FOIA Lawsuit Seeks Jack Evans Office Calendars – Council Argues Off-Limits by Grand Jury Secrecy Rules Now That Prosecutors Are Looking at the Case

Fritz Mulhauser | October 17, 2019 | Last modified: July 24, 2021

The Washington Post has asked D.C. Superior Court to compel the Council to turn over records showing appointments of Councilmember Evans in 2015 and 2016.

Post reporter Steve Thompson has led the way in using records obtained under the D.C. Freedom of Information act (FOIA) to show Evans’s business activities. The facts disclosed raised ethics questions and led to Council disciplinary action.

One of Thompson’s requests asked for all calendars, appointment books, schedulers and other records used by Evans to manage his time and appointments in 2015 and 2016. He narrowed the request to include only a few firms and individuals of interest and the Council released some records. But in April the Council ended discussions.

General counsel Nicole Streeter explained they had received from the United States Attorney for the District of Columbia a grand jury subpoena for many records including some sought by the Post. The materials, she argued, were now exempt from release as investigatory records compiled for law enforcement purposes (an exemption in D.C. FOIA) and also under grand jury rules requiring secrecy. They were exempt law enforcement investigatory records in a second sense, she added, as the Council was opening its own investigation of Mr. Evans.

The Post explained how both interpretations were incorrect readings of the law, since the records were standard office materials from years ago, thus neither compiled for law enforcement nor covered by protections designed to keep grand jury testimony under wraps.

But the impasse continued after exchanges of dueling law-thick letters in July and August, so now the court will sort out who has the better argument.

The Council extended the D.C. FOIA to cover itself in 2000 (as many other state legislatures have also done). The annual request volume has grown slowly, still far lower than major executive branch D.C. agencies but rising from about 40 in 2016 and 2017 to 72 in 2018.

But the growing interest seems to have generated a backlash in the Council. Their lawyers have been rejecting more requests (the percentage granted in whole or part in the last two years dropped from 79 to 63 percent) and unsuccessfully experimenting with new denial strategies:  

• declining in 2012 to search for records of official business on Council members’ private email accounts (which drew a lawsuit from the Coalition that was settled after the Council promised to cease the denials and try to search such accounts in future);
• declining to search for some member records on a theory they were protected by a segment of D.C. Code allowing members to be free of questioning about anything said in “speech and debate” (which also drew a citizen lawsuit in which the Coalition played a supporting role that resulted in the Court of Appeals telling the Council in 2016 their claimed exemption was just wrong);
• slipping amendments quietly into the FOI law in unpublicized budget legislation in May 2019 to narrow the breadth of records available and tighten request details (later withdrawn after public concern that the sweeping ideas that would change the law government-wide had not been aired in hearings and could have deeply troubling effects).

Commenting on the proposals offered earlier this year, Council Chairman Phil Mendelson at the time stressed burden, saying according to press reports, “The number of requests that the Council has received, and I think we’re seeing this in other agencies, has increased exponentially over the last year and the amount of money the Council is spending to process FOIA requests—and the government as well—has increased substantially.”

Mendelson raised the same concern repeatedly in hearings later this spring and fall on proposals to extend FOIA to charter schools, mentioning details of a request sent the Council from a national website that assists requesters called Muckrock that involved many pages and no purpose he could grasp.  

The new case is WP Co. v. Council of the District of Columbia, No. 2019 CA 006364 B. It has not been heard yet. The first court date is January 3, 2020, at 9:30 in D.C. Superior Court Courtroom 518 before Associate Judge Yvonne Williams. The complaint is available on the Superior Court case docket website. Its exhibits include the correspondence between lawyers for the paper and the Council.