Flawed Cost Estimates Derailed Expanded Access to Police Records: Coalition Urges Council to Get Better and More Transparent Information

Fritz Mulhauser | March 3, 2024

“Prediction,” goes an old Danish proverb, “is hazardous, especially about the future.” For the D.C. Council cost estimates of new laws, recent evidence shows it’s exceptionally so.

The Open Government Coalition reported new findings to the Council in February hearings that seriously question the Chief Financial Officer’s (CFO) multi-million dollar cost estimate for a half-dozen added processing staff and an attorney needed to handle expanded access to police records.

That eye-popping figure has so far stopped greater availability of D.C. police discipline files passed in 2022 subject to appropriation. The mayor refused to put it in her budget last year, and the Council couldn’t find so much extra money in a tight budget year.

The Coalition, which for years has advocated for D.C. to follow California, New York, Maryland, and other states to increase public trust in police by allowing access to discipline files, found through Freedom of Information Act (FOIA) requests that the only research by the CFO to make its estimate was to email the Metropolitan Police Department (MPD). If they did more research, the CFO staff didn’t keep the workpapers.

Questioning what basis there was for the estimate is impossible: the CFO redacted the whole text of the short email from MPD. You can see it here.

MPD is the same agency that has, with the police union, strenuously fought all steps to increase public knowledge of what police complaints director Michael Tobin has called the “opaque” discipline in MPD. The agency was already famously inefficient in processing records requests, and under fire in appeals and litigation for years for delays and incorrect denials including redacting too much. The department sticks to a mistaken view of the law, despite rejection by the courts and the Office of Open Government.

More excessive and incorrect work, done at the agency’s present snail’s pace, could be expected to cost a lot. But isn’t that at least some background that a credible and independent cost analysis would include? Yet it wasn’t mentioned in the CFO fiscal impact letter to the Council.

How good is a forecast that doesn’t show the assumptions in the model?

The Open Government Coalition, in its testimony to two D.C. Council oversight hearings this month, told the story of its research showing the CFO’s written submission concealed its narrow basis and how the redacted email prevented any analysis by the Council and the public of the sole source of facts, apparently, for the multi-million dollar estimate.

A secret agency email from MPD thus appears to have been enough to derail legislation to expand FOIA access to police records, even though the bill was:

• recommended by the Police Reform Commission,
• included in a bill authored by the Council chairman, Phil Mendelson,
• passed unanimously as part of the police reform bill in fall 2022, and
• credited by the D.C. Superior Court in a recent opinion as a valuable expression of the public interest.

D.C. legislation passed unanimously in the 2022 police reform act showed “support for continuously greater transparency in police records specifically in D.C., as well as a strong nationwide desire for police accountability in the wake of the death of George Floyd.” This “must be taken to account in the [FOIA] balancing test analysis and weigh in favor of the public interest.”

WP Co. v. DC, Order and Opinion (Sept. 14, 2023). D.C. Superior Court, Case No. 2023-CAB-000951.

The Coalition testimony explained the limited credibility of any analysis based only on executive agency opinion. The sole email seems too short to contain any data such as predicted volume of the new and unfamiliar work or productivity of current staff—probably since there are none. The Coalition has learned over the years that few, if any, D.C. agencies have efficiency data about FOIA work.

So, the email could have been just one more way the agency, under pressure from the police employees’ union, continued its opposition to improvements in transparency and accountability by back-of-the-envelope budget-busting guesses.

The Coalition’s written statement included two further analyses:

• The FOIA expansion cost estimate didn’t follow strict in-house rules in the CFO policy manual that call for broad, deep research and for four pre-release review levels. See the relevant internal control manual chapter also obtained via FOIA, attached to testimony.
• The extent of incorrect estimates for other D.C. Council bills is unknown, but the Coalition reported a second case study suggesting the importance of finding out. In that example, a proposed expansion of fire and emergency medical employees’ health benefits received a poorly researched $80 million estimate that delayed the legislation for years. After repeated requests, a second look cut it to $30 million but proved incorrect again. Millions more than needed had to be appropriated to meet the inaccurate estimates and get the protections on the books for work-related serious illnesses.  

