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Open Government in A Time of Pandemic: FOIA and Some Public Access to Trials May Be Early Casualties

Fritz Mulhauser | March 15, 2020

Here’s what we know about modifications, actual and proposed, in open government as of Saturday evening, March 14 [plus some updates Monday at 8:00 p.m., when the number of reported D.C. virus cases reached 17], in the D.C. executive branch, D.C. Council and the local and federal courts. The dramatic ones — possible suspension of the 15-day deadline for D.C. government FOIA responses, and limits on access to the local U.S. courthouse and federal criminal trials — are not yet certain.

Tuesday, March 17, 9:00 a.m. The federal court trial access issue is moot, as they say. The court’s chief judge late Monday postponed all trials set to start from now through May 11. All other proceedings are also postponed. The order is here.

Open meetings

D.C. Mayor Muriel Bowser’s Wednesday (11) declarations of public emergency and public health emergency gave sweeping powers to officials and agencies to respond as necessary and to issue further orders. Neither dealt with open government issues. The government is open, but the Mayor in a Friday order put D.C. government on an “agency-specific telework schedule,” meaning “some government operations will be performed fully remotely, while other services will continue to be performed at public buildings, but under modified operations.” This lasts until April 1.

The D.C. Department of Health separately issued an emergency rule banning indoor public and private gatherings, and outdoor gatherings within an enclosed space, of two hundred and fifty or more persons anywhere in the District, some of which might otherwise be public. (Emergency rules last 120 days unless rescinded.) The Mayor reduced the allowable size of mass gatherings to 50 in a Monday order.

Some states’ laws already spell out details of how governments at all levels must maintain transparency as far as possible in emergencies (see Ohio Attorney General letter last week to local governments), even with changes such as relaxed quorum requirements for official meetings when an emergency is formally declared.  D.C. law about meetings has few such detailed special emergency provisions.

To fill the gaps, emergency legislation will be considered by the D.C. Council Tuesday (details below). The latest draft includes a provision added Sunday that changes the definition of an open meeting significantly.

The Open Meetings Act now requires that a covered meeting must be “open to the public” and defines that as access in real time, as the meeting happens. Any one of three ways will do–a person may attend, the media may attend, or the meeting is televised.

For the period of declared emergency, the bill allows but no longer requires real-time access. A meeting may now be considered open to the public if you can find out about it later.

That is, a meeting is open if a public body “takes steps reasonably calculated to allow the public to view or hear the meeting, either while the meeting is taking place or as soon as reasonably practicable thereafter.” (Emphasis added.)

The bill proposes relaxed notice requirements also, dropping the current requirement of two posts of a meeting notice and agenda at both the public body office or meeting location and online. The draft bill allows online posting alone to suffice. The OMA already allows public bodies to meet electronically. And also to hold emergency meetings to discuss urgent matters. Meetings responding to the Coronavirus would probably qualify as “urgent matters.”

And the bill suspends requirements about the frequency of meetings of Advisory Neighborhood Commissions and allows them to be held electronically. Public access at such meetings is unclear, as ANCs are not covered by the Open Meetings Act and the (new) definitions described above.

ANC executive director Gottlieb Simon told commissioners in a recent e-mail statement that in case of meetings “live streaming or teleconferencing” may meet requirements in the Home Rule Act for official ANC action to be taken only at meetings “open to the public.” That will require working out details of public notice of even simple conference calling setups (numbers, ID codes, etc.). Some ANCs post recordings afterwards, but streaming has been unusual in recent years as ANCs vary greatly in technical capability. The Coalition has had a priority in the last year to assist ANCs to gain information they need and increase openness of their own work for the public. Discussions have been fruitful but we have made little concrete progress.

D.C. Council

The Council has its own open meetings rules, and one big change is coming. On Sunday, Chairman Phil Mendelson published a second draft of emergency legislation to be considered next Tuesday (17) that will, among other urgent steps to cushion the financial impact of virus-related problems, for the first time authorize remote Council voting during the public health emergency. 

Washington City Paper “Loose Lips” columnist Mitch Ryals wrote last week that the draft bill does “a lot of good things, such as providing unemployment benefits for some who can’t work due to the virus and grant support for small businesses feeling a pinch, as well as one disappointing thing: The bill allows the Council to meet and vote virtually . . . [a] particular provision, though likely wise in these germy times, [that] will rob the public of an opportunity to tell their elected officials what they really think of the jobs they’re doing. And it will rob LL of the satisfaction of watching those officials argue, debate, and bicker.”

