Sierra Club Seeks to Protect Freedom of Information Act

Dear Chairman Mendelson,

On behalf of the Sierra Club DC Chapter and our 3,000 dues-paying members, we are writing to strongly object to the anti-democratic, secretive, and wholly unnecessary amendments to the DC Freedom of Information Act (FOIA) that the Council is considering in the Budget Support Act to be voted on next week. As an environmental advocacy organization, the Sierra Club has long relied on open government laws to shed light on government activities, which is critical to our mission to protect the environment and DC residents from environmental harms. The proposed amendments will only make our ability to fulfill that mission more difficult, without good reason.

Freedom of Information Act laws, at the federal, state, and local level, have been on the books for decades, and there are many well-established limits to what requesters may obtain and the resources government officials must expend to respond. The overarching principle is always reasonableness: requesters must reasonably describe the records sought; the agency must reasonably construe the request; and the agency must conduct a reasonable search. The proposed amendments seek to overturn these long-standing principles by making it more difficult for requesters to seek records, making it easier for the request to be read narrowly, and allowing searches for records that do not actually provide what is requested. We refer you to the lengthier treatment of these issues addressed in the letter you received on May 7, 2019 from the DC ACLU. The Sierra Club agrees with the ACLU’s concerns on this matter.

Since there have been no public hearings and these amendments are being jammed into the budget, we have little idea why the Council maintains that seriously weakening DC’s FOIA is necessary. However, we note that according to a recent news story, part of the purported justification is increased costs in responding to FOIA requests. The numbers, however, tell a different story.

In particular, the story notes that while Council staff spent $7,400 responding to requests in 2017, the costs somehow skyrocketed to almost $100,000 in 2018. However, the story also explains that in 2017, staff spent 180 staff hours on this work, while in 2018 they spent 616 staff hours. That means that somehow the cost/hour for this work went from about $41/hour ($7,400/180) to about $160/hour ($100,000/616). Given these numbers, we urge that the Council focus its attention on why its cost/hour for FOIA reviews have risen by 400% in one year, rather than seeking to use those numbers as an excuse to gut the public’s fundamental right to know what its elected officials are doing.

Finally, we also understand that one of the other concerns is that FOIA should only be used to obtain records related to Council members and their staff’s official business. However, there is a much more basic solution to that problem, if it exists: the Council and staff should not be using government resources to conduct personal business. The FOIA only covers records created or obtained by the government, and thus to the extent government employees are generating records on their own time – and with their own resources – those records already would be exempt from FOIA. But if they choose to use government email, government computers, and official time to conduct personal business, there is no good reason the public should be categorically denied access to that information, which, as we have seen in recent months, can shed important light on the relationships between officials’ public and private work.

For all these reasons, the Sierra Club urges the Council to reject these amendments, and will inform our members of how the Council decides to proceed.

Sincerely yours,

Mark Rodeffer
Chair, Sierra Club DC Chapter

Howard M. Crystal
Legal Chair, Sierra Club DC Chapter

CC:    
Councilmember David Grosso, At-Large
Councilmember Anita Bonds, At-Large
Councilmember Elissa Silverman, At-Large
Councilmember Robert White, At-Large
Councilmember Brianne Nadeau, Ward 1
Councilmember Jack Evans, Ward 2
Councilmember Mary Cheh, Ward 3
Councilmember Brandon Todd, Ward 4
Councilmember Kenyan McDuffie, Ward 5
Councilmember Charles Allen, Ward 6
Councilmember Vincent Gray, Ward 7
Councilmember Trayon White, Ward 8