D.C. Transparency Watch: Mixed Picture Continues of Openness and Secrecy in Legislature, Agencies and Court

Fritz Mulhauser | April 29, 2020 | Last modified: May 5, 2020

Here’s a roundup of open government news items in recent days as we all await the uncertainties of reopening our life together at work, school, government and recreation.  

The Role of the Public Unclear in Upcoming D.C. Council Budget Hearings

The biggest public tournament of values each year is the D.C. Council decision on spending priorities. The drama unfolds in the annual budget process where the mayor’s proposals are traditionally reviewed line by line in each Council committee. The cycle features crowded hearings as members question agency officials, hear citizen testimony often into the night, and draft voluminous committee reports explaining allocations and directing agency spending. Infection fears have ended all public work by Congress in deciding billions in virus emergency funding. Likewise, the D.C. Council has met virtually to decide emergency bills, delayed the mayor’s budget from March to May and scrapped public hearings. But there are as yet few details of how the public will be heard on the District’s 2021 budget—especially as key priorities must be set for handling multi-billion-dollar budget cuts.    

Lawmakers will decide at final votes in July how to balance the budget (unlike Congress, D.C. can’t borrow to pay bills) where almost $1.5 billion in lost revenue is expected. That figure is the latest forecast for the current and coming year, according to Chief Financial Officer Jeffrey DeWitt’s official revenue estimates briefed last week to the mayor and Council Chairman Mendelson (with the rest of the Council present by video). The mayor presents her full budget at the new deadline of May 12. 

DC-area local governments are moving to some type of remote participation, according to Martin Austermuhle’s report last week (23) for WAMU. D.C. Council Chairman Phil Mendelson told the reporter he expects to “make it work,” possibly even letting people leave voicemail testimony that is then transcribed for lawmakers to read. Austermuhle quoted Mendelson’s hopeful view, “I think the hearings will be tighter. But people will be able to testify. This will be a more deliberative process, rather, without all the drama.” Some were nervous when Chairman Mendelson said on a live Facebook program a week ago, some hearings would be invitation-only (perhaps only sessions with exective0brfanc h witnesses).

Lindsey Walton in the chairman’s office told the Coalition today (29), “The remote process requires relying on virtual hearings and the technology has limitations including security considerations and technological limitations with broadcasting the hearings live (likely meaning one hearing at a time). We’re doing the best we can to get the information on hearing dates out as soon as possible.” UPDATE: Late today (29) the Council posted a schedule of committee hearings May 14–June 11 and markups June 16-18 here. Walton advises that “individual committees’ hearing notices should have detailed instructions on how to sign up, how to send in testimony, how to submit a transcribed testimony, and Zoom “attendance” of the hearings.”

As with many crisis work-arounds that may be worth keeping, is this an improvement in open government? Austermuhle quotes a Montgomery County council member’s view that the transition to online-only hearings seems to have advanced important citizen access values. That member, he wrote, saw it during budget hearings the council held last week. “I did notice that there was a larger number of participants speaking in different languages, which I think is an indication that it’s more accessible for people to be able to provide public testimony from their homes, not having to travel to Rockville and feel more comfortable in that space. So in that sense, it’s been very helpful.” Mendelson reported his own experience of much greater turnout at his latest online citizen sessions, in contrast to seeing the same dozen faces at traditional Saturday coffee stops.  

Federal Courts Open Telephone Hearings

The public can now dial in to hear what’s going on in virtual hearings in civil cases in the U.S. District Court for D.C. Instructions and a list of call-in numbers for each judge came after repeated inquiries by the D.C. Open Government Coalition and others. The question: how can the public follow as three different judges hold telephone hearings to consider dramatic civil rights cases brought by 2,000 residents detained in two D.C. Jail units, the psychiatric hospital called St. Elizabeths and the Hope Village halfway house for returning federal inmates. Court filings several weeks ago included personal accounts by residents and statements by experts. Lawyers said they show official negligence or even indifference to the dangers as the virus has rampaged through close quarters that residents are not free to flee.

Judges in the jail and hospital cases have issued unusual “temporary restraining orders” calling for fast action to improve procedures for residents’ safety and health. Attorneys for the District and the residents presented dueling depictions of conditions and risks, leading the court in the jail case to order a special investigation by an outside team that had full access to the jail’s two buildings, staff and residents. The judge in the hospital case proposed a similar review in a Tuesday (28) hearing and ordered the parties to confer and propose experts to quickly inspect the building, talk to people and report back what’s really going on.  

The halfway house is closing and residents are released or in other federal facilities. With mounting infections at the other two (127 residents tested positive and one has died at the Jail; 48 at the hospital have tested positive and 9 have died) and infection sidelines staff as well, the facts and arguments in the ongoing cases are of wide interest in the community.

The jail case, Banks v. Booth, No. 20-cv-0849, is being heard by Judge Colleen Kollar-Kotelly. Her dial-in number is:  866-390-1828 and the access code is: 9159943. The next hearing is May 11 at 2:00 p.m.

The St. Elizabeths case, Costa v. Bazron, No. 19-cv-3185, is before Judge Randolph Moss. His dial-in number is: 877-336-1839 and the access code is: 4817814. The next hearing is May 7 at 2:00 p.m.

Hearings are shown on the court’s online calendar.

Four Other Secrecy Sightings

Exhibits in recent days of disappointing judgments: D.C. Jail cloaks in secrecy its virus response plans and released residents’ names; D.C. Council meets privately with powerful interests; and too many nursing homes (though not in D.C. with recently-begun data release) are silent about the virus situation among residents and staff.

