Phil Mendelson runs interference for Jack Evans
By Jeffrey Anderson
The timing was exquisite.
District Dig had just received a letter from an assistant general counsel to the D.C. Council, denying a portion of a Freedom of Information Act request related to Ward 2 Councilmember Jack Evans.
Release of certain emails on Evans’s email account between Evans and his ex-wife would constitute “a clearly unwarranted invasion of personal privacy,” the lawyer said.
Several hours later, WAMU reported that Council Chairman Phil Mendelson had slipped a technical amendment into the city’s 160-page budget bill that said FOIA should not apply to emails from a government server that are not related to official government actions.
Soon, The Dig learned of an amendment to the proposal that would apply to prior pending FOIA requests, including “any civil action pending on that date.”
“No, it’s not a Jack Evans bill,” Nicole Streeter, the Council’s general counsel, and Mendelson’s former chief of staff, told WAMU’s Martin Austermuhle.
Mendelson says he would like to limit FOIA disclosures to information “regarding the affairs of government and the official acts of public officials and employees,” and would require requesters to “describe with particularity” what they are looking for.
He has offered multiple reasons to narrow the language of the existing statute, which is based on the federal version. FOIA requests have become overly broad, he says, and the increasing use of FOIA is taxing government resources.
But his most pointed remarks suggest that officials who use their government email accounts should not be subjected to sweeping requests.
“FOIA wasn’t intended for fishing expeditions,” The Washington Post quoted him as saying. “Government is having to devote increasing resources to dealing with very broad and unspecific FOIA requests, some of which have no relation to official business. And that was not the intent of FOIA.”
He also tried personal privacy as an issue: “FOIA should not be to be able to get salacious information about a council member because he or she was foolish enough to put something on their government account. That’s not what FOIA is about. FOIA is for you to understand the workings of government.”
Mendelson’s concerns, timing-wise, coincide with the denial of a request from The Dig in April, asking Streeter’s staff to narrow a broader request to emails between Evans and his ex-wife that also contain the names Helen Sebastian or John Nalls.
Helen Sebastian is a vice president and private banking underwriter at Capital One.
John Nalls is a notary public who notarized two Deeds of Trust between Evans and his lender that are filed with the D.C. Office of Tax and Revenue, Recorder of Deeds:
The first loan was with Capital One, on January 26, 2012, for $800,000;
The second, also for $800,000, was with First Mariner Bank, on April 12, 2013. (Evans lined that one up through a “Subordination Agreement,” on December 7, 2012.)
As The Dig reported this week, Evans paid off the first loan with the second loan, only after having signed a notarized agreement in 2011 with his wife Michele.
The “Agreement,” filed with the Recorder of Deeds on March 18, 2013, states that Michele would invest “in excess of $600,000” to renovate “Jack’s House,” and that the house would serve as security for the debt.
“WHEREAS, the parties agree that legal title to Jack’s House shall remain solely in the name of Jack Evans, but that all of the property and property interests of Jack Evans will serve as security for the repayment of all monies invested by Michele Evans in Jack’s House,” the Agreement states.
The Agreement further states that Evans would not use the house to secure any other debt “in excess of the total amount of the first and second mortgage liens in place against the property as of the date of this Agreement,” unless Michele Evans consented in writing.
Evans later took out a $1.5 million revolving line of credit and repaid his wife within five days, in May 2014, according to the Recorder of Deeds. (About a month later, he paid off a $450,000 creditor loan from 2003.)
The sequence of these transactions speak to a precarious financial situation for the chairman of the Committee on Finance and Revenue. Taken as a whole, they could provide insight to his solicitations of outside business from his Council email and the resulting ethics controversy– if not a federal grand jury probe he is staring down.
Mendelson’s comments this week seemed not to reflect the concerns of various constituencies that have called for a stronger response to such ethical lapses, