Government transparency advocates oppose D.C. open records law restrictions at city council hearing

Government transparency advocates and the District of Columbia attorney general testified today at a district council hearing regarding three bills that propose various amendments to the district’s open records law.

The most contested proposal, introduced on behalf of D.C. Mayor Vincent C. Gray by former council chairman Kwame R. Brown, who recently resigned and pleaded guilty to felony bank fraud charges, called for reforms that would limit the public’s access to certain documents while extending the government’s time to respond to record requests.

“The culture of D.C. government needs to change,” said Robert. S. Becker, a lawyer who spoke on behalf of the D.C. Chapter of the Society of Professional Journalists. “If enacted, [this bill] would erect very significant roadblocks to government transparency.”

Under D.C.'s freedom of information act, enacted in 1977, government agencies have 15 days to respond to records requests. Gray’s bill proposes extending that period to 20 days.

“[B]alance reflected in the original District statute has been undone by two factors: technological advances and a failure in the law to provide for flexibility as the federal [FOIA] statute does,” stated Attorney General Irvin B. Nathan in his written testimony defending the proposal.

In written testimony, Becker noted D.C. agencies’ average response time to records requests last year was 12.6 days. “There is no evidence supporting the administration’s claim that they need more time,” he added.

Gray’s bill would also allow the city’s Superior Court – rather than the recently formed, independent Open Government Office – to retain exclusive jurisdiction over district FOIA requests and disputes, and to broaden exemptions from disclosure documents related to ongoing law enforcement investigations. It would also do away with criminal penalties in favor of disciplinary actions for agency employees who willingly and unlawfully withhold documents.

“Members of this Council and District residents should ask themselves how they would react if the Government could subpoena all of their records, no matter how voluminous, without giving a reason, demand that they be produced in a matter of days, and have the courts powerless to get any explanation for the demand, place any substantive limits on it, or even extend the time for response,” wrote Nathan in his testimony. “That, in effect, is what the current D.C. FOIA allows any requester to do to any D.C. agency.”

Kristopher Baumann, chairman of the local police union, said that the city’s transparency problems do not stem from its FOIA laws, but rather from government officials’ abuse of them. “I think we’re here because of the bad behavior of the D.C. government,” he testified.

Another bill, introduced by Councilmember Yvette Alexander, proposes a broad exemption for documents relating to “critical infrastructure.”

In written testimony, Carl Messenio, legal director of the Partnership for Civil Justice Fund, opposed the amendment, stating, “Here, too, the abuses of the executive authority in exercising its authority under the FOIA cannot be overlooked.”

Councilmember Mary M. Cheh proposed the third bill, which would increase the authority of the city’s Open Government Office. The media and transparency advocates who testified today expressed support for the proposal.

Councilmember Muriel Bowser, chair of the council’s Committee on Government Operations, said she wants to consider enacting “proactive disclosures,” which would make non-sensitive records available online, without need for a request.

Messenio and Thomas Susman, president of the D.C. Open Government Coalition, said that in an audit of agency websites, they found that many documents that are supposed to be posted online in accordance with city law were missing. They said they supported Bowser’s intent, but added that they think the city council needs to be able to enforce its pre-existing open records law.

Presiding over today’s hearing, Bowser said, “I’d like to let the sun shine in on everything that we do but sometimes the government has to protect itself.” She added the council will continue to explore possible amendments to the city’s open records law throughout the summer.