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D.C. Council Returns to Work: Transparency Measures Pass and FOIA Threat Withdrawn

Fritz Mulhauser | October 12, 2021

Court Authorized to Give Limited Access to Redacted Eviction Case Files

Legislation passed last week (5) in the D.C. Council will allow eviction lawsuit records ordered sealed last year to be accessible again by application to the court and only for scholarly, educational, journalistic or governmental purposes.

Researchers, the press and the Open Government Coalition have been pressing for access, arguing it’s both assured by a long tradition of court cases upholding open records and essential to development of reliable knowledge on an urgent area of public concern.  

Following last year’s temporary sealing law, now renewed, 450,000 cases have been shut away from any public view, according to Council member Mary Cheh (D-Ward 3), speaking in a virtual breakfast meeting before the legislative session.

The usefulness of the access just granted remains to be seen. Case records will be stripped of tenant name and property address. Also unknown is how the court will assess the relatively high legal standard of “compelling need” that requesters must meet.  

Sealing all records rules out some studies the Council itself has relied on, including a dramatic report by Josh Kaplan in DCist last October. Kaplan spent months, supported by SpotlightDC (Capital City Fund for Investigative Journalism), tracing process servers’ steps through 10,000 pages of records of addresses, sworn affidavits of service and other details on file in 600 eviction cases. The data proved agents lied about serving lawsuit papers (known as “sewer service”). His piece led directly to new law tightening requirements and is a finalist for Livingston and Gerald Loeb Awards.

Members of the Council declined Coalition requests for greater openness for study purposes, fearing even with court supervision there could be a “loophole for landlords to identify people who were previously evicted but whose records are supposed to be sealed.” How this might occur is unclear.

The Coalition will continue to advocate so that the law allows the court to provide full records where needed for essential research, protected by a data use agreement with penalties for any breach. Courts are highly practiced in using their powers to enforce their own orders.

Other Actions Aimed at School Transparency

School ventilation. The Council required D.C. Public Schools to publish details of heating and ventilating system repair orders and tests of the results. In a lengthy September hearing on facilities issues, parents reported equipment problems despite Chancellor Lewis Ferebee’s statements last fall that $23 million had been spent on better circulation and filters. The Washington Teachers Union has particularly been questioning the results (and their testimony credited the Open Government Coalition with assistance obtaining repair records under the Freedom of Information Act).

Covid-19 in schools. New law also requires publication of more frequent and more granular facts about COVID-19 tests and infections of staff and students. For those not vaccinated, frequent tests are required. Anyone unvaccinated who had been near anyone testing positive is sent home. Mandatory vaccination for DCPS teachers and staff starts November 1, and legislation is pending for a student requirement beginning December 15. Meanwhile facts on testing, infections and quarantines have been confusing to parents, according to testimony at another Council hearing in September.

Council member Elissa Silverman (I-At large) gained approval for disclosures at the classroom level (not simply at school level as the chairman originally proposed), noting “more transparency is better; that’s what builds trust and confidence.” Council member Charles Allen (D-Ward 6) contrasted unhelpful notice of an infection somewhere in his child’s school. His own child’s risk would be hard to estimate as it is a large building with many floors and more than 500 students. “Information fights fear” he said; “the worst is an information vacuum.”

Without approved vaccines for the youngest and no mandate for the rest, D.C. has since August offered incentives to increase lagging youth vaccination. The District announced the award last week of the first $25,000 college scholarship to a charter middle school student, according to The Washington Post. Serious sickness among children is very rare but concerned parents find data still spotty; neither school-level vaccination data nor quarantines by ward are available, according to the same Post report.

Outdoor education equipment.  New law requires regular reports on orders and delivery dates for schools’ outdoor equipment. Parents and advocates such as EmpowerEd have argued for classes and activities outside where natural air flow creates safer conditions than inside crowded classrooms. Testimony at the facilities hearing reported multiple instances where furniture and tents have been promised but delayed.

D.C. Freedom of Information Act Slowdown Rejected

Council chairman Phil Mendelson proposed and then withdrew a provision to allow postponement of some public records requests under the D.C. Freedom of Information Act. His proposal allowed the COVID pandemic to once again justify indefinite processing delay under certain conditions. Requests to agencies still closed or requiring search in possibly risky storage spaces could be delayed as long as an emergency or related closure lasted.

The chairman acknowledged at the Council breakfast ahead of last week’s legislative session that he couldn’t estimate how many such places existed. He submitted it at the last minute when he realized his own shuttered Council office is not yet responding to requests and “we just don’t know” if there are others. 

Council work continues to be a mixture of remote and in-person. A Council vaccination requirement, also passed at this session, takes effect October 31. Executive agency staffs returned to work following the mayor’s order in July.    

Charles Allen (D-Ward 6) in the breakfast session explained he planned to move to drop the proposal, asking “where is any agency telling us they can’t comply?” He even questioned any government unit claiming to need exemption–“if there’s an office not doing it, they can.” Elissa Silverman (I-At large) noted FOIA delays mean “requests take forever” already and that she saw “no reason” to allow any further extension of agency deadlines.

Nationwide tracking by the Open Government Coalition has shown few states or localities officially limited FOIA processing to the drastic extent D.C. did, suspending deadlines from March 2020 to January 2021.

The chairman withdrew the proposal before any vote.

Other coverage of Council decisions at the October 5 session is in blog posts here (extending virtual meetings) and here (appointing a new interim director of the Office of Advisory Neighborhood Commissions).