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

Fritz Mulhauser | July 21, 2020 | Last modified: April 11, 2021

UPDATE 4-9-21: The court has scheduled dueling briefs in the case aimed to yield a decision this summer without a trial. The court in February brushed aside the District’s arguments to dismiss the case, and in a March 16 order set the schedule for exchange of papers from April 16 to June 30. The court has given no hint of a view whether it has the power to order the D.C. government to publish records as the law requires. Some federal courts have read the law narrowly to say in a FOIA lawsuit, the court has only one remedy available, to order records wrongly withheld be handed over to a requester (not that they be published for all). The powers of the court in enforcing mandatory publication under D.C. law have never been reviewed in a D.C. case. That’s what makes this case interesting, since D.C. agencies commonly ignore the pro-active publication requirement in D.C. law. The parties will be back before the court July 23, 2021, at 10:30 in virtual Courtroom 516.

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 (FOIA) requires budget requests to be available online. The D.C. Council decided decades ago that these, among other basic agency records (staff, organization, regulations and policies, and opinions in cases decided in agency hearings) should be public so the public could follow the budget process and avoid the time and possible expense of a traditional FOIA request that can take a few days or many months.

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), which 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 court 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, was also upheld in August 2020. (See blog post here.) The OOG opinion ordered the Office of the State Superintendent of Education to publish years of opinions that should have been, but were not, posted online.

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. 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 their powers to order compliance with a similar 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. The District moved to dismiss the case arguing the publication requirement (proposed by then-Ward 3 Council member Kathy Patterson and enacted in 2004) is outside the powers of D.C. Council. The Council has told the court it plans to submit its own statement (amicus brief) rebutting that argument.