In a letter to the editor published in The Washington Post Tuesday, D.C. Attorney General Irvin Nathan attempted to defend the Gray administration’s proposed Freedom of Information Act amendments by likening FOI Act requests to broad government subpoenas aimed at the newspaper or private citizens.
He asked, “How would The Post, or any citizen, react if the government could subpoena all of its records, no matter how voluminous, without giving a reason; demand that they be produced in a matter of days; and leave the courts powerless to get any explanation for the demand, to place any substantive limits on it or even to extend the time for response?”
Nathan claimed amendments that broaden several exemptions and make their scope ambiguous are intended to give the Superior Court discretion to “limit abusive demands” and “allow overworked, under-resourced D.C. personnel adequate time to respond to legitimate requests for documents.” He erroneously asserted that the proposed amendments, which affect exemptions allowing the government to withhold trade secrets, deliberative process, law enforcement, critical infrastructure and attorney work-product records, “are based on the federal FOIA.” He added that they were not prompted by “the current corruption investigations in D.C., [and] are not designed to keep any important information from the public.”
The D.C. Council's Government Operations Committee will hold a public hearing July 9 on the mayor's bill and two others, another FOI Act amendment proposed by Council Member Yvette Alexander (Ward 7), and the Open Government Act of 2012 submitted by Council Member Mary Cheh (Ward 3).
According to Robert S. Becker, the D.C. Pro Chapter's First Amendmendment-Freedom of Information Chair, Nathan’s argument fails at its inception, because an FOI Act request for records prepared or compiled at taxpayer expense in performance of public functions cannot be compared to a judicial subpoena for businesses and personal records protected by the First and Fourth amendments to the U.S. Constitution.
The FOI Act starts with the premise that all government records are public unless they fall into a few narrow categories intended to protect privacy, public safety, national security, commercial and similar interests, Becker explained. The Constitutional privileges start with the premise that records of businesses and individuals are private, unless the government can demonstrate to a court that there is some compelling need to force disclosure
In addition, the Gray amendments bear little similarity to the federal FOI Act, according to Becker. They would permit D.C. agencies to withhold records federal agencies would have to disclose. They would vastly increase agencies’ ability to delay or avoid disclosure, and would limit the ability of requesters to appeal when denied access, he added.
Whether the corruption investigations prompted the mayor to propose these amendments is irrelevant, Becker asserted. Government transparency is a powerful antidote to government corruption. He said, by making it more difficult for D.C. residents to find out what their government is doing, these amendments would reduce the deterrent to corruption posed by the risk of disclosure.