D.C. Transparency Watch: Your News Roundup on Open Gov’t Litigation, Agencies, Press, Coalition Doings — and Advice on an Open Government Holiday Gift

Fritz Mulhauser | December 5, 2019 | Last modified: October 14, 2020

Increased access to body-cam video

The D.C. Council moved quickly without hearings or markup to pass a bill December 3 that will grant next-of-kin easier access to police shooting videos. Long waits for the bereaved were reported in powerful testimony at the Council roundtable in October when families, activist groups and the Coalition discussed how camera footage in many ways is not as open as could be.

 “In the instance of police-involved shootings, the lack of access by close relatives such as the parents of the subject do not meet the transparency goals that the body-worn cameras program was designed to afford,” said Ward 8 Councilmember Trayon White, who authored the bill, during Tuesday’s legislative session.

Current law gives only those captured on the video direct access; all others must make Freedom of Information Act requests, which can be delayed for months as police investigations drag on and allow officials to claim an exception to release under the law.

The emergency legislation takes immediate effect and lasts 90 days; such bills are usually replaced by permanent legislation in due course. Martin Austermuhle covered it here for DCist.

FOIA at work in Washington Post education coverage of hot topic of selective D.C. high school admission

Post reporter Perry Stein used the D.C. open records law to get data for her December 1 story on fairness in selecting students for the eight elective D.C. high schools such as School Without Walls. Stein draws on wide sources including a Brookings researcher, the D.C. Auditor, “city data” as well as reports on similar concerns in other cities.

But testing is sensitive and unhappy results may be closely held so it apparently took the force of FOIA law to pry loose the fact that at one District application school only a handful of those admitted had actually passed the PARCC exam in middle school, supposedly a selection factor. The story didn’t say how admission was granted without that passing score.

Because of the low PARCC passage rate in many D.C. middle schools, the article reports the chancellor has announced such test results will no longer be required for the selective schools’ admissions process. Yet the Post also reports, again without explanation, that School Without Walls will continue to use its own admissions test.

Maybe it’s time for more digging by researchers, the Council, the Auditor, and reporters into why that Walls exception is allowed and whether there is evidence that the Walls test is any better kind of filter than the national PARCC exam that was years in development? The story makes clear most cities are recognizing that talent, drive and accomplishment come in many forms not revealed by paper and pencil tests.  

The Coalition earlier made FOIA requests to learn about the Walls test. First we asked for financil records of buying a test and paying for independent scoring. DCPS wrote back that they have no records showing purchase of any Walls test or scoring by an outside vendor. And we asked for any record showing the name of the test, as legal action in other cities has revealed a number of commercial private secondary school admissions tests (complete with online prep classes) used in selective public high schools. DCPS released the test covers but they show no test author name or developer logo.  

Washington City Paper offers guide for D.C. FOIA appeals

This week’s WCP roadmap to imaginative “how-to gifts”  for low-budget holidays includes their “Loose Lips” columnist’s succinct 423 words on how to “give the gift of information.”

How? “By helping a loved one file a FOIA appeal.” Columnist Mitch Ryals He channels James Madison, asking what better gift there could be, “Especially if that information is enlightening, interesting, scandalous, or otherwise sheds light on how elected officials are behaving.”

He gives lots of practical tips, plus side notes: “Price: $0, plus a tiny portion of your soul” and “Prepare. Get yourself a glass and pour two fingers of your preferred brown beverage.”

It’s not that hard, really. Thanks to Loose Lips for shout-out to Open Government Coalition as a source of help. Our Coalition website has plenty of FOIA how-to details here. And if your brown beverage and patience run out, call or email and we’ll try to help.

Washington Post FOIA lawsuit update

The D.C. Superior Court test of the D.C. Council’s latest FOIA denial ended before it got started. Dismissed by the Post November 21, the case challenged the Council’s denial of Post reporter Steve Thompson’s request for appointment calendars of Councilmember Jack Evans. Council lawyers improbably argued they were exempt as evidence requested for investigations by the Council and the federal grand jury. That seemed a stretch as the records are ho-hum office materials, routinely created years ago, not at all the closed-door testimony that grand jury secrecy laws typically are invoked to protect.

Attorneys on both sides traded detailed reviews of the law but came to no resolution; the legal issue now waits for another case. Sources tell the Coalition that the Council changed its position and offered records (partly since events in the Evans investigations moved forward swiftly), making the lawsuit unnecessary. We wrote earlier on the case, WP Company LLC v. Council of the District of Columbia, No. 2019-CA-006364 B, with link to the complaint that has attachments showing the exchange of letters on the law.

