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Coalition Update on Emergency Changes in Open Government in the District of Columbia

Fritz Mulhauser | March 18, 2020

Legislation

The D.C. Council met Tuesday (17) and passed emergency legislation with several dozen kinds of special authority for government action during the health emergency. Some change open government law; earlier versions of some were analyzed in previous D.C. Open Government Coalition posts. “Loose Lips” columnist Mitch Ryals reviewed the session for style and substance in a good recap this morning for Washington City Paper.

Members met for 90 minutes chiefly to cast a unanimous vote for the COVID-19 Response Emergency Amendment Act of 2020 (Bill B23-0718), from their seats at well-separated tables in a 4th-floor Wilson Building hearing room specially configured, not the Council regular 5th floor chamber. (Video here.)

This was possibly the Council’s last physical meeting for some time, under new authority they granted themselves to take votes remotely. All pending budget hearings and related work are postponed until after a new deadline May 6 for the mayor’s budget proposal. The Wilson Building remains open, so presumably other legislative branch work goes on.

At the session, Chief Financial Officer Jeffrey DeWitt gave a sobering rundown (beginning on video at 9:27) of the effects on District revenue of steep declines in business at the hospitality industry (hotels, restaurants, bars). It employs 14 percent of those working and contributes about half the District sales tax income. He said the District is fortunate to have put aside large reserves as the economy has boomed until now.

The final bill passed without floor amendment but did include some small changes to the open government aspects made in final drafting since our last report.

Most important, meetings of public bodies still must be “open” at least by real-time audio or video. Only if that’s “not technologically feasible” will delayed broadcast satisfy the law as amended. This is a welcome change to the draft proposal that would have allowed delayed audio or video to suffice for any meeting.

The postponement of the deadline for responses to Freedom of Information Act requests and appeals passed as earlier drafted. Legal director Katie Townsend of the Reporters Committee for Freedom of the Press said in a statement the group was “disappointed” with the D.C. FOIA measure and called access to government information at this time “especially important.”

A rundown of open government changes in the final law is below.

D.C. Courts

UPDATED 3/23/20: D.C. Court of Appeals announced today that the courthouse is closed and oral arguments are cancelled until May 31.

The other major new development is the more extensive closing, beginning tomorrow (19), of D.C. Superior Court, reported by Keith Alexander in The Washington Post at midday today based on internal court emails. This new action may be linked to another development Alexander also first reported–a U.S. Marshal who worked security in two busy criminal arraignment courtrooms stopped work Friday (13) after testing positive and another employee tested positive from outside-work contact. Staff have been informed by email of the closure (and very limited exceptions). A court statement this afternoon confirming the test result of the U.S. Marshal and limited courtroom activity is here.

The court Monday (16) had issued a complex plan for ongoing operations (including some trials) that now may be under some reconsideration. Alexander in his story notes “Lawyers and jurors criticized the court’s top judge, Chief Robert E. Morin, for allowing many hearings and trials to continue despite the virus concerns.” The Joint Committee on Judicial Administration, a five-judge panel that governs the courts, published an order today delegating broad authority to the chief judges of Superior Court and the Court of Appeals to further modify operations. Superior Court has issued a series of orders on details of what cases and matters are and are not being considered. For the latest, consult the court’s special virus advisory page.

The Office of Administrative Hearings that handles appeals about D.C. government agency mistakes took down a notice that it is closed and replaced it with a new one, explaining that staff are doing telework until at least April 27 and preparing to restart some “prioritized hearings.”

Hearings in cases where public benefits or unemployment insurance benefits have been denied or cut will resume March 30 by telephone. All other hearings are cancelled until April 10.

The office, with over 30 judges, has been struggling to develop 21st century technology like that in other courts (as the Coalition has noted in blog posts, as recently as February 10). Its latest notice asked for public support this way: “Please understand that the technology is not perfect and that OAH staff, including the Administrative Law Judges who hear your cases, are working to make the experience as effective as possible. So, your patience and good humor is appreciated during this difficult time.”

Legislation passed Tuesday, March 17, with changes to be in effect for the period of emergency

Changes Affecting the D.C. Council

  • the Council may vote remotely
  • the mayor’s budget submission is delayed until May 6 (so budget-related legislative work is paused)

Changes Affecting Meetings

  • ANCs need not meet during the emergency (and need not make up skipped meetings to meet a required number of meetings per year now in law)
  • ANCs may meet with members participating and voting remotely (the Coalition has noted it is unclear how the public may continue to have access to ANC meetings if they are held remotely, as is required under the Open Meetings Act which does not cover ANCs)
  • public bodies generally are relieved of any requirements to meet (unless ordered by the mayor)
  • meetings under the Open Meetings Act may be considered public if “the public body takes steps reasonably calculated to allow the public to view or hear the meeting while the meeting is taking place, or, if doing so is not technologically feasible, as soon as reasonably practicable thereafter”
  • electronic notice of meetings is sufficient (no physical posting needed)
  • deadlines for public access to records of meetings (minutes or full audio/video) are put off for the duration of the emergency

Changes Affecting the D.C. Freedom of Information Act

  • agencies may delay any deadline in the act for responding to requests (original requests, extended requests, body camera video requests)
  • the deadline for deciding appeals may be delayed

WMATA suspends public access to transit system records

The Metro system has announced that “effective immediately processing of PARP requests has been temporarily suspended until further notice.” The PARP acronym refers to the system’s Public Access to Records Policy.

The transit system sets its own rules on access to records. At least up to now, those have been like those in state and federal law, with deadlines for response, a list of exemptions, and a right to administrative appeal of denials.

Requesters have been often dissatisfied with delays and defensive use of exemptions. The Coalition’s blog has over the years catalogued the resulting lawsuits. The headline of Frederick Kunkle’s Washington Post story last May says it all– “Metro’s transparency is under scrutiny again, thanks to lawsuit over public records request.”

The agency autonomy is a feature, not a bug. The Washington Metro Area Transit Authority was created by agreement of three states’ legislatures, called an interstate compact, and is an agency of all three jurisdictions. The compact was ratified by Congress, as required by the Constitution for all such compacts, and was authorized and approved by Congress on behalf of the District of Columbia as a signatory jurisdiction.

Open records is not addressed in the compact so the current policy is simply one more action of the board, that may change it at will.

The announcement cites “the need for WMATA staff to support urgent safety and mission critical operational issues.”

Public interest is greatest about transit safety but the basic system is threatened by the effects of the virus. Daily ridership of a million has dropped 90 percent on Metrorail and 65 percent on Metrobus. Schedules have been drastically slimmed and 20 rail stations closed. Effective March 24, bus riders enter at the rear and need not pay—a union request to reduce drivers’ contact with passengers. Public interest is likely to continue in data about the system.