D.C. Council Chairman Phil Mendelson is proposing a paid of changes to the city’s open-records law, prompting pushback from open-government advocates who say they could stifle public access to government emails and other documents.

Tyrone Turner / WAMU

A pair of proposed changes to D.C.’s Freedom of Information law is drawing opposition from open-government advocates, who say they could potentially make it tougher for the press and public to request and obtain government emails and other documents.

The changes are included at the end of a 160-page budget document published by D.C. Council Chairman Phil Mendelson late last week. One clarifies that D.C. agencies should disclose information “regarding the affairs of government and the official acts of public officials and employees.” Currently, the city’s Freedom of Information Act, better known as FOIA, more generically says agencies should disclose “information” that’s requested.

A second proposed change says that anyone requesting information under FOIA should “reasonably describe” what they are looking for.

Council officials say the purpose of the proposed changes is in part to tamp down on overly broad FOIA requests that can produce tens of thousands of documents that government staffers then have to review to ensure they do not include information that can legally be redacted or kept from public disclosure.

“The number of requests that the Council has received, and I think we’re seeing this in other agencies, has increased exponentially over the last year and the amount of money the Council is spending to process FOIA requests—and the government as well—has increased substantially,” Mendelson said Monday.

According to an annual FOIA report, in 2017, the Council received 43 FOIA requests, expending 180 hours of staff time to review the document—time that was worth an estimated $7,401. A year later, the Council received 72 FOIA requests, resulting in 616 hours of staff time worth $97,684.

Council officials also say they want to clarify that FOIA should apply only to what government agencies and staff do in their official capacities, and not private matters that may happen on government time, but are not related to an official government action.

“Our argument is that the purpose of FOIA was for open transparency of government actions and the actions of government employees in their official capacities, not necessarily anything and everything that happens to fall on a government server,” said Nicole Streeter, the Council’s general counsel.

But open-government advocates are sounding an alarm over both the purpose of the proposed changes and the way they have been dropped into a budget bill, instead of introduced as a stand-alone measure that would get a public hearing.

“This could be extremely consequential and undermine a large part of what the District’s FOIA currently covers if we’re not careful,” said Tom Susman, the president of the D.C. Open Government Coalition. “This needs a public airing.”

Susman worries that narrowing the definition of what the government has to disclose after a FOIA request could mean that newsworthy and consequential information would remain hidden from public view. That, say other advocates, could have included the emails sent by Ward 2 Councilmember Jack Evans and disclosed after a FOIA request by the Washington Post in which he sought employment opportunities at law firms that lobby the Council. While sent from his official Council email address, say the advocates, the emails could be defined as not being related to his official duties and thus not subject to disclosure.

But Mendelson and Streeter both said the proposed changes had nothing to do with Evans. “No, it’s not a Jack Evans bill,” said Streeter.

Adam Marshall, an attorney with the Reporters’ Committee for Freedom of the Press, says he’s concerned with the provision that would require someone to “reasonably describe” what they are looking for when filing a FOIA request.

Council officials say this wording stems from contentious litigation between the Metropolitan Police Department and the union representing police officers, which in 2010 made a FOIA request that city officials declared to be so vague and broad that it produced almost 40,000 pages of documents that had to be reviewed by government staff. The D.C. Court of Appeals ruled against the city in 2016, ordering that the documents be disclosed.

“We do have [people] tossing out random FOIA requests, but also tossing out FOIA requests that are not limited that are generating thousands of emails that we have to go through, and not just us, but also other agencies as well,” said Streeter.

But Marshall said Mendelson’s proposed change would “narrow” FOIA and put too much of the burden on the public when requesting documents from the government.

“The federal courts have been very clear that just because a request gets lots of records, it doesn’t mean the request wasn’t reasonably described,” he said. “Sometimes a requester may include search terms, but agencies also have an obligation to use their expertise to find documents that are responsive to a request.”

This isn’t the first time the annual budget process has been used to propose changes to the city’s open-records law. In 2015, Mayor Muriel Bowser tried to slip a provision in her budget that would have prohibited most public disclosure of footage from body-worn cameras. The provision was unsuccessful.

Another less controversial change proposed by Mendelson would clarify that FOIA could apply to emails and documents produced on privately owned phones and tablets. Streeter said that could even include text messages sent by government officials as part of their normal duties.

Streeter also said that her office has drafted a longer bill—20 to 30 pages—to more comprehensively amend the city’s FOIA law, but did not disclose exactly what provisions were included. That bill would be subject to a public hearing.

This story originally appeared on WAMU.