as they take up new open meetings responsibility.

With a new Council audience, the Coalition urged Ms. Nadeau to frame a broad agenda and take a fresh view of the District’s public records management to move into the digital age to better serve agency missions (as well as ease FOIA burdens). Coalition recommendations included added authority for the Office of Open Government to decide and enforce FOIA appeals as well as Open Meetings Act complaints. With no other public witnesses on the Office, Nadeau exchanged at length with the Coalition witness. She recalled her own use of FOIA as a student journalist and asked many questions. She especially explored the questions of how the Council could take a broader look at FOIA along with broader technology needs for records management (noting her own efforts toward a paperless Council office).  Following the testimony of Office director Niquelle Allen, her Q&A exchange with the chair included a welcome breadth of topics:

• importance of digitizing DC records and role of the Technology Office;
• rationale for exempting Advisory Neighborhood Commissions from open meetings requirements that all other public bodies must obey;
• simplifying FOIA requests for those seeking records about themselves (since D.C. has no equivalent of the federal Privacy Act that regulates requests for equivalent federal records);
• setting a uniform policy for D.C. agencies’ retention of email;
• expanding coverage of the open meetings law to include committee meetings of public bodies;
• preserving some of the emergency changes that have proved useful in open meetings laws;
• whether changes to FOIA proposed briefly some years ago by the Council chairman had any merit or should be rejected if offered again;
• use of encryption technology (such as WhatsApp) by D.C., government employees on government business.

Plenty of food for thought there for discussions in coming months.

Testimony (all by this writer) is available here:

• MPD: Coalition written statement; March 11 hearing video (Coalition oral testimony begins at 5:30:14);
• OAH: Coalition written statement; February 25 hearing video (Coalition oral testimony begins at 17:13);
• OOG: Coalition written statement; February 26 hearing video (Coalition oral testimony begins at 4:04). Agency testimony by director Allen at 1:05:10 followed by Q&A.