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In a budget hearing earlier this year, D.C. Council Chairman Phil Mendelson waited for an answer to a routine question he had directed at Deputy Mayor for Education Paul Kihn. “Would you provide the enhancement requests that were not funded [in the mayor’s proposed budget]?” the chairman asked. And then they were interrupted by a poor internet connection.
When Kihn returned to the screen, Mendelson speculated on his lingering question. “I think that’s when your internet froze,” he said. “I’m wondering if that was intentional or not.”
Kihn was not fazed. He told Mendelson that Mayor Muriel Bowser’s budget provides the DME’s agencies with “exactly what we think we need to be successful,” and insisted that Bowser’s proposed budget appropriately funded all of his requests.
Mendelson went back and forth with Kihn for the better part of the next 10 minutes. The chairman’s frustration grew as Kihn, ever the Bowser loyalist, deftly sidestepped each question.
“Chairman,” Kihn finally said, “I am really sorry that I’m upsetting and annoying you. That is not my intent whatsoever. At the same time I am sure you understand that as a close advisor to the mayor, and someone who is deeply involved in the budgeting process, I am deeply supportive of the budget as submitted.”
Every year, D.C. agencies send their funding requests to the mayor. She considers these “enhancements” along with her own priorities to arrive at her final proposed budget. It is then up to the Council to approve the budget, often with some changes around the edges.
It’s clear, then, why Mendelson wants to know how much funding an agency believes it needs to properly function. The difference between agencies’ requests and Bowser’s proposed budget is good information to have if you’re looking to make changes.
But Bowser’s refusal to publicize these documents extends far beyond a single tussle with a deputy mayor. The same dispute is currently playing out in a case before the D.C. Court of Appeals. Like Mendelson, the public interest law firm Terris, Pravlik & Millian, LLP, representing a group of preschool-age children with disabilities, has been met with denials in its attempts to shake loose the budget enhancement requests from the Bowser administration.
The current appeal builds off a 2005 case between the city and TPM. The U.S. District Court for D.C. found in 2016 that the District failed to provide special education and related services to 3- to 5-year-olds the way the law requires. The court found the city in violation of the Individuals with Disabilities Education Act, the Rehabilitation Act, and District law and ordered D.C. to make several improvements.
Fifteen years later, TPM sued the District again in 2020 for violation of the D.C. Freedom of Information Act. D.C. denied TPM’s request for documents from two of Kihn’s agencies: the Office of the State Superintendent of Education and D.C. Public Schools. TPM’s request was part of their monitoring of the District’s compliance with the 2016 injunction.
The firm argues that the law requires the city to openly produce and post the records online. The city argues that budget enhancement requests fall within the “deliberative process” exemption to FOIA and that requiring the administration to publicize them would “violate separation of powers principles.” D.C. Superior Court Judge Heidi Pasichow sided with TPM and ordered the city to “publish the required documents” by Aug. 5, 2021.
Instead, on that August day, the Bowser administration (represented by the Office of the Attorney General) appealed the ruling. The D.C. Court of Appeals heard arguments from both sides on Sept. 28, when the District once again argued the budget documents should be exempt from D.C.’s FOIA law.
The Council is not a party in the case, but the body’s general counsel, Nicole Streeter, filed an “brief of amicus curiae,” or “friend of the court brief,” encouraging the appeals court to uphold Pasichow’s decision.
In her brief, Streeter says Bowser’s argument amounts to a “perverse reading of DC FOIA” that “would deprive a crucial provision of the statute of meaningful legal effect” and “fly in the face of the Council’s stated purpose in amending DC FOIA” in 2004. She says in court records the law “categorically and specifically requires the publication of the ‘budget requests … that agencies … transmit to the Office of the Budget and Planning during the budget development process.’”
“It would be anomalous for the Mayor … to be entitled to more accurate information regarding the actual budgetary needs of District agencies than the Council, which has the ultimate responsibility actually funding those agencies,” Streeter argues.
In an interview with City Paper, Mendelson echoes Streeter’s argument, saying transparency is vital to the Council’s ability to set a budget that meets the needs of the District’s government agencies and provides them with the resources those agencies need to serve the public.
Mendelson is adamant that the Council could better allocate taxpayer funds if the mayor proactively granted lawmakers access to the original budget requests, as Pasichow ordered. Instead, the Council has to rely on individual agencies for the budget documents. By Mendelson’s telling, independent agencies—those not directly under the authority of the mayor—readily give the Council their budget enhancement requests, while “every subordinate agency head and every deputy mayor feels that the budget is perfect.”
The mayor’s office did not respond to a request for comment on the case by publication time.
Todd Gluckman, the TPM attorney for the case, tells City Paper that “the District has a broad open government policy in its FOIA law. It touts itself as unique in its open government values and transparency.”
Bowser’s tight grip on these budgetary documents is not surprising to open government advocates. She has been notoriously hostile to FOIA requests, and FOIA denials have soared to an 11-year high under her leadership, Axios recently reported, despite her early campaign pledges for transparency.
The Court of Appeals is still deliberating on the Sept. 28 hearing, but Mendelson says he is optimistic that the judge will see through the mayor’s arguments. Gluckman says that a majority of the states adhere to similar legislation requiring financial information be made public, “and apparently without harm. So we think the District would be in good company if it complied with the law and made this information openly accessible to the community.”
In the budget hearing with Kihn, Mendelson referenced the ongoing litigation and Pasichow’s ruling.
“The council is the appropriator, not the mayor,” he lectured Kihn. “The Council needs to understand the needs of the agency in order to appropriate carefully and … accurately or consistently with whatever policies the Council has. That’s the fact of this government. And it is a fact that the law specifies that the enhancement requests are public documents and are to be provided to the Council. That’s why I ask this question. I’m not just makin’ this stuff up.”