Fenty, Transparency, Scrutiny: The Political Fallout of FOIA Reform
Roy Morris describes his struggles in getting D.C. government agencies to comply with Freedom of Information Act (FOIA) requests as "Kafkaesque."
"They use these exceptions to deny anything," Morris told D.C. Councilmembers at a hearing this week on open government and transparency at the Wilson Building . “I don’t want to pick on the attorney general," Morris added. To which, Ward 3 Councilmember Mary Cheh quickly replied, greeted by laughter in Room 412, "Why not?"
Cheh's proposed Open Government Act of 2010 may cause major headaches not just for D.C. Attorney General Peter Nickles (who cites "insurmountable challenges" in FOIA compliance) but also, as Loose Lips Daily alluded to yesterday morning, Mayor Adrian Fenty. As a mayoral candidate in 2006, Fenty did plenty to profess a new golden age of transparency and openness in how the District conducts its business. Instead, figures from Cheh's office show, the average number of FOIA requests denied by the city has only increased–quadrupling, in fact–during Fenty's tenure.
"Councilmember Cheh has been on a mission to reform government, so you can't assume her sunlight initiative was launched with politics in mind," local political consultant Chuck Thies tells City Desk. "That said, at this point in the campaign, Fenty can't be pleased to see his poor record on open government and transparency scrutinized,” adds Thies, who is supporting (but not working for) Fenty's opponent, Council Chairman Vincent Gray, in the upcoming mayoral race . “His practice as mayor contradicts what he preached on the 2006 campaign trail."
Kristopher Baumann of the Fraternal Order of Police’s police labor committee praised Cheh for her courage to push her legislation in what’s becoming a highly charged campaign season. "This is long overdue," said Baumann, whose union has regularly butted heads with the Metropolitan Police Department over public information access. "I realize you’re going to face pushback from the executive."
On Monday, witness after witness, from Carl Messineo of the Partnership for Civil Justice to Washington Post lawyer James McLaughlin to Jenny Reed of the D.C. Fiscal Policy Institute, pointed to structural and procedural problems with FOIA compliance in the District and offered measured praise for Cheh’s open government reform efforts, which also include new rules for lobbying disclosure and calls for the creation of an Open Government Office to enforce FOIA compliance.
Others had harsh words for Nickles, who in a June 10 memo to Chairman Gray, wrote that "in the context of significant FOIA request volumes, increased complexity of the FOIA requests made, and reduced agency resources, the absence in our FOIA statute of a time-frame 'safety valve' similar to that in the federal FOIA is creating insurmountable challenges for the District. These challenges are felt first at the administrative level but are increasingly resulting in litigation outcomes highly unfavorable to the District, despite the documented best efforts of agency employees and officials to meet their obligations."
Some witnesses testified that the District wouldn’t face so much FOIA litigation in the first place if government agencies were simply more forthcoming with public information, or just comply with the current law. While the number of FOIA requests has remained mainly steady in recent years, the number of outright information request denials has increased during Fenty’s tenure as mayor.
"Some of these cases go back five years. They have been unable–no, unwilling–to comply with FOIA," Baumann said during the hearing.
Nickles, meanwhile, wants councilmembers to amend the FOIA law to extend the amount of time the District must respond to public information requests.
Cheh tells City Desk that the proposed Open Government Act shouldn’t be viewed through a political lens. “Fixing our freedom of information laws shouldn’t be controversial," she says. "We’ve been talking about reforming FOIA for a very long time. This reform is one that everyone should embrace.”
Mayoral communications director Mafara Hobson said Fenty's office is “thoroughly reviewing the legislation.” Spokespersons for the Fenty and Gray campaigns didn’t respond to calls for comment.