D.C. Council Oversight: Coalition Testifies on FOIA Funding, Enforcement and Application to Charter Schools (Again)
Fritz Mulhauser | February 18, 2020
FOIA First: Coalition Highlights Agency Failures to Prioritize Funding the Tech Tools Needed for 21st Century Online Access to Records
D.C. Open Government Coalition board member Bob Becker testified February 12, 2020, calling on the D.C. Council to repair outdated systems supporting mandatory public access to records and to straighten out ineffective FOIA enforcement.
His testimony came as the Council Committee on the Judiciary and Public Safety held its annual oversight hearing on the Board of Ethics and Government Accountability that now includes the Office of Open Government (OOG). The office enforces the Open Meetings Act and advises on agency compliance with the Freedom of Information Act (FOIA).
Becker urged the mayor and Council to “make records management upgrades a priority, set a schedule for designing and implementing those upgrades, provide incentives for meeting deadlines, and funding to implement upgrades that is separate from annual operating appropriations.”
Action is needed because agency heads historically have found staff and infrastructure costs of open government something they can cut with impunity if their regular operating budget is tight.
He made the point using the example revealed in a recent Office of Open Government opinion, done following investigation of a Coalition complaint. The Coalition asked for review of why 30,000 case opinions every year remain buried in the Office of Administrative Hearings files, in violation of D.C. FOIA requiring online access. Office leaders say they can’t afford the $200,000 computer software needed. The D.C. Auditor in 2016 urged the OAH to set a schedule for the project. A September 30, 2019, date the agency promised to the Council also passed without action. (The Coalition blogged here about this opinion on OAH failure to post opinions.)
Becker pointed also to the problems of enforcing compliance with rules for agencies processing requests under the D.C. FOIA. No executive branch agency oversees agencies’ FOIA performance. Coalition experience and many reports from the community show agencies plead overwork or just disagree, as they bury formal opinions on appeals that call out unlawful delays or mistakes. (The mayor’s Office of Legal Counsel decides FOIA appeals. The office statistics for years have shown reversible errors occur in around half the adjudicated appeals.)
Becker, an experienced FOIA attorney who successfully argued the Coalition’s position against D.C. Council FOIA violations in the McMillan Reservoir case in the D.C. Court of Appeals in 2015, noted “experience and a multitude of court decisions demonstrate that agencies willfully withhold records, especially when disclosure would cause embarrassment or scandal.” This means “the Council needs to provide meaningful, effective enforcement mechanisms to all FOIA requesters, not only those who have deep pockets [to go to court].”
Becker added the Coalition’s longstanding recommendation that the Council move FOIA appeals from the mayor’s office to the Office of Open Government that could be empowered to bring accountability to the system. “We recognize that the mayor will resist efforts to transfer administrative adjudication of FOIA complaints to the OOG. But it is time for the Council to seriously consider legislation to accomplish that” since it could add a process of enforcement now missing in the law. He added that the Council should also provide OOG the authority to subpoena witnesses and hold hearings if necessary in complaint investigations.
Council member Charles Allen, chair of the committee, agreed with the “very good point” that “we need to invest in the systems that allow government to meet expectations” for FOIA publication of certain records without request. He agreed also that there are problems with FOIA enforcement.
But perhaps as his committee now lacks oversight of the FOI law, placed since 2016 in the jurisdiction of the Committee of the Whole, he didn’t explore either topic further.
Public Witness Seeks Exemption from Open Meetings Act for School Advisory Groups
The drama in this oversight segment came in testimony from a school volunteer who objected to Open Meetings Act duties she now faces as chair of the Local School Advisory Team (LSAT) at Maury Elementary School. This D.C. public school, located at 1250 Constitution Ave., N.E., enrolls about 300 students and has an engaged parent community (its PTA published a $235,000 budget this year).
She testified about the “unfair burdens” on volunteers whose sessions of advice to school officials on budget and plans must now be open and where conflicts have turned into arguments over procedural fine points.