Coalition holds fall forum

Board members met with interested community members over pizza and beer November 12 to hear concerns with the working of D.C. open government laws and ideas for projects of research and improvement for the new year. Guests included colleagues from the Project on Government Oversight (POGO) and Reporters Committee for Freedom of the Press.

POGO experts noted public interest in whistleblowing, stimulated of course by the dramatic complaint of a federal employee in the intelligence community (through elaborate internal channels set in federal law) alleging that national security was threatened by parts of the President’s July telephone call with the leader of Ukraine. Whistleblowing is a form of “involuntary transparency” where information comes to light when government employees tell higher-ups about hidden wrongdoing. Those doing it by the book are to be protected against retaliation. (It’s not the same as leaking.)

POGO works on many federal government matters where they have pushed for fair treatment for those taking the risk of revealing unwelcome facts. They asked the Coalition if D.C. law is protective enough if a District government employee needs to speak up?

The Coalition has a guide to the D.C. whistleblower law on its website but agreed to work with POGO experts to review local law as the public is newly aware of the importance of protecting such necessary disclosures and preventing reprisals by the powerful who may oppose them.  

RCFP announced a project in which they will survey journalists about their experience accessing MPD body cam video. They plan a white paper on the subject later in the year.

The Coalition distributed a new community handout curated by Coalition board member and open government reporter Miranda Spivack on “how open records and open meetings laws can work for you” with interesting examples of uses of D.C. law and how-to information.  

Audience suggestions for the Coalition to explore (other views welcome) included:

• Evaluate D.C. Council oversight of agencies’ sole source contracts (case study of expensive annual tenant conference, involving costly amenities and venue)
• Look at transparency in relation to the central D.C. policy puzzle–more affordable housing. That is, are information gaps a problem? (For example, limits on audit access, or on FOIA access when DCRA ignores appeal decisions that reverse denials and order requests granted.)     
• Give an annual award to a D.C. agency needing the most improvement in transparency. This would mirror the Rosemary Award named for President Richard Nixon’s secretary, Rosemary Woods, infamous for her 18.5 minute erasure of White House tapes. The award is given by the National Security Archive for the worst open government performance by a federal official or agency each year. Does D.C. need this? We Tweeted a request for suggestions for a catchy locally resonant name for the award.

The Coalition will hold its next community gathering to celebrate Sunshine week in March 2020. Details at our website events page as the date nears.

Other matters we’re watching

• Six school names (schools where there were substantiated sex abuse complaints) – no records yet in response to our FOIA request. The mayor’s FOIA appeals office looked skeptically at both DME and DCPS “no records” answers and told agencies to try harder. So we’ve had some negotiations but no hard news. Previous blog here.
• MPD officer public hearing records – PDS attorney lawsuit continues, seeking record of a public trial of officer misconduct that MPD believes can be kept secret. Court docket suggests some records have been released but next court date will show details. Phillips v. D.C., 2019-CA-4054; December 20 at 10:00; Courtroom 516. Previous blog here.
• New ANC FOIA case filed – a lawsuit filed November 8 by Judicial Watch says two Ward 6 commissioners have failed to respond to a September FOIA request. Judicial Watch asked for emails and texts on both government or personal accounts of the two, who are elected to ANC 6D in the fast growing Southwest area. The subject was several properties and a planning and zoning case. Longstanding but often ignored policy in the District requires officials using private accounts for government business to keep copies for just such possible requests. The complaint recounts replies from the central ANC office that the commissioners required extra time to search their personal accounts.  Judicial Watch v. D.C., No. 2019-CA-007410 B. The District has not responded and the first court date is February 7, 2020, at 9:30 in Courtroom 518 before Judge Yvonne Williams. The Coalition would be happy to advise on the law; assisting ANCs is one of several priority areas in our work plans.
• WhatsApp improperly used in D.C. government offices – still no answer to the Coalition’s November 6 request to D.C. Mayor Muriel Bowser and other officials to immediately ban use of the popular encrypted messaging app. We stressed the need to assure no official records are being lost. Others’ follow-up make shake loose executive action in D.C. For example, reporters are pursuing FOIA requests for copies of “messages originally sent on WhatsApp,” as a test to see if the materials are being preserved or not. The late House oversight chair, Rep. Elijah Cummings (D-Md.), in March wrote the White House the same question about copies of WhatsApp messages they understood Jared Kushner had exchanged with foreign heads of state. (See request cited in our letter.)