Community Messages Get Through: OAH Chief Judge Promises Plans Soon for Publishing Opinions
Fritz Mulhauser | March 27, 2022 | Last modified: March 28, 2022
The chief judge of the D.C. Office of Administrative Hearings (OAH) told the D.C. Council Friday (25) that she will provide a timeline soon for publishing the decisions of the office’s three-dozen administrative law judges. The office issued almost 9,000 decisions in Fiscal Year 2021 on challenges to D.C. agencies’ alleged errors ranging from multi-million-dollar tax mistakes to incorrect denial of an unemployment benefit or eviction of an unhoused person from a shelter for no good reason.
The promise came in an exchange between Chief Judge M. Colleen Currie and Council member Robert C. White Jr. (D-At Large) during a hearing of the Committee on Government Operations & Facilities on the OAH budget for the coming fiscal year that begins October 1.
Three public witnesses, including this writer, testifying for the D.C. Open Government Coalition, Danielle Burs for the Council for Court Excellence, and Alexis Christensen for the Legal Aid Society of D.C., posed a question familiar from many past hearings—whether the opaque budget details include support for the technical innovations and staff work needed to put opinions in a searchable online archive.
As several external reviews of the agency have reported, OAH opinions are not available to the public though required by law for decades and a best practice in courts and administrative hearing offices nationwide.
OAH leaders have in prior years brushed aside calls for publication by the D.C. Auditor and the Office of Open Government in audits and formal legal opinions. The OAH typically has cited budget and staff limits, though without seeking needed increases. The public witnesses at Friday’s hearing suggested the most recent slowdown, attributed to IT staff turnover (both positions vacant according to OAH data submitted to the Council in January) could be linked to the stress of a crushing office-wide workload for only two people, leaving no room for planning new functions.
In fact, as many as five IT staff may be needed, according to OAH staff speaking anonymously to the Coalition for fear of reprisal, to support over 100 judges and clerks. Work in a court-like environment of case allegations, factual records, laws and rules, and hearing testimonies, depends almost entirely on the tech-assisted flow of information.
Several staff could be fully engaged in one task alone, troubleshooting and “help-desk” demands of the virtual hearing and court-reporting technology needed by dozens of judges holding thousands of electronic sessions. The OAH formally reported to the Council earlier this year (in Q.63 of prehearing responses), “The demand on those two positions has exceeded their capacity, which has in some circumstances negatively impacted case and workflow. To improve workflow and increase overall agency efficiency, OAH needs additional support staff, as well as a more robust and well-staffed IT department.” IT staff are of course a scarce resource in the labor market generally, with one talent firm reporting “by the end of 2020 [in the U.S.], there was 1.4M unfilled Computer Science jobs. Meanwhile, the number of graduates is only 400K a year.”
The chief judge declined to request more IT staff slots, saying she’d assess needs after seeing the two new people at work.
To assure progress in the long-awaited publication effort, the Open Government Coalition called on the committee to require this year from the office a specific set of milestones showing action to be done and the resources needed, along with quarterly progress reports. (Submissions to the Council required after last year’s budget hearings and committee budget report, obtained by the Coalition in a public records request, proved unspecific as to the publication plans.)
Answering questions at the virtual hearing on the FY23 budget, Judge Currie said the vacant IT staff positions are now filled so she hopes to resume planning building on previous incomplete efforts, and her “timeline is as soon as possible.”
To the question whether the budget is adequate, the judge said, “it depends on the cost.” Such details have been requested for a long time.
Chairman Robert C. White Jr. pressed for a detailed response, warning he wanted no more hearings without a timeline of planned actions.
“I want to make sure we don’t come back to [future] hearings and people are asking us about this [opinion publication], and we don’t have a timeline.”D.C. Council member Robert C. White Jr. (D-At Large) – OAH Budget hearing 3/25/22
The chief judge asked for “a couple more months to be sure I have solid information.” She agreed to submit a plan by the end of May but held out the possibility of yet more delay if she wasn’t ready then.
The chief judge gave the most detailed account yet of ideas under consideration. She noted that the District’s technology office (called Office of the Chief Technology Officer, or OCTO) has developed a potential solution for some other agencies that may work at OAH.
OAH officials have in the past repeatedly attributed delays in its work on the publication issue to issues with the California-based vendor Journal Technologies. The firm provides the existing OAH case management system called “eCourt.” An existing local solution no doubt looks attractive.
The Coalition and others have observed that an office that serves over 10,000 litigants each year needs to provide public information online from its in-house database that tracks cases. That is a digital convenience commonly demanded by the public from courts and administrative panels everywhere. (See a survey of nationwide court practice in response, prepared for the D.C. Court of Appeals.) And the vendor’s website notes cheerfully it’s up to any challenge, that their “off-the-shelf solutions do not require you to change processes…to meet your unique needs now and in the future” — such as for functions long-missing at OAH, including e-filing and a public-facing website.
The case research tool developed by OCTO can be seen in use now in two D.C. agencies also facing publication requirements in D.C. law. One is for cases decided by the Public Employee Relations Board (PERB) and the other is for cases at the Office of Employee Appeals (OEA).
Each agency provides the public an online table of cases showing case number, date opened, case type, parties, and a link to the opinion (as a file in .pdf format). A user can search the table for opinions by date or date-range, case type, or by one or more words in the opinion (presumably including party, judge, law or regulation involved, etc.).
Whether the table is workable for OAH staff, and whether users of the OAH information will find that type of table and search function useful, are unknown. The PERB and OEA are very small operations; each issues no more than a hundred decisions annually. The case research tables now available online go back years and include 1,726 (PERB) and 2,595 (OEA) opinions. OAH judges issue that many decisions in a few months.
A table allowing searching and retrieving only opinions meets the letter of the publication law and will be a welcome step forward. The Coalition advocacy, however, has been for broader online information and functions such as e-filing (not via attachments to emails as at present), a docket and access to other case records (as for example in D.C. Superior Court). That gives the public what it expects of government in the 21st century and also allows staff efficiency.
A docket (showing events and filings in each case) immediately helps reduce the flood of phone calls to the clerk of court just to learn hearing dates or other updates on case details (“was my paper received?”). It also responds to a broader requirement in the original OAH establishment act (beyond access to opinions), that “all documents filed in any case before the Office shall be available to the public for review unless a statute, protective order, or other legal requirement prohibits disclosure.” D.C. Code § 2-1831.13(d).
Choosing the OCTO case research table leaves those desirable open government features of the office for another day.
In the budget hearing, the judge did not offer plans for user involvement in further design. The Coalition recommends the OAH settle on details of the next generation of public facing information—since upgrades are needed in texts and videos on how to file, how the Office hearings work in the virtual age, and the main topic here, of case file access—only after consultation with those who will use these features. And the Coalition renewed its longstanding offer to assist in assembling an advisory panel of users such as many courts report to be invaluable (see study for D.C. Court of Appeals cited above).
Such consultation is a best practice in developing software and web interfaces for the general public, now even mandatory in federal agencies as the White House announced in a December executive order.
The Coalition written statement is here. The hearing video is here, with Coalition testimony at timestamp 0:16:20. Chairman White’s discussion with Chief Judge Currie about the publication issue begins at 2:31:20.