Mendelson faces calls from four council members for public hearing prior to FOIA changes proposed in budget act

Near the end of a daylong work session Wednesday, DC Council Chairman Phil Mendelson faced a spirited challenge from four council members who urged him not to pursue new exemptions to the District’s Freedom of Information Act next week via a provision in the 2020 budget law.

“Of all issues, the public deserves the right to weigh in on a FOIA change,” said at-large member David Grosso.

Legislators addressed the topic within their discussion of the city’s draft 2020 budget, which is coming up for its first votes Tuesday. Mendelson’s current proposal calls for a few substantive changes for FOIA — without a public hearing — as an amendment to the Budget Support Act. This week’s work session, stretching past 8 p.m., ended without Mendelson indicating what will happen next.

Asked about the issue Friday on WAMU’s Politics Hour, Mendelson defended the changes, which he described as minor in scope and appropriate to avoid government resources paying for “fishing expeditions” such as a request for all communications since 2004 between his office and a prominent lobbyist. He did not respond on whether he’d be pulling the proposal to hold a public hearing first, although WAMU’s Martin Austermuhle reported that Mendelson told him afterward that the provision will remain in the budget bill.

In the WAMU interview and at Wednesday’s work session, Mendelson said he proposed the changes on behalf of the council’s general counsel in response to a recent overwhelming uptick in FOIA document requests.

One change would require FOIA submissions to provide specific details about the sought documents, permitting rejection of filings deemed overly broad. Another modification would have FOIA requirements apply only to documents related to government business, with the intent of creating an exemption for purely personal information. On that aspect, Mendelson pointed to a recent request seeking “all records” from the past 15 years related to a single person, and he posed a hypothetical — a teenage daughter who mistakenly emails her parent’s government email account threatening to run away.

“There is a concern about the volume of FOIA requests that have come in,” Mendelson said, later emphasizing that the problem he’s looking to address is not so much the number of requests but the burden they place on government offices. “There is an increasing burden on our general counsel.”

The discussion came hours after The Washington Post published a story online about the proposed FOIA amendment. WAMU had been the first to report on the changes — and objections from open-government advocates — in an article Monday.

The focus on FOIA laws also comes amid the ethics controversy swirling around Ward 2 Council member Jack Evans. The veteran lawmaker is the target of a federal investigation, several months of extensive media coverage and a recent reprimand from his colleagues. Critics of the new amendment say the personal-business exemption would have applied to emails sent by Evans and a staff member seeking employment opportunities at law firms that were the basis for stories by the District Dig and The Washington Post.

One of the council critics, Ward 1’s Brianne Nadeau, alluded to the controversy as one reason not to act hastily. “This is a very bad time because it looks like it’s reacting to a situation we’re dealing with now,” she said.

But Mendelson said the issue is structural, characterizing the objections of open-government advocates as stemming from a different view on the purpose of public records laws. “Is the intent of FOIA to make government entirely transparent … or to enable the public to see the documentation that’s behind a decision that we make?”

Nadeau dismissed that reasoning. “We shouldn’t be conducting personal business on government email,” she said. “I think there are lots of categories of private business that the public has the right to know about if it’s in a public account.”

Mendelson said the amendment is a prelude to a broader package of FOIA reforms proposed by the general counsel that he hasn’t yet had time to review. He predicted that that legislation — which he said will have a public hearing — will take time to finalize, making it important to take care of the most pressing changes right now, separately.

Though Mendelson urged council members to talk to the general counsel before taking a firm position, several of the skeptics remained unreceptive to the idea of making the FOIA changes as part of the city budget process.

Grosso said he’s not necessarily opposed to the intent behind the changes but would be more comfortable with adequate time to digest the proposals.

“I think they deserve a debate,” Nadeau said a few minutes later. She argued that the FOIA proposal isn’t germane to the city budget process, citing a council committee report that said the changes don’t require a fiscal impact statement.

Mendelson later countered that there is a nexus of FOIA and budget since the new provisions would end up saving money by reducing expansive requests. The annual cost of handling FOIA requests throughout the DC government has climbed to $3.1 million, he said.

Mendelson described a letter from the American Civil Liberties Union of the District of Columbia objecting to the FOIA change as misconstruing what the amendment would do, though critics cited such confusions as further reason for a public hearing.

Ward 6’s Charles Allen urged an opportunity for input “even if there is a rational reason” to consider a change to FOIA standards. “We fully understand the public hearing isn’t going to yield unanimous support for something, but it could help raise issues for us to think through when we’re talking about changing FOIA for the entirety of DC government,” he said.

At-large member Elissa Silverman, a former reporter with The Post and the Washington City Paper, described the proposed change as a “very important government transparency issue.” She predicted “unintended consequences” and cited “great concerns about limiting the access to information without really fully understanding” the issue.

Silverman proposed that the council instead add resources to the general counsel’s office to handle the higher volume of requests, a suggestion Allen later repeated.

In response to Mendelson’s call for timely action, Allen suggested that the chairman instead recraft the FOIA budget amendment as stand-alone emergency legislation after holding a public roundtable.

As Mendelson prepared to close the work session, Ward 5’s Kenyan McDuffie called out his colleagues for pushing so hard on the FOIA issue while not objecting to consideration of proposed tax increases that haven’t been subject to a public hearing.

It’s not clear where most council members stand on the FOIA matter, with several legislators having left by the time the issue came up as the work session stretched into the night. The FOIA issue wasn’t addressed by the three other members who spoke on the Committee of the Whole’s other budget recommendations — Evans, at-large member Robert White and Ward 3’s Mary Cheh.

Cheh did express support for the FOIA changes when they came up May 2 at the Committee of the Whole’s budget markup, where members approved the provision as part of their budget recommendations. Mendelson had mentioned the FOIA issue prior to the committee’s vote, and Cheh said she supported the idea of making clear that the law is intended to focus on official acts. She described the overall provision as a worthwhile update, noting inclusion of a provision that specifies that electronic records and information on personal devices are subject to FOIA requests.