Mayor Gray’s Proposal Would Set Back the Freedom of Information Act by Decades
Carl Messineo, Legal Director of the Partnership for Civil Justice Fund is testifying Wednesday July 11 before the D.C. Council in support of Freedom of Information and in opposition to Mayor Gray’s amendments to restrict the District’s public records law.
“Mayor Gray’s proposal is supremely flawed and would set back the Freedom of Information Act by decades. Public records laws were enacted in the 1970s in the aftermath of Watergate and out of recognition that records disclosures enable the public to inform the direction and policy of the government. Mayor Gray wants to roll back the public records law, expand secrecy, and further cloak government in a veil of secrecy,” said Mr. Messineo.
“On the heels of a Superior Court judge’s recent finding that the MPD and OAG submitted ‘transparently false’ affidavits sworn under penalty of perjury to the Court in a failed attempt to defeat their FOIA obligations, it is appalling that the Mayor and the OAG would make such a bold attempt to undermine the civil rights law that they have so willfully violated,” added Mr. Messineo.
After three years of litigation, the Partnership for Civil Justice Fund recently secured the largest disclosure of Metropolitan Police Department orders and directives in the history of the D.C. FOIA. This required overcoming false affidavits, submitted under oath and penalty of perjury by the Office of the Attorney General and the Metropolitan Police Department.
In that litigation, the top officials in the Metropolitan Police Department and the D.C. Office of the Attorney General submitted false affidavits under oath in a scorched earth effort to shield basic operational documents from public view.
D.C. Superior Court Judge Judith N. Macaluso found the sworn MPD affidavits to be “transparently false.” Judge Macaluso noted that MPD Assistant Chief of Police Patrick Burke’s affidavit ends with “I declare under penalty of perjury that . . . the foregoing is true and correct.” The Judge stated, “Well, the foregoing is not true and correct. The foregoing is completely and obviously false.”
Mr. Messineo, lead counsel on that case, adds “It is shameful that the executive branch would come before the D.C. Council with a proposal to roll back this fundamental public records law. They claim that complying with the FOIA is too burdensome. The OAG and the Mayor should instead be required to testify before the Council to explain how they have wasted enormous taxpayer resources to frustrate and interfere with the operation of this law. The records belong to the people of the District of Columbia and should be made available to them upon request.”
On behalf of the Partnership for Civil Justice Fund, Mr. Messineo is testifying in support of amendments to strengthen the FOIA that have been proposed by Council Member Mary Cheh, The Open Government Act of 2011.
Observing that the District Government is substantially out of compliance with the FOIA amendments enacted in 2001 that require automatic and routine Internet publication of certain public records, the PCJF is submitting a legislative proposal to implement an enforcement mechanism so that members of the public can compel compliance with this critical provision.
- Bill 19-776, Mayor Gray’s proposal, would remove the right of a requester to go to Court upon agency denial and force the requestor to proceed first through an extra Mayoral administrative appeal. The original Committee Report from 1976 is clear: “Probably the most significant departure from the [predecessor] Mayor’s Order with regard to initial requests is that the bill treats a ‘no response’ by the government as a final denial for which a citizen can seek judicial relief or at the citizen’s discretion review by the Mayor.” The 1976 Committee Report refers repeatedly to this as the essential “kind of enforcement mechanism” needed under the D.C. FOIA. Furthermore, this was enacted rejecting the federal FOIA model that requires an administrative appeal to the agency head.
- Bill 19-776 would exempt all names and personally identifying information from disclosure. When the executive produces logs of who has lobbied him or visited his office, the names may be withheld as exempt. When an agency produces internal e-mails reflecting agency policy making, the names of the recipients and author may be withheld as exempt. This is extreme and unprecedented.
- Bill 19-776 would exempt all MPD internal investigations, denying the public information about police misconduct, findings of misconduct and failures to take action when misconduct is evident. An informed public that seeks to be engaged in oversight of law enforcement, which has awesome authority to intervene in lives, has the right to such information.
- Bill 19-776 would authorize denials of public records requests based on the identity of the requestor, based on whether the person has filed a civil rights lawsuit against or is engaged in litigation involving the District, and would deny the requests of public interest legal organizations such as the Partnership for Civil Justice Fund, based on the fact that their attorneys are engaged in litigation involving the District. This is unprecedented, and an unconstitutional violation of the Equal Protection Clause and the First Amendment right to free speech and association.
- Bill 19-776 would radically restrict disclosure and expand the law enforcement exemption and would use, instead, the more generalized approach of the common law law enforcement privilege. The D.C. FOIA follows the approach adopted by the federal FOIA in its original enactment, using a harm-based exemption where investigatory records are exempt only where disclosure risks any one of a list of enumerated public harms (e.g., endangering a person or interest). See D.C. Code § 2-534(a)(3). This is in distinction from an approach that would render exempt law enforcement information or records on a generalized basis. The District’s policy has always been consistent: MEV“[T]he [FOIA] bill seeks to strike a balance for maximum disclosure even of law enforcement information, but not in cases where the information would endanger people, interfere with due process or seriously hamper law enforcement efforts.” 1976 Committee Report at 8. This is noteworthy because Attorney General Nathan has claimed that his proposed revisions more closely track the federal FOIA. His statement is not true.
- Bill 19-776 would legislatively reverse Barry v. Washington Post Co., 529 A.2d 319 (D.C. 1987), which holds that Judges may not judicially create exemptions to disclosure and would authorize judges to find new privileges to prevent disclosure.
- Bill 19-776 would rescind the FOIA’s penalties for arbitrary and capricious violations. This is noteworthy, given the false sworn statements signed by police department officials and endorsed by the Executive Branch in the Partnership for Civil Justice Fund v. District of Columbia litigation.
- Bill 19-776 would eliminate narrowly drawn harm-based exemptions and replace them with broad generalized expansive exemptions from production. This includes in the area of the “law enforcement privilege” and also “trade secrets, and commercial or financial information obtained from outside the government.”