The Open Meetings Act (OMA) that her group must now follow, she said, has proved “very complicated, confusing and burdensome.” Prior rules from D.C. Public Schools were enough; applying the stricter law, she said, has yielded few benefits and instead proved “ripe for abuse.” Through a series of complaints by one person last year the law has become a “blunt instrument of harassment” directed, she said, against her personally.
She gave no background facts or data to support her dramatic conclusions such as (because of the complex rules) “Maury is probably the only LSAT complying”; the law will discourage citywide parent involvement; and public access requirements could even create “security risks” at schools.
Application of the citywide Open Meetings Act requirements followed an Office of Open Government opinion last year after an investigation that sustained complaints at several schools about highhanded LSATs. Problems included nonmembers excluded from meetings, discussion documents shared with insiders only, and FOIA requests stonewalled. Maury Elementary School was itself the focus of another review and an advisory opinion last year.
At the hearing, chairman Allen sympathized and offered further consultation to resolve the specific problems. He did not respond to the idea of adding a new LSAT exception to D.C. open meetings law. The Coalition has from the start opposed an exemption in the law from the outset for meetings of Advisory Neighborhood Commissions, cited by the Maury witness as a model for freeing civic volunteers from strict rules.
FOIA and Open Meetings in Charter Schools
Fritz Mulhauser (this writer), a Coalition board member and co-chair of its Legal Committee, testified also on February 12, 2020, to another oversight hearing, this one on education, to stress a Coalition priority, expanding the Freedom of Information and Open Meetings Acts to include the 123 charter schools and their boards (not just the authorizer, the Public Charter School Board).
His comments came in the annual oversight hearing on the charter board and Deputy Mayor for Education, a joint session of the Council Committee of the Whole and Committee on Education. His prepared statement is here. Video of the hearing is here; the oral testimony begins at 2:01.
This hearing’s 60 witnesses offered no other testimony on transparency, unlike four Council and charter board hearings last year. There, charter teachers and parents urging greater openness clashed with charter administrators, board members and advocacy group leaders who argued the present limited information access should be enough and further imposition would infringe charter autonomy. Whether pending legislation to accomplish FOIA and OMA expansion will advance in the rest of the current Council session this year before elections remains unclear.
The Coalition statement recalled the two-part consensus worldwide, and across the states. First, that the right to government information is an important value. Second, that we agree as a society to shoulder some added costs to carry out that commitment, just as we do in dedicating resources to carry out other important rights such as due process of law, access for the disabled, and nondiscrimination.
Backed by specific legal grounds and data, the Coalition rebutted common opposition points: confidential business or student data are not at risk, burdens are small as shown in Coalition research in other states, and last year’s attorney testimonies forecasting burdens came from witnesses’ experience in bitter corporate FOIA litigation in federal court that has no relevance in the world of community requests to local schools.
The Coalition closed by offering suggestions for changes in the pending bills on FOIA and Open Meetings. These could deal with any unexpected burden the new laws might place on charter schools, recognizing how they relish freedom from government imposition.
For example, changes from typical application in government agencies could include routing charter school-level FOIA requests through the Public Charter School Board. Staff there are knowledgeable from their experience handling one or two requests a week in recent years. (The mayor’s annual FOIA report issued since the hearing confirms that requests last year to the PCSB again totaled under 100, mostly handled on time and granted in full, and required less than one person’s time.)
Further, the new law could both mandate assistance now from the Office of Open Government and acknowledge that other future assistance may be needed if solid data show significant burdens arising. Finally, access to sensitive salary data could be delayed a year or two to give time for corrections.
Education Committee chairman David Grosso, in a brief response, noted only that the committee in October had marked up a budget process bill that included a limited application of the Open Meetings Act to charter boards. (See Coalition blog post on this markup here.) That bill is now pending before the Committee of the Whole. Mr. Grosso implied advocates would need to look there for further expansion of transparency in the charter sector.