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Coalition Repeats Call to Reject Pending Council Secrecy Bill and Apply Usual FOIA Process to Death Investigation Records

Fritz Mulhauser | November 12, 2022 | Last modified: November 17, 2022

UPDATE 11/17/22: The bill discussed below passed the full D.C. Council on its first reading November 15. The D.C. Open Government Coalition wrote Council members requesting amendment or postponement. A second reading could be December 6 or 15.

A bill in the D.C. Council will shut down public access to all detailed death investigation reports by the Office of the D.C. Chief Medical Examiner (OCME). Such a step contradicts the District’s open records policy and is the opposite of access laws and court decisions in over 30 states that support the ability of the press and public to learn of important topics related to public health and safety.

The D.C. Open Government Coalition opposed a bill from the mayor introduced in April 2021 to heighten secrecy after the press pushed for access to the report on the death of Capitol Police Officer Brian Sicknick after the January 6 insurrection.

Coalition president Thomas Susman argued in the 2021 statement, “The Council should reject this bill because the FOI Act, as currently written, provides ample protection on a case-by-case basis for concerns about the privacy of decedents and their families.” The Coalition repeated its concerns about the unneeded and unwise legislation at oversight testimony in February 2022.

With no further input, the Committee on the Judiciary and Public Safety reported a revised bill on November 3 that limits access more drastically than current law or the mayor’s bill.  

The Coalition believes the bill should be amended before final passage to provide access the same as all public records under the District Freedom of Information Act. Or action should be postponed so that the new Council session that convenes in January 2023 can revisit the subject altogether.

Facts and law suggest the proposed secrecy regime is fatally flawed.

Examples abound of how prompt access to death investigation files has served the public well:

Though the OCME reported 1,229 full autopsies in 2020, the testimony of the Medical Examiner, Dr. Francisco Diaz, in the original hearing in May 2021 gave not one example of problems posed by existing access rules. To committee questions, he even admitted that courts would be better at judging access requests than his office. His agency counsel offered irrelevant observations on how physicians must keep patient records confidential.

Instead, Dr. Diaz offered only the bare proposition: “The decision to give public access to the intimate details of a decedent should be in the hands of the decedent’s family.”  

“History shows that bringing tragedies to the public’s attention is the greatest catalyst for public policy change. Transparency can lead to enhanced government protections, greater public and private resources, and heightened public understanding and demand for change… We need not look far for examples in which public disclosure, media scrutiny, and good journalism led to positive changes to prevent tragedies….”

Colorado Governor John Hickenlooper veto letter in 2018 when presented with a bill to seal child autopsy reports.
 

That opinion of Dr. Diaz is unsupported by decisions interpreting federal Freedom of Information law, even the 2004 Supreme Court case cited in his testimony, National Archives v. Favish, that concerned a request for photographs from the investigation of the suicide death of White House Counsel Vince Foster. The Court found the records could be requested under FOIA and the public interest should be considered. (Though the Court declined to order the photos released since five prior investigations had exhaustively reviewed whether the government had missed evidence of foul play.)  

The D.C public records law, modeled on the federal FOIA law analyzed in Favish, also protects against releasing records that would be an “unwarranted” invasion of privacy. This is not some arcane rule buried in fine print; in fact, D.C agencies invoke it so often that it’s the most used reason for denying records every year.

The committee suggests its final draft text is “providing access under FOIA,” but the Coalition believes that is misleading. The bill’s proposed “access” is not to records (such as the investigation report, rich in details that can be evaluated to assess conclusions), but to only ten data elements.—Those do identify the decedent and the cause, manner, and place of death (plus administrative details of the case number, examination date, and examiner). But that is not access to the investigation record.

Investigation files can be dozens or hundreds of pages and exhibits, but the bill keeps the file secret. Only those 10 facts may be requested; the rest of the file is removed from access under FOIA by law, so no appeal or court challenge will be available to evaluate whether the public interest in full openness should prevail.

The reported bill is thus a step backward — current law at least allows a requester to go to court and show the reasons for access. So did the mayor’s original bill.

The Council must amend the bill to provide access under the usual FOIA procedures or let the bill expire and return to the subject next year for a fuller review.