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Coalition Urges D.C. Council Action on Proposal Addressing Messaging Apps

Fritz Mulhauser | March 1, 2022 | Last modified: March 15, 2022

UPDATE 3/15/22: On Monday (14) Republicans on the U.S. House of Representatives Oversight Committee wrote the D.C. Inspector General asking for investigation of the use of WhatsApp by the mayor and others. The letter, first reported by Axios, recounts the familiar history, but adds a motive, “The lack of transparency regarding Mayor Bowser’s WhatsApp messages raises questions about why the Mayor is attempting to hide certain communications.”

UPDATE 3/1/22: The D.C. Council passed the bill (B24-692). In a new statement accompanying revised bill text to make the electronic messaging bill last most of the year (instead of just 90 days), Council Chairman Phil Mendelson sharpened his language, saying Monday, “I get it that many in government would like to conduct their business in private. But that is contrary to long-standing policy. We value open government. We don’t value auto-delete.” The mayor commented on the bill draft in a letter, saying she supported its intent but recommending unless amended to apply also to the Council it would be “the height of hypocrisy.” Cuneyt Dil’s updated report in Axios D.C. is here. Michael Brice-Saddler for the Post here. And Martin Austermuhle for Dcist here (quoting Coalition analysis).

As legislation is set to go on the agenda in the D.C. Council to require archiving of all official messages on electronic messaging systems, the D.C. Open Government Coalition wrote legislators Monday (28) to “applaud the initiative.”

Following press accounts of more extensive use than previously known, including by D.C. Mayor Muriel Bowser and Maryland Governor Larry Hogan, as well as staff for both, and a second stinging Washington Post editorial, Council Chairman Phil Mendelson distributed emergency legislation for consideration Tuesday, March 1.

Writing in a Thursday (24) memo, the Chairman said, “Use of methods and applications that make government communications inaccessible, and that inhibit, or disallow, public inspection under FOIA runs counter to the spirit of the District’s FOIA law, and flies in the face of the District’s commitment to government transparency. In order to ensure that the public’s access to official government communications is not being compromised, emergency action must be taken to preserve these records.”

The new proposal, he said “would require that all District government written communications, including those conducted via applications such as WhatsApp be appropriately preserved for Freedom of Information Act (FOIA) purposes.” (Reference to writing alone is unclear, as WhatsApp allows sending voice and video as well.)

The bill is here. Emergency legislation takes effect after a single 2/3 vote and without congressional review following approval by the mayor (or in the event of veto by the mayor, action by the Council to override the veto), and remains in effect for no longer than 90 days. Such quick and temporary action is authorized in the 1973 D.C. Home Rule Act, D.C. Code § 1-204.12(a). Permanent legislation requires a hearing and two separate votes (“readings”) in the Council.

The new legislation sends a message, though enforcement remains the practical hurdle. Indeed, the Open Government Coalition has argued for years the law is clear that officials’ business messages are government records no matter how sent and decisive executive action was needed to assure preservation, not new law. But the privacy was a feature, not a bug; encryption and also auto-erasure (now optional) were likely attractions for top officials who prize discreet communication channels.

Open Government Coalition President Thomas Susman wrote the Council:

“Over two years ago (in November 2019) the D.C. Open Government Coalition wrote Mayor Bowser observing that use of messaging apps like WhatsApp by D.C. government officials was inconsistent with both archiving and public-access requirements of District law. … We recommended:

The D.C. Open Government Coalition strongly urges you to immediately prohibit the use of WhatsApp and other text messaging apps by District employees for public business while procedures are developed or solutions are acquired to ensure that any such use results in the forwarding of messages for retention by the government.

“We have followed up more than once over the past 2 years, but still have received no response to this letter or our recommendation.

“As you know, the use of messaging for public business, which avoids the potential for public access or archiving for future reference, has become epidemic in many jurisdictions. We appreciate your recognition of the importance of the District’s Freedom of Information law and applaud your initiative to put D.C. in a national leadership position in addressing this challenging problem. The D.C. Open Government Coalition looks forward to the Council’s enactment of permanent legislation on the subject.”

The Coalition has written and advocated extensively since about the need to adapt interpretation and enforcement of the rules about record retention as technology outpaces traditional government record retention and retrieval systems. The November 2019 letter and attachments are linked and discussed in a blog post here. A more recent blog post covers developments in a D.C. Superior Court lawsuit that brought to light the D.C. mayor’s use of WhatsApp in communications during the January 6, 2021, insurrection, as well as the Maryland governor’s years of use of Wickr. A Coalition witness (this writer, Fritz Mulhauser) discussed the need to address messaging apps at an oversight hearing on Freedom of Information Act topics just days ago, Friday (25) with Chairperson Anita Bonds of the Council Committee on Housing & Executive Administration. She recalled “We’ve had this issue since the Blackberry–which only stored a little.”

Cuneyt Dil’s report on the bill for Axios D.C. is here.