No changes have been published limiting access to the Wilson Building that houses offices of the mayor and Council, staff, and hearing rooms. Some members’ offices are closed to the public and many hearings will be cancelled. The District 2021 budget process, usually in high gear in March and April, will be delayed if the draft bill is approved. It authorizes the mayor’s 2021 budget proposal to be delivered no later than May 6 if the emergency continues (instead of March 19 under current law) “to provide ample flexibility to allow the Executive to respond to the immediate public health emergency” — and of course to allow revised revenue and spending figures if the pandemic continues.

Freedom of Information Act

This is another stunning proposal. The Chairman’s draft bill also allows any D.C. agency to delay answering FOIA requests as long as there is a “COVID closure.” That’s defined as whenever a mayoral emergency declaration is in effect or an agency or board or other public body is officially closed due to the virus.

Requesters may not notice if their request takes a while longer. The current 15-day response deadline is not enforced. As a result, 2,893 or 27 percent of all 10,806 requests processed in 2019, took more than that, according to the mayor’s annual FOIA report.

But is this the time to hang the “Closed Until Further Notice” sign on the door for filing public information requests? Every observer highlights the importance in health and safety emergencies of timely and honest public information. Aggressive news gatherers are a vital part of that, especially where nervous public officials have huge incentives to control the data. To be sure, with staff teleworking away from knowledgeable officials and with some records unavailable electronically, searching and reviewing records may be slowed.

Let’s hope the Council looks carefully at this proposed emergency blanket exemption. Members should seek assurance especially that, as long as agencies are open, the exemption won’t frustrate public and press information requests about the very emergency itself. How about an exception to the response moratorium for “virus-related requests”?

Courts in the District

According to an advisory posted Friday (13), D.C. Court of Appeals planned to maintain scheduled oral arguments. But in an order Monday, the court cancelled arguments for the rest of March. Its cases do not involve juries and are heard by panels of judges in uncrowded courtrooms.

In contrast, the local trial court, D.C. Superior Court, where 10,000 people enter the buildings every day, has a definite crowd problem. The court issued detailed plans Monday designed “to avoid non-essential public interactions,” by suspending all but a few kinds of activity until May 1 at least. Only criminal jury trials in progress will continue; all other trials and many other matters are put off. Information services provided in the courthouses by the D.C. Bar Pro Bono Center and local nonprofits are shuttering.

The administrative court within the executive branch, Office of Administrative Hearings, announced Sunday its staff will work completely remotely and many fewer cases can be heard by telephone. All hearings are cancelled March 16-18 and when hearings resume only those for public benefits and unemployment insurance will be heard by telephone.

The federal courts in D.C. have taken unusual steps also. Paul Duggan and Spencer Hsu reported Friday night in The Washington Post that a federal judge postponed an April 6 trial for two months after many calls from those summoned, especially older jurors reluctant to serve in cramped jury rooms and packed jury boxes during the pandemic. This could skew the pool or cause no-shows after juries are seated.

Most concerning, the D.C. federal courthouse announced that beginning Friday (13) the building is open only to “judges, court staff, members of the media, and visitors with official business with the courts” (i.e., lawyers, self-represented parties with case numbers, and those with specific needs to reach court offices such as the clerk or probation). The announcement warned that “members of the media must show their credentials.” Would that rule, applied by famously strict U.S. Marshals without further definition, likely exclude most free-lancers or bloggers? 

A criminal defendant has a right to a public trial (part of the Sixth Amendment in the Bill of Rights). But do D.C. defendants care? If the general public, lacking “official business,” is to be excluded, the court may have to ask the defendant to choose — whether to waive that right or take a mistrial and await a new date later after the emergency. If defendant waives (raising no objection to a nonpublic trial) would an excluded member of the public still have a separate claim for access, satisfied perhaps by a transcript?

Crowds are the problem in this emergency. Why not just allow into courtrooms a small number of the public, with priority for defendant’s family and friends. [Note: this text is out of date. All trials are suspended effective Tuesday, March 17.]