New Amicus Brief by Coalition Supports D.C. FOIA Online Publication Requirements in Novel Appeal

Fritz Mulhauser | February 7, 2022 | Last modified: December 24, 2022

UPDATE: The case is under advisement following oral argument in person before a three-judge panel of the D.C. Court of Appeals on September 28, 2022. The solicitor general of the District represented the government, arguing the law ordering the executive to publish budget records exceeded the D.C. Council’s legislative powers. Counsel for the plaintiffs who won in Superior Court said that court’s opinion was solid and should stand. Counsel for the D.C. Council argued that a legislature gets to make rules about what executive records should be public and this requirement was no improper intrusion on executive prerogatives. The court has unusual workloads for judges as several seats have been vacant. According to court data, cases in the most recent full year of 2021 took an average of 274 days from argument to opinion.

The D.C. Open Government Coalition added its voice Friday (4) in favor of court enforcement of a unique part of D.C. FOIA law in a pending appeal in the D.C. Court of Appeals. In a case dealing not just with access to papers and files but electronic publication, a Superior Court judge ordered the D.C. government to post certain records online after many years’ of delay, but the District now argues on appeal that the law is wrong and unenforceable.

The Coalition, joined by five other organizations, filed a brief as amicus curiae, or friend of the court in the case of Terris, Pravlik & Millian v. D.C., No. 21-CV-543. The D.C. Council also filed an amicus brief.

The Coalition supports the plaintiffs in a case they won in Superior Court seeking enforcement of D.C. FOIA language requiring agencies to put a dozen kinds of records online, to be publicly available without request. The law includes budget requests from agencies to the mayor, which are the records the law firm asked for to aid in evaluating D.C. response to a special education funding case they won in federal court. 

The mayor has never honored the law’s mandate, and her lawyers now argue in court that the law invades supreme executive powers and was beyond authority of the Council to pass.

This enhanced transparency detail (to make agency budget requests public) was added to D.C. FOIA two decades ago by then-Council member Kathy Patterson, now D.C. Auditor. It was signed into law by then-Mayor Anthony Williams apparently without hesitation. In a statement to D.C. Line last year when plaintiffs won below, Patterson said “It’s good to see the court supporting the authority of the legislature as well as the public’s right to know.”

The D.C. Council will be filing an amicus brief as well.

This is the first D.C. court case reviewing the requirement. The court may appreciate having in-depth treatment of the issues in multiple briefs. The District appeal raised numerous issues, even a claim of “executive privilege,” a concept unknown in D.C. law, according to the Terris brief. The Supreme Court rejected the idea when President Richard Nixon said the privilege allowed him to keep White House tapes secret during Watergate investigations. It has also been in national headlines recently when raised by former president Donald Trump. 

More background on the unusual case is in a blog post here.

Adina Rosenbaum, an experienced appellate attorney at Public Citizen Litigation Group, is counsel for the Coalition. The brief is here.

The co-signers of the Coalition brief include

• ACLU of DC
• DC Fiscal Policy Institute
• Public Citizen
• Reporters Committee for Freedom of the Press, and
• DC Professional Chapter of the Society of Professional Journalists. 

No date has been set for argument.