D.C. Court Decides Mayor-Council Conflict Over FOIA Law: Upholds Online Publication Requirement

Fritz Mulhauser | July 24, 2021 | Last modified: April 1, 2022

UPDATE: The District filed its initial notice of appeal August 5, and asked the courts to stay the orders of Superior Court Judge Pasichow. Action shifts to the D.C. Court of Appeals, Case No. 21 CV 543. An average appeal takes over a year. In its stay request, the District again argued that the E-FOIA requirement that budget requests from agencies to the mayor be published online invades privileged communications of the executive branch and exceeds the lawmaking powers of the Council. The decision left ambiguous whether D.C. must post only the budget materials the plaintiff asked for, or all those missing (the last several decades’ worth). In a supplementary order August 20, the court made clear: “‘the Defendant SHALL PUBLISH the required documents pursuant to D.C. Code § 2-536’, means exactly as it is written. D.C. Code § 2-536 specifically enumerates certain documents that the D.C. Council required the government to publish not just the 2019 documents that the Plaintiff’s requested.”

A D.C. Superior Court judge has given the mayor till August 5 to release records of the internal budget process before mayoral decisions—records closely held and usually denied under the Freedom of Information Act.

The case, decided the 23rd by Associate Judge Heidi Pasichow without a trial, began when lawyers for the youngest children eligible for special education sued to obtain budget requests sent forward to the mayor from the responsible “state education” office. They aimed to understand disconnects between funding needs submitted and final budgets. Those could explain the District’s slow pace of satisfying a federal court order to end years of failure to find and serve the vulnerable children.

Ordering records released to a requester is routine when courts reverse government public records denials. But this action marked the first time a D.C. court enforced a little-known part of the FOIA law that requires online publication as well for this particular type of records.

The Council in FOIA amendments passed in 2000 directed the budget requests be posted online, along with 11 other kinds of records of each agency’s staff, spending, policies, manuals, meeting minutes, opinions in decided cases, and more (even absentee property owners and pending building permits), all to be available without need of the time and trouble of a FOIA request.

As rules for open meetings and open data have evolved, allowing other routes to access some agency information, the publication requirement has been widely ignored by D.C. agencies. To any questions, officials have standard answers: aging IT systems can’t cope with 21st century records volumes and growing Internet complexity, and staff and budgets are too limited to support the needed upgrades.

The D.C. Open Government Coalition has researched the facts of noncompliance in audits beginning in 2010, and the Office of Open Government has found the same after investigating a number of Coalition complaints. (See agency noncompliance found at OSSE and OAH.)

Even so, the D.C. government executive branch has never enforced the requirement, and no case challenging that lax approach has reached the courts until this one. Curing long-delayed publication shortfalls can cost millions in extra funds from the Council, as in the case of Department of Consumer & Regulatory Affairs which had ignored the building permit E-FOIA publication requirement (and the nationwide trend of digitized building records) for years.

The District in its court filings didn’t plead the familiar litany of feasibility barriers. Instead the mayor’s lawyers offered a new theory that the law is fatally flawed and the court must dismiss the idea of releasing agencies’ budget requests in any form to anybody, by publication or otherwise. Among a barrage of arguments, they claimed the requirement should not be enforced as it

• unlawfully invades the mayor’s “exclusive fiscal authority” to develop the budget,
• falls outside the Council’s powers under the 1973 Home Rule Charter passed by Congress, and thus
• the Council “lacks authority to participate in the executive deliberations that precede the Mayor’s initial [budget] determinations–or to make them public.” 

When this challenge to legislative authority surfaced in the case last year, the D.C. Council took the unusual step of getting the court’s permission to enter the case to speak for itself. In an amicus brief in October, the Council’s chief lawyer offered the court extensive research showing “there exists no support for the notion” of such exclusive mayoral powers or limits on the Council.

In the new opinion, Judge Pasichow decides in favor of the children’s lawyers (and the Council), finding the better reading of history and law to be that budget-making is collaborative, not reserved for the mayor alone, and that legislating that information about it should be public is well within the Council powers.

With those conclusions in hand, the court showed no hesitation about its own authority, reversing the denial of records and ordering the mayor to both release the records to the requester and publish them online as the law has required for two decades.

The DC Line reported the opinion with a comment by D.C. Auditor, Kathy Patterson. In her second term as D.C. Council member from Ward 3 (1998-2000) she chaired the Judiciary Committee and authored the FOIA amendments bill that included the E-FOIA details. She noted publication of budget requests and related records was aimed at shedding light on agency budget needs to be explored in Council oversight.

“It’s good to see the court supporting the authority of the legislature as well as the public’s right to know,” Patterson said in a statement. “Let’s see the extent to which the Council takes advantage of the opinion.”

If the District chooses to challenge this decision in the D.C. Court of Appeals, attorneys must notify the court within 30 days of the opinion date. Several federal circuit courts of appeals have ruled that courts may enforce the similar provision in federal FOIA and have rejected the sole contrary ruling by the D.C. Circuit.

The case is Terris, Pravlik & Millian, LLP v. District of Columbia, No. 2020 CA 003087 B.