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FOIA restrictions would shield D.C. officials who use email for personal business

D.C. Council member Jack Evans (D-Ward 2), now the subject of a federal investigation, used his government email account to send business proposals to law firms.
D.C. Council member Jack Evans (D-Ward 2), now the subject of a federal investigation, used his government email account to send business proposals to law firms. (Bill O'Leary/The Washington Post)

D.C. lawmakers are considering a proposal that could dramatically curtail access to public records, exempting from disclosure correspondence sent with government email in which public employees discuss matters not related to their official duties.

The legislation, proposed by D.C. Council Chairman Phil Mendelson (D), would also allow city agencies to reject records requests that don’t include specific details about the documents being sought — including their subject matter, names of the sender and recipient, and a date range.

Mendelson said he was introducing the changes at the request of the council’s lawyer to reduce the amount of time that city officials are spending responding to requests under the District’s Freedom of Information Act.

“FOIA wasn’t intended for fishing expeditions,” Mendelson said. “Government is having to devote increasing resources to dealing with very broad and unspecific FOIA requests, some of which have no relation to official business. And that was not the intent of FOIA.”

Open-government advocates swiftly condemned the proposed changes, which include new language that would permit disclosure only of “information regarding the affairs of government and the official acts of public officials and employees.”

Tom M. Susman, an attorney and president of the D.C. Open Government Coalition, said that could prevent the public or journalists from uncovering ethics lapses in which government officials mingle public and private business — for instance, by using their government email accounts or staff to advance personal interests.

In March, for example, The Washington Post reported that D.C. Council Member Jack Evans (D-Ward 2) had repeatedly sent business proposals to potential employers in which he offered his connections and influence as the city’s longest-serving lawmaker and chairman of the Washington Metropolitan Area Transit Authority. Evans made those pitches using his government email account, and journalists obtained them through the District’s FOIA law.

Susman said he was also perturbed at how Mendelson had proposed the changes — buried at the bottom of a 160-page committee report tied to the city’s budget and described as “technical and clarifying amendments” to FOIA, instead of as separate legislation that could be subject to a public hearing.

“The process is disturbing. The substance is even worse,” Susman said. “The idea that this is a technical, clarifying amendment is ludicrous.”

Nicole Streeter, the council’s general counsel, did not respond to requests for comment about the proposal, first reported by WAMU-88.5.

Last year, journalist Jeffrey Anderson, also using documents obtained through FOIA, reported that Evans’s son was offered an internship by a digital-sign company that would have benefited from legislation Evans advanced at the council. Evans said his son did not accept the internship.

Evans is currently the subject of an ongoing federal investigation. A grand jury has issued subpoenas seeking information about the council member’s private clients.

Mendelson said the proposed FOIA restrictions were not intended to protect council members such as Evans from scrutiny. He said the general counsel had told him that the records requests that unearthed Evans’s improper conduct would not have been rejected under the new restrictions. The point, he said, was instead to shield details of government officials’ personal lives.

“FOIA should not be to be able to get salacious information about a council member because he or she was foolish enough to put something on their government account,” he said. “That’s not what FOIA is about. FOIA is for you to understand the workings of government.”

Craig Holman of Public Citizen, a nonpartisan group that advocates ethical government, pointed to what he said was a simpler solution.

“It isn’t that much to ask of government officials: If they want privacy, use private resources,” Holman said. The proposed FOIA revisions, he added, “would cover up all kinds of mischief that could be done by public officials using public resources.”

The District’s current open-records law already contains an exemption for “information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy.” Mendelson did not immediately respond to follow-up questions Wednesday about why that provision was insufficient.

In fiscal year 2018, the D.C. government received 10,450 public-records requests, spending about $3.1 million in staff time and other costs to respond, according to an annual FOIA report. The previous year there were 8,274 requests, costing the city about $2.7 million.

In 2016, the D.C. Court of Appeals ruled against the District in a lawsuit brought by the Fraternal Order of Police, saying city officials had to respond to a FOIA request by the group even though it was likely to produce tens of thousands of pages of records.

The committee report on the proposed changes to FOIA law cites that decision, saying it had “rendered District agencies powerless to negotiate narrowing the scope of requests or to require specificity in describing requested documents, thereby resulting in the inefficient use of resources.”

Arthur Spitzer, legal co-director of the D.C. chapter of the American Civil Liberties Union, said the bill’s requirement that requesters more specifically describe documents runs counter to decades of legislation and case law on the federal Freedom of Information Act, which serves as the model for the District’s.

In 1974, for instance, Congress amended the federal FOIA law so that a request must “reasonably describe” the records being sought, but the request does not have to provide any particular set of details. Courts have also held that an agency cannot deny a request simply because it is broad or requires a large amount of work to fulfill.

“How can a FOIA requester know with particularity what a document looks like when he hasn’t seen the document? That’s why he has to do a FOIA,” Spitzer said. The new level of detail required under the proposed D.C. FOIA amendment, he said, “just seems to me designed to allow an agency to be able to say, ‘Oh well, you didn’t describe with particularity, so that means we don’t have to give you anything.’ ”

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