Coalition Testimonies in D.C. Council Oversight Stress Transparency Improvements Needed in Three Agencies

Fritz Mulhauser | February 15, 2022 | Last modified: February 26, 2022

The D.C. Open Government Coalition kicked off its annual advocacy at D.C. Council agency performance hearings pressing for

• Public access to death investigations the D.C. medical examiner wants to keep secret;
• Prompt hiring of a D.C. archivist to assure archives planning and a new archives building that will enhance access to D.C. records; and
• End to years of delay in publishing thousands of opinions in cases decided by judges in the Office of Administrative Hearings.

D.C. death investigation reports shouldn’t be secret

Coalition board member Bob Becker, a media law and defense attorney, testified February 2 to the Committee on the Judiciary & Public Safety. The Coalition opposes an unwise proposal in Bill B24-203 – burying investigation reports the medical examiner prefers to keep secret by allowing access only for those who could afford lawyers and months of wrangling to get a judge to agree on a “compelling need” to see the materials.

Noting recent problems with credibility of analyses at the Department of Forensic Sciences, Becker warned that secrecy of medical examiner investigations could be harmful in the same way: “the OCME must have the trust of D.C. residents that its staff is competent, that its findings are supported by evidence and medical science, and that it is unbiased.”

The Coalition written statement is here; the hearing video has the oral statement at 0:02:48. Committee Chairman Charles Allen (D-Ward 6) invited the Chief Medical Examiner and the agency general counsel to speak. But (on video at 1:52:00) they gave no argument to rebut the choice of over 30 states to allow open access, subject to FOIA privacy protections. The officials subtly mocked press, researchers, and others, dismissing how “everyone thinks they have a good reason to see the results.” And also using scare words like “voyeurs” and “autopsies on the Internet.” 

An earlier Coalition blog post reviews the bill and prior Coalition comments opposing withdrawing such materials from FOIA.  A powerful review of the effective public interest uses of death investigation findings offered by the Reporters Committee for Freedom of the Press is here. No Council action is expected till after the Fiscal Year 2023 budget is voted in late May.

Coalition supports D.C. archives

Arguing for more attention to the state of D.C. archives, Coalition board member (and this writer), attorney Fritz Mulhauser, testified February 9 to the Committee on Housing and Executive Administration. His testimony called on Committee Chair Anita Bonds (D-At Large), newly assigned to oversee the Office of the Secretary that includes the archives, to hold fuller hearings for long-overdue Council attention to a suite of problems with archives and records management in the 80-plus D.C. government agencies for the 21st century. Archives, and related guidance to agencies on what to preserve, are at the heart of long-term public access to government agency records, the raw materials of history.  (The Coalition is compiling a finding guide to historic records.)

The Coalition testimony laid out several challenges in the D.C. archives program including:

• likely inadequacy of funding set aside long ago for a new archives facility but now diminished by cost inflation owing to the District’s delay;
• delay appointing a senior “state archivist” to lead the program including design of the new building;
• overall strengthening of the D.C. archives program through effective long range planning (for example, to review why no electronic records are yet included in the archives).

To the Coalition and a chorus of similar witnesses including Trudy Peterson, chair of a new Archives Advisory Group, Bonds recalled visiting the current inadequate archives storage vault and vowed to follow up to gain a deeper understanding of the needs of the archives in order to serve D.C. users.  

The new facility will be at the UDC campus at Connecticut Avenue and Van Ness. Designs are under way by the Hartman-Cox architecture firm, but construction is many months away and the public has not been heard as the executive has tinkered with designs. 

In appointing the Advisory Group, Council Chairman Phil Mendelson said in a November 30, 2021, statement, “The DC Archives is important to the District and while council members have some awareness of its value, it’s just not a cause that rises to the top when we consider the budget and other matters.” He continued, “This Advisory Group is constituted because of your engaged interest and your ability to focus and advocate for a new, state-of-the-art Archives.” 

Still zero publication of OAH judges’ opinions

At a third hearing on February 10, the Coalition witness (again this writer, Fritz Mulhauser) reported to the Committee on Government Operations & Facilities that there has been “scant progress” towards the publication of judges’ opinions in the Office of Administrative Hearings (OAH).

Publication is required by law, so users of the court know what law may apply to them. Without publication of past rulings, in effect the court is creating a body of secret law. 

OAH is a central hearing office with over 30 judges who handle tens of thousands of complaints a year about D.C. government agency mistakes, in Medicaid health benefits, unemployment insurance denials, rental housing regulation, tickets for messy trash tickets, unfair school suspensions, and dozens more.

The Coalition’s written testimony is here. Video of the hearing is here, and Coalition oral testimony begins at 0:21:15. The Open Government Coalition has for years advocated for budget and plans to bring modern technology for filing and pursuing cases, as well as the online publication of how cases end and why. Committee Chairman Robert White (D-At Large) last year agreed that “modernization” of systems at OAH was “long overdue” and his committee’s budget report called for “prioritization” of making opinions available. See earlier blog post here.

No hearing video is posted yet for the archives tesitmony in the second hearing discussed above. The Coalition plans to testify as well at the hearings on Office of Chief Technology Officer (February 17 at 12), Office of Open Government (February 22 at 12) and Mayor’s Office of Legal Counsel (February 25 at 9). Details of online access and submitting testimony are in the Council hearing schedule available here. We appreciate others who join in testifying to the Council on open government topics; it makes a difference when the community speaks.