The video of the Coalition’s appearance at a hearing before the Business and Economic Development Committee is here (time stamp 1:28:19). The CFO and staff did not address the Coalition’s testimony at their separate hearing on a later day except to offer generalities that the staff works hard to be accurate in their predictions. The video of Coalition testimony again on the CFO to the Committee of the Whole is here (time stamp 36:20; note extended Q&A with the Chairman at 57:18).

Time for A Change?

The law for decades has required fiscal impact statements to accompany bills, D.C. Code § 1-301.47a, and they are included in the work of the new CFO created in the financially troubled 1990s, § 1-204.24d (25). Good forecasts of course can help the Council live within a balanced budget. States, unlike Congress, can’t print money and must spend only what is available in real income.

However, it appears that no law makes the CFO the exclusive source of such estimates. Especially given the quality problems in some CFO work products and their profound impact, why can’t individual bills be screened for costs in other ways? The overall budget would still have CFO review (to certify that the Council’s total budget is balanced).

Cost analysis is prudent, but the D.C. process should be improved to bolster credibility of results in the short term and reexamined in the longer term. Coalition interviews with Council members and staff (who asked for anonymity because the subject of quality of work by the powerful 1000-person Office of the CFO is highly sensitive) showed broad support for fresh approaches. Other states find a range of tools helpful in meeting budget balance mandates that all share.  Congress lives under very different rules but shows the need for innovation and dialogue in the simple fact that estimation methods to help their committees have faced robust debate for years.

The Coalition testimony proposed the Council should improve this process by:

• Adding rules that committees must reject estimates lacking the required explanation of their “basis” or delivered too late for serious review (the 2022 FOIA expansion estimate arrived the day of final committee action, the markup).
• Directing the D.C. Auditor or Council budget office to evaluate the quality of a larger sample of the 100 or more CFO estimates in a year, to compare predicted and actual costs, and to pinpoint sources of error to be addressed in new policy.   
• Considering a new process to assist in balancing budgets, such as cost estimates from the Council budget office or other sources.

In the Coalition’s view, the Council would be well within its rights to end reliance on CFO fiscal impact statements—pending serious improvements or permanently. The committees could approve fiscal impact statements for regular legislation from the Council budget office, just as they now do for emergency bills. Each bill can state in the next to last section that it has an accompanying statement, as now, just from new sources. (Others with expertise to offer could be certified by the Council budget office if needed.) Earlier, the Council budget director regularly drafted fiscal impact statements for permanent legislation, as that office continues to do for emergency bills.

A committee reporting a bill with an estimate from some other source could face a ruling by the Chairman at the Committee of the Whole stage that the legislation is out of order for lack of a CFO estimate. But by simple majority, the Council could decide the bill has a satisfactory estimate of its budget impact.

Support for improvement is building:

• Council Chairman Phil Mendelson responded from the dais, “I agree with you that sometimes these fiscal impact estimates reflect too much a bias from the executive agency that doesn’t support legislation.”  (See COW hearing video at time stamp 1:03:12.)
• The D.C. Auditor noted in a post on her “Auditude” blog that the Coalition’s findings on fiscal impact statements’ weakness “eviscerated another part of the OCFO [budget and spending] oversight framework.”  The Auditor fears “these fractures in the framework may signal other dangers ahead.”

The hearings described were among the last in the seven-week series of 54 agency performance oversight hearings by 10 Council committees and Committee of the Whole that ended March 1. The Coalition testified at four others (recap coming in a blog post soon). The CFO also assists budget-making by forecasting revenue; fears of a drastic revenue shortfall for this and the coming year eased with upward estimates in the latest recap. The mayor is scheduled to submit her Fiscal Year 2025 budget on March 20, followed by another round of committee hearings from March 25 to April 10 and final votes in May. The Council budget office has useful web pages with schedules and budget details.