Transparency Watch: D.C. Issues in Review, Old Year and New

Fritz Mulhauser | January 9, 2021 | Last modified: January 11, 2021

We put aside year-end reflections on D.C. affairs as two events consumed the city this week—initially, Wednesday’s (6) news about the election in Georgia that changed the balance of power in the U.S. Senate and, not least, that could increase the possibility of D.C. voting rights. Then that night, unthinkable incitement by the President resulted in a riotous mob storming the Capitol to disrupt the final step of certifying the national election results.

But open government issues are everywhere. The huge Capitol Hill Police department with a budget over $500 million and 2,000 sworn officers has been so secretive for so long about its work that Congress ordered a half dozen transparency improvements in the latest spending bill just signed. Daniel Schuman in the First Branch Forecast blog from Demand Progress summarizes findings from two years of reviewing the agency here.

Transparency and accountability will come. The Washington Post editorial board called Friday night (8) for “robust investigation,” joining Members and the public demanding to learn how plans for handling a long-predicted crowd came up so short. Chief Steven Sund, along with both chambers’ sergeants at arms, two of three members of the nonpublic Capitol Police Board he reported to, are gone already.

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To all supporters of the D.C. Open Government Coalition and readers of this blog, thanks for your support over the past ten difficult months. Traditional meanings of open government adapted in 2020 as never before as so much of life became virtual—at work and school, shopping, exercise, in court, even dating.

To do the work that all of you do, we know you share our concern to maintain key tools of transparency — public access to meetings, records and data – that are all more vital than ever during times of enormous stress on government at all levels. Full understanding of what government is up to is part of building shared facts for discussion and decision.

The District government legislative branch new year began with Council members sworn in last weekend (2) and a new committee structure adopted Monday (4) to fit new members into the work. (Jonetta Rose Barras offered a detailed rundown — and evaluation — in her latest column.)

The ten committees and the executive branch shortly will start the annual oversight review, which means weighing effects of the virus across all D.C. agencies, looking ahead to assess the financial outlook affecting the 2021-22 budget to be voted at midyear, and considering ways to cushion the massively unequal impacts of the pandemic on those most vulnerable.

The 2020 Open Government Headlines

Looking back, here are some notable open government stories of 2020. “Go deeper” links connect to earlier Coalition blog posts on each (and one to a news story on records the Coalition obtained):

• Council mandated some release of police body-worn camera video. Rising concern with policing here and everywhere in months after the death of George Floyd in Minneapolis in May led the Council to pass initial reform legislation last summer. One part directed the mayor to promptly release body camera video and identification of the officers involved in cases where police use deadly force. The mayor had for years declined to use her authority to release names and video and the police department also avoided public FOIA requests because “investigation is ongoing.” Newly mandated releases came in July and September. Go deeper.
• Charter schools’ board meetings must now follow open meetings law. The 60+ charter school operators each have boards that can no longer meet in secret. The D.C. Council acted in response to several years of mounting concern among parents and teachers that big decisions like school closure were made behind closed doors. The new public demands overcame charter lobbyists’ longstanding opposition. Go deeper.
• Almost a year of prompt public records access is lost, restored only after ten months. The Council last March suspended deadlines for processing of FOIA requests and appeals of denials, to clear the decks for staff to be assigned emergency duties. The piles of unprocessed requests grew beyond 3,000, prompting public outcry and finally Council reinstatement of the 15-day response deadline for new requests starting January 15. The thousands of backlogged requests must get an answer by March 24.  Go deeper.
• D.C. Public Schools finally named the school locations of sexual misconduct incidents. Officials identified four schools after losing a long legal battle (waged by the Coalition) where they offered incorrect legal theories of privacy. But transparency about student safety from adult predators, a wide parental concern following a June 2019  incident, may be no better in future. Washington City Paper reporter Rachel Cohen followed up and could not confirm whether teachers and parents had ever been told at three of the four schools and DCPS officials wouldn’t say whether they’d be any more forthcoming in future. Go deeper.
• D.C. scofflaw agencies that don’t proactively publish required information face the music in court. Online publication of 10 government basics (each D.C. agency staff; policies, decisions and rules; budget requests; and more) has been required for decades but commonly ignored. This year the Office of Open Government called out two—the  Office of Administrative Hearings has failed for two decades to publish thousands of opinions and the Office of the State Superintendent of Education defaulted on publishing years of decisions on parents’ complaints about special education problems. But this may change. Lawyers for parents of children with disabilities seeking funding details on services the children won in a decision years ago asked the court to order publication when D.C. refused to publish them. D.C. asked the case be dismissed arguing the publication law goes beyond what the Home Rule Act (the D.C. “constitution”) allows the legislature to ask of the mayor. In an unusual move, the Council weighed in with its own court brief explaining their authority. This sounds wonky, but a key principle of open government is at stake—the power of the legislature to tell the executive what to make public. Go deeper.

Looking Ahead: D.C. Open Government Issues of 2021

We’re ready to get back to work advocating for open government and keeping you informed about this new world in the new year.

Join us online for the always informative Sunshine Week forum of elected officials and experts  we produce each year to celebrate James Madison’s birthday in March.

The Coalition played a role in many of the five developments above and we will stay involved to  follow up in the new year. Plus, our crystal ball shows a number of other issues we’ll be watching:

• Will COVID-19 data improve? Until wide vaccine protection begins, reopenings will remain uncertain and therefore contentious. Some D.C. parents have been dissatisfied with data on infections in the partially open schools as well as charters, private schools and daycares. (A November school opening was cancelled when official reassurances of safety gained little trust from teachers and parents.) Internal D.C. government emails reported in June suggested some data manipulation in connection with commercial reopenings then. Agreed-on data is the start of deciding how to act where there is risk. Will data improve this year, and will it be published? Few other transparency issues could be more important. The Coalition has a special effort tracking the school data piece. Go deeper.
• Is this the year for key improvements in police transparency?  Trust and accountability are in focus in the new year as a Police Reform Commission works towards an April deadline for recommendations and D.C. Council must act on permanent police reform legislation. Our eye is on two aspects, clearer, faster and cheaper video releases and better access to misconduct investigations.
  • First, MPD redaction policy has been excessive since 2015, calling for privacy-protective blurring of officers, badges, bystanders, passing cars, and other miscellaneous details in any released video from body-worn cameras—done for years for the agency by expensive high-tech contractors, though video redaction has advanced greatly in the same period. The Office of Open Government found the “privacy” rationale incorrect and called for new policies and technology so release can serve public interest in accountability with clearer, faster and cheaper video. Will the new police chief, Robert Contee, order such steps or will the Council need to put better policy into law? Go deeper.
  • Second, more sunshine is needed to assure police indeed police themselves. Details are scarce about investigation facts and penalties when officers fail to follow policy and regulations, which corrodes public trust. D.C. policy keeps copies of complaints unavailable, and the Office of Police Complaints here has called for more visibility to the “opaque” way MPD disciplines officers (usually without serious sanctions) after OPC investigation. Decades of union-demanded secrecy have ended in key states like California and New York; will D.C. be next?  Go deeper.

• Court records tell important stories, but will responsible users have access? Misuse of online court record databases is widely known—particularly where unjust consequences can flow from inaccurate or irrelevant facts from criminal cases and landlords’ suits against tenants. Bills to seal D.C. criminal files have been pending since 2017 with renewed calls for passage at the end of the year by a deputy mayor. The pandemic-fueled eviction crisis brought landlord-tenant court record sealing before a Council hearing late in 2020. Irresponsible data-miners and thoughtless data-users cry out for regulation; meanwhile, researchers and journalists who use bulk access to anonymous court records to benefit the public, not hurt it, shouldn’t be shut out from properly vetted access. Many problems of injustice and of the housing crisis wouldn’t be understood so well if access were drastically ended as bills call for; the very researchers called to provide valuable data to the Council have said so. The D.C Council should add research and journalism access protection if they move bills this year to seal court records. Go deeper here and here.
• Will charter school records be available this year under D.C. FOIA? Last year saw successful advocacy for open charter boards’ meetings but charter school records, required by state law to be open most everywhere else in the nation, remain unavailable. With new members of the D.C. Council (all members of course of the Committee of the Whole where education is assigned), changes at old-line charter support groups and new Public Charter School Board executive leadership may all combine to make this the time to add FOIA access to the responsibilities of the charters. Go deeper.

That’s our recap of 2020 and the new year in D.C. open government matters. We look forward to working with you in the coming months. If you have suggestions of issues deserving attention in D.C. Open Government Coalition analysis and advocacy in the coming year, write us at info@dcogc.org.