Coalition Testifies in Support of Extending D.C. FOIA to Charter Schools

Fritz Mulhauser | October 3, 2019 | Last modified: October 7, 2019

In a D.C. Council hearing that stretched from morning to evening and included 83 scheduled witnesses, D.C. Open Government Coalition President Thomas Susman testified Wednesday (2) in support of expanding public records access under the D.C. Freedom of Information Act (FOIA) to all D.C. charter schools, not just the charter authorizing board that is covered in present law.

Video of the hearing on bill B23-0199, introduced by Charles Allen (D-Ward 6), is here. Coalition testimony is at 1:42:15.  Written statement is here.

Susman stressed the near-universal acceptance of the principle, called “right to information” elsewhere, as well as the burdens that accompany it. He recalled for the Council that this is no different from other basic rights such as counsel in criminal cases for low income persons, accessible pathways for the disabled, and nondiscrimination, all of which carry costs but which we all bear to achieve important goals.

Susman noted that predicted problems of cost and burden seem exaggerated, according to Coalition data and consultations nationwide. He cited a new Coalition survey of state laws elsewhere showing widespread acceptance of the basic FOIA and open meetings coverage proposed in the bill.    

He then suggested the committee could nevertheless consider extra help for D.C. charters that may encounter the rare but heavy burden, require all requests be presented through the charter school board, the D.C. charter authorizer that has sizable and experienced legal staff already handling FOIA requests, or even delay some implementation aspects.

As in prior hearings before the Public Charter School Board and the Council on the subject, charter parents and teachers turned out to stress that opposition of charter administrators, board members or lobbyists, didn’t reflect grass roots views, and to cite information about finances, staff and program they find hidden from view. Sources told the Coalition that at least seven charter school leaders planned to testify in support of the bill but their managers said no.

Opponents offered a range of arguments including that charters should be as free as possible of all regulation so they may try their best to improve education results; that the FOIA requirement would yield no information useful to families but came instead from hostile national teachers’ associations and other “outside interests”; and that requests would be “weaponized” — submitted not in good faith but only to harm the charter movement with crushing mandatory paperwork.

Some charter leaders recalled tragic deaths of young people in D.C. streets and connected those to the hearing by criticizing the Council for spending time on anything but the urgent problems of student safety walking home in risky places.

Specific concerns included that salary details, revealed in open records requests, could damage recruitment and retention of sorely-needed teachers of color.

Opponents repeated predictions of burden, with one school head estimating her school would likely need to budget $100,000 a year to comply. Charles Allen pressed for the evidence behind such estimates, with little result. He noted repeatedly during the day that he had seen no evidence of heavy burdens in the 2018 FOIA request totals to the D.C. Public Schools (184) and the Public Charter School Board (74).

Charter Board executive director Scott Pearson acknowledged even the (as yet unreported) figures for 2019 still showed under 100 requests per year to his agency. But he challenged a figure quoted by Charles Allen through the day (650 hours or less than one-third of a full-time staff member), drawn from the mayor’s 2018 FOIA report to the Council, saying it was mistaken because board staff didn’t fully tally their time on FOIA work. Allen had left to pick up children from day care by the late hour of that revelation that the board has misstated its reporting to the mayor. Mendelson inquired if Pearson planned to file a corrected report. (Pearson had told the Council in the charter board’s oversight hearing on February 15, 2019, that the board at that point had “three full-time attorneys” working on FOIA. The annual report on agency FOIA workload and staffing for the year ended September 30, 2019, is due from the mayor February 1, 2020.)

Pearson noted one large request pending, where search returned millions of pages of emails that he predicted will take years to review.

Burden was a focus of many questions from Council Chairman, Phil Mendelson, who co-chaired the hearing with Education Committee Chairman David Grosso (Ind.-At large) and gave at several points his own account of a growing number of burdensome requests to the Council. He cited requests for years of emails exchanged by Council members with lists of other names.

Mendelson asked witnesses to describe problems with the bill that could perhaps be fixed with new ideas and further amendments, or to be clear that they rejected public records access altogether. For example, a representative of the Federal City Council suggested instead of adding FOIA to charters, the Council should instead consider reducing FOIA burdens on D.C. public schools as well, in the form of some “greater flexibility.”

The Coalition noted that other states’ laws include provisions for handling unusual requests which may be useful to review, and also that the pending bill calls for tracking the charter FOIA experience which will allow adjustments as needed.

Council member Robert White (D-At large) attended, joking ruefully that he had sometimes been unable to find information he needed from the schools using all the tools of his office and existing laws (for example, on environmental hazards in playgrounds or on teacher turnover). Council member Elissa Silverman (Ind.-At large) attended briefly also, offering a strong statement in support of the legislation.

Pending legislation would also require charter boards to follow the Open Meetings Act. That idea proved less controversial and numerous schools’ officials testified their charter board meetings are generally open already.

The Education Committee plans to mark up the pending bills soon. A proposed text is required to be available 24 hours before the mark-up session.

See also, coverage for WUSA9 by Sarah Konsmo. Featured at the top of the piece was Coalition witness Tom Susman’s point about the right to information and its link to accountability of those spending public funds.