• D. C. Jail releases. The names of 80 or more who have been released early from D.C. Jail to help reduce crowded conditions during the pandemic are a secret. The Department of Corrections told requesters under the Freedom of Information Act recently that they don’t release such lists to protect the individuals’ privacy. Many have been released by the court upon motion of defense attorneys; some sentences expired; some sentences were reduced under new calculations of good time authorized by Council emergency legislation. No personal medical facts are involved. Court actions are public, available in the Superior Court online database. But you can’t find the orders unless you know the names. Which are secret. The secrecy is odd since D.C. funds an online database of all jail inmates that any member of the public can query to learn if an individual is in custody or released. The VINE system fulfills a crime victim notification requirement in D.C. law, but use of it is not restricted to crime victims. (Check it out here: https://vinelink.com/classic/#/home.) Privacy concerns also don’t seem to limit federal information sharing. A nationwide Bureau of Prisons database allows anyone to locate a person now or previously in federal custody. See https://www.bop.gov/inmateloc/. Release of personally identifiable information always involves balancing interests, public and private; public interest in special early releases, even of those less notorious than Rayful Edmond III, is understandable; the privacy argument, in light of all the existing access, is not.  

• D.C. Jail pandemic response plans. The D.C. Jail plan for handling the pandemic is secret. Attorneys in the Public Defender Service and the ACLU of DC, suing on behalf of the detainees, of course wanted to see it. But D.C. attorneys released the plan only on condition (explained in a secret memo to the court) that the document is sealed. A dozen years ago, the last time D.C. claimed its jail emergency preparedness plan was secret, the plans ended up public and D.C. suffered through embarrassing publicity including a lawsuit and a scathing piece by Arthur Delaney in Washington City Paper. UDC law professors Matt Fraidin and the late Will McLain III had done emergency legal work in New Orleans after Katrina. They learned how thousands of inmates in the Orleans Parish jail suffered through horrendous conditions as they awaited rescue after officials decided not to evacuate. Back home, the duo asked officials here for the plans showing how D.C. would care for its prisoners in emergencies. D.C. refused, trying various theories but eventually settling on a laughable FOIA exemption for materials whose release could assist terrorists. The professors’ lawsuit was going well, but ultimately proved unnecessary when the District’s Keystone Jail Cops released the plan by mistake as an attachment to something and the plan also turned up on the Web.

• Council gives special access to major business group. District business leaders acting in a new coalition called “DC2021” scored an unusual private session April 16 with the D.C. Council that appeared to violate the Council’s own open meetings rule. Just days before official estimates of massive revenue downturns brought budget-making and priority-setting into sharp public view, this meeting allowed the group quiet access by nonpublic video and teleconference. A meeting of a quorum of the Council where public business is considered must be announced publicly and open. (The rules lack any enforcement teeth, in contrast to the Open Meetings Act regulating meetings of public bodies under the mayor.) Press coverage by WAMU’s Martin Austermuhle and the Post’s Steve Thompson of the breathtaking request for hundreds of millions in tax abatements and other measures to stave off business losses resulted when the lobbyists themselves talked about the session. The top-shelf presentation graphics appeared on the website of the Venable law firm. Warnings from the opposition about multiple priorities that need to be balanced surfaced quickly, led by a Tweet from an official of the D.C. Fiscal Policy Institute that others amplified. Former D.C. Council member Jack Evans passed the DC2021 materials to Post columnist Colby King, a former banker, who wrote about the gloomy forecasts with memories of the near-bankruptcy of the District after a spending spree in the 1990s and the tough choices ahead, “especially for a wing of the D.C. Council that believes no public wish should go unmet.”

• Nursing home secrecy on virus effects on residents and staff. Coronavirus infection rates in nursing homes are secret a lot of places, but thankfully not in D.C. with a shift just days ago to publication of facility-level data. But generally, did you think someone was making sure that facility residents, their families, and the general public know whether and to what extent a facility’s residents and staff members have contracted COVID-19? Think again; transparency rules are a mess. The Post’s Rebecca Tan and four colleagues reported online last week (24) and in Monday’s Metro front page that the new D.C. data shows 13 homes here have reported 199 infections and 15 fatalities. County health departments in the DMV area publish such data as well, but the states of Maryland and Virginia do not, nor do they require family or public notice, citing privacy of patients. Individual nursing homes are privately operated (though heavily government-supported and regulated) and appear to be setting their own rules; the reporters found many who refused family and public inquiries about infections and deaths. The Post’s Peter Whoriskey and Maria Sacchetti reported a national story on limited disclosure of nursing home virus cases in March (noting CDC refused to share their list). Federal regulators have belatedly issued a requirement that homes update families, CDC and local and state officials (but not the public) on virus cases. The guidance, according to Tan (and Justice in Aging, which wrote the government this week urging improvements in the guidance), lacks many key details including enforcement. Unrepentant Maryland officials told Tan that disclosing which facilities have coronavirus cases “serves no useful public health purpose and could lead to identification of specific persons who have tested positive for the disease.” The Washington Post editorial board fired an unusually angry broadside in Tuesday’s (28) print edition. Listing a half-dozen states still keeping facility names secret after virus cases are found, the piece called the practice “akin to refusing to identify an airline whose plane has crashed” and “the effects of government negligence and lack of transparency incalculable but profound.” Finding “available data are staggeringly incomplete,” the editorial board urged both greater regulation and more open data, concluding “The absence of transparency and data put not only the facilities but also the public in the crosshairs of the virus.”