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New Lawsuit Seeks Budget Information D.C. Withholds – Though Required by Law to Be Published

Fritz Mulhauser | July 21, 2020 | Last modified: August 3, 2020

Attorneys for families of very young children in need of special education filed a lawsuit last week (18) in D.C. Superior Court to get documents showing funds for services to help with their disabilities. The records are requests sent to the mayor as part of the annual budget process. D.C. has failed to publish them and also denied direct requests.

A section of the D.C. Freedom of Information Act requires budget requests to be available online. The legislature decided decades ago that these, among other basic agency records (staff, organization and policies, for example), should be posted to avoid the time and possible expense of a traditional FOIA request.

Plaintiffs in the lawsuit are attorneys for families representing all children ages 3-5 with disabilities, who are required by federal law to be served by D.C public schools. The law firm Terris, Pravlik and Millian has battled the District in federal court since 2005 to gain the mandated services that the District had not been providing, winning repeated victories and appeals. That case is D.L. v. D.C., No. 05-1437 (RCL), continues in the U.S. District Court for D.C.

The budget records are needed, says the new lawsuit in D.C. Superior Court, as part of the firm’s continued monitoring of D.C. compliance with a federal injunction issued in the original case. That injunction ordered D.C. schools and the responsible Office of the State Superintendent of Education to ramp up efforts to locate and serve the young children, since early action is best to deal with many disabling conditions. The case remains before the court after 15 years and the lawyers had made efforts to get the budget details as part of ongoing discussions with District officials. Without success they were eager to use the mandatory publication feature of the public records law, but that (and a direct FOIA request) failed as well.

This action is the latest effort in the community to gain D.C. agency compliance with the mandatory publication part of the FOIA law.

  • Our Open Government Coalition’s reviews of agencies’ publication for years showed such consistent disregard of the law, and no one seemed concerned with the findings, so we discontinued the effort.
  • Advocacy entered a dramatic new phase when ANC Commissioner Mark Eckenwiler in 2016 spotlighted the DCRA failure to publish building permits needed for review of zoning cases. The D.C. Council had to put aside millions to upgrade incompetent computer systems. His pressure was supported by a scathing opinion from the Office of Open Government finding the agency “woefully out of compliance” and agency claims unpersuasive and implausible that they were unaware of the law.
  • Another OOG opinion on the subject, following an Open Government Coalition complaint, found the Office of Administrative Hearings also disobeyed the law in failing to post opinions and orders in thousands of cases its administrative law judges decide every year. These are another type of record listed in the mandatory publication section of D.C. FOIA. (OOG reported agency officials’ excuse they also lacked funds.)
  • Another Coalition complaint, that state education officials fail to publish opinions deciding parents’ complaints of problems in special education, is pending with the OOG.

We know of no case in D.C. courts testing whether the public can gain court enforcement of the D.C. FOIA electronic publication law. D.C. officials denied the law firm’s regular FOIA request for the records, saying budget requests were exempt from release since they are confidential internal communications (and the mayor never answered the firm’s appeal). But any claim of exemption appears to be irrelevant or inapplicable because budget records are supposed to be published for everyone.

Federal courts of appeals are divided on enforcement of a mandatory publication part of the federal Freedom of Information law..

The case is Terris, Pravlik and Millian LLP v. D.C., No. 2020 CA 003087 B. It is assigned to Judge Heidi Pasichow. An initial scheduling conference is set for 10:30 on October 23, 2020. (Court is closed now, with some cases heard remotely; arrangements that will be in effect in October are not yet known.)