D.C. Council Votes Major Open Government Improvements

Fritz Mulhauser | December 11, 2022 | Last modified: December 12, 2022

This week, the D.C. Council advanced government transparency, especially concerning criminal justice. For years and increasingly since 2020 following the police murder of George Floyd in Minneapolis the community and the Open Government Coalition have called for more information that can bolster police accountability.

The marathon Council action on more than 50 bills at its December 6 legislative session included initial votes on these:

• Opening all discipline records of officers in the Metropolitan and Housing Authority police departments, including internal investigations and civilian complaint investigations by the Office of Police Complaints (this access to be through the regular Freedom of Information Act records request process; a separate online database of some records will also be created)
• Requiring prompt public information including body-camera video of police-involved deaths and other serious uses of force (making permanent requirements that had been only temporary since 2020)
• Opening D.C. Jail to better inspection and requiring publication of information on deaths in custody

Press coverage of other high-profile bills – providing free bus rides in D.C., regulating gray-market marijuana “gifting” stores, and enhancing labor protections for domestic workers, among many — is here: DCist, DC Line, WaPo.

Open police discipline records is a giant step forward, as the Coalition urged and the Police Reform Commission agreed in its April 2021 report. Council Chairman Phil Mendelson introduced the legislation in July 2021.  District action follows the lead of Maryland recently and New York and California before that, based on criticism everywhere of opaque and often ineffective efforts to ensure police obey the law.  

Practical questions remain about making the records accessible via FOIA, foreshadowed by years of controversy that delayed effective access after legislation in other states. The Coalition suggested ways to strengthen the bill to ward off the familiar challenges at the Council committee hearing in 2021, during the drafting, and as legislation moved. The Coalition’s November 30 letter to Council members on the police bill is here.

The police bill includes the Coalition recommendation for an advisory group representing community and user groups and agency stakeholders. The group will analyze the experience that accumulates with the new FOIA access plan and the database and suggest improvements, since many details of the proposed law rest only on guesses. The Coalition looks forward to serving as one of the six nongovernment organizations included.

The new legislation supports the District policy that “all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.”  

But information drives action when it reaches empowered users, and the new measures add not only better information for the public, lawyers, and press but the possibility of stronger oversight by an enhanced police complaint office, jail watchdog, and a new deputy auditor for public safety.

Even with these multiple improvements, the Coalition remains concerned that other parts of the legislation this week took the opposite tack and closed government records, for example:

• Ending public access to D.C. medical examiner death investigation files that have been open for decades (by court approval though FOIA would have done the job also, as in 30 other states)
• Limiting immediate release of police body-camera video to cases where families of victims of officer-involved-death and use-of-force incidents have no objection (included in the temporary legislation since 2020 and now permanent)
• Limiting the new police complaint and discipline database to only sustained complaints and only incidents after the act’s passage (all complaints are typically open elsewhere, where police departments and unions lost secrecy battles in legislatures and courts)
• Providing automatic sealing of some court records of criminal cases and expungement of others to reduce misuse of such facts now packaged by data companies for business use in screening for housing, employment, or credit (though the legislation preserves access through the court to anonymized data for press and research use)

In each of these areas, legislators evidently acted from concerns for individual privacy that outweighed the community argument for open records as called for in D.C. law. The Coalition has opened the discussion with the Council chairman and members on further amendments before the final votes on December 20.

The Coalition will continue in the new Council session in January 2023 its advocacy against secrecy and for effective implementation of the existing Freedom of Information Act records access. For over half a century, that law has safeguarded privacy by exempting records that would be a “clearly unwarranted” invasion. And District agencies don’t hesitate to cite the law in rejecting requests thousands of times each year (more for this reason than any other and often overdoing it, for example in redacting police videos, according to the Office of Open Government).

Bills surviving a second vote December 20 are enacted if the mayor signs. The 30-day congressional review period starts January 3 and the new laws take effect after that.

Join us to review the 2022 year in open government when we return with the popular in-person gathering at the Coalition’s Sunshine Week “Summit” to be scheduled in mid-March 2023.