Rental Housing Commission Agrees to Comply with D.C. Law on Publication of Opinions — Coalition’s Fourth Successful E-FOIA Enforcement Complaint
Fritz Mulhauser | March 30, 2023
The three-judge commission that decides appeals of D.C. tenants’ complaints against landlords has admitted that for years it has not published its opinions as the law requires, and it also announced a start at catching up.
The admission and correction came as the D.C. Rental Housing Commission (RHC) responded to an investigation by the Office of Open Government (OOG) following a request by the D.C. Open Government Coalition. The OOG has the authority to issue advisory opinions about agencies’ implementation of the District’s Freedom of Information Act (FOIA). D.C. FOIA has included the mandatory online publication requirement since 2001.
Nearly 60 percent of the District’s approximately 280,000 households rented their homes in 2018, according to Brookings Institution researchers. Yet tenants’ rights in D.C. are defined in a maze of hundreds of pages of dense legalese. The Coalition’s December complaint brought to light how, for lack of accessible publication, “decades of decisions on complex D.C. laws and regulations remain secret.”
An OOG opinion issued Monday (27) attached a statement from the commission acknowledging the Coalition’s concerns, and promising improvements. After admitting it had not posted opinions as required, the RHC told the Office of Open Government it has now posted 81 orders and opinions since 2019 in a searchable Google Docs area linked from the RHC site.
Tenant complaints, such as illegal rent increases, building code violations, retaliation, security deposit problems, or interference with tenant organizing, are heard by judges at the Office of Administrative Hearings. The commission hears appeals from those OAH decisions. Its opinions are significant as they explain the law and how it should be applied to covered D.C. rentals.
The Commission only became independent in 2019; it was part of the Department of Housing and Community Development (DHCD) since 2007 and before that within the former Department of Consumer and Regulatory Affairs (DCRA). Because of that history the commission response noted “uncertainty, strictly speaking, [whether] it is legally required to post” earlier opinions in cases decided years ago when the work was done within larger agencies.
Even so, the commission agreed that a single source where the public can find all RHC opinions would be best, “resources permitting,” though without saying when that would happen.
Since the previous agencies did not comply, correcting that gap and publishing decisions before 2019 will take time and effort (and efforts to find scarce funds) by the small commission staff who inherit the problem. Meanwhile, the commission promised to support access to all opinions, adding to the RHC webpage that those seeking a pre-2019 opinion may contact the agency for help, which is at least a stopgap measure while permanent online solutions are crafted.
The commission told OOG of bureaucratic hurdles limiting web posting within the larger agency homes at DHCD and DCRA but also later when the commission website was controlled by the Office of the Chief Technology Officer (OCTO).
OCTO has announced a District-wide revision of agencies’ website design over the next year. The Coalition has asked OOG to consult with OCTO on how the redesign can accommodate the E-FOIA publication requirement that affects all agencies.
The publication requirement was in the D.C. Freedom of Information Act from the outset in the 1970s, a list of items (including opinions in decided cases) copied from federal FOI law and mandated to be made available without request in agency “reading rooms” – literally, shelves or file drawers of material the public could read in person.
As Internet access grew, online publication was added to federal law in 1996 and D.C. followed a few years later. Because “publication” was henceforth to be electronic, the statutory provision became known as “E-FOIA.”
D.C. agencies generally have ignored this legal requirement for publication online of opinions deciding cases and a dozen other kinds of records, as Coalition audits have repeatedly shown. This refusal to allocate staff and resources to transparency goes unremarked, as no executive agency, no unit within the office of the D.C. attorney general, nor any Council committee enforces the open records law. Several major breaches have come to light:
- A complaint by an ANC commissioner led to a 2016 OOG investigation and Council hearing revealing that building permits had gone unpublished for decades, requiring special appropriations of several million dollars to catch up with the digitization of building records as most cities and counties had done years before.
- A Superior Court judge in 2021 heard testimony on decades of refusal and ordered the D.C. mayor to publish budget materials required to be public under the same law. The case sparked open conflict between the mayor and Council with dueling briefs and arguments at a trial and appeal, now pending at the D.C. Court of Appeals. The mayor’s appeal maintains that the budget records are “privileged” as confidential exchanges among her office and agencies, so the D.C. Council lacks the authority to order their publication. The Council disagrees that there are any such limits to their authority and cited other states’ enactment of the same budget transparency laws. (Disclosure: the Open Government Coalition filed an amicus brief in support of the lower court decision upholding transparency.)
Coalition complaints of D.C. agency violations of E-FOIA have also been upheld after investigations and the OOG has recommended that agencies correct their failure to publish various kinds of opinions, for example:
- Office of the State Superintendent of Education (failure to publish opinions deciding parent complaints about schools’ education of children with disabilities),
- Office of Administrative Hearings (failure to publish all types of opinions in appeals of agency mistakes such as Medicaid, unemployment, or SNAP benefits; school suspensions; shelter evictions; and trash tickets); and
- Mayor’s Office of Legal Counsel (failure to publish opinions in appeals of agency denials of public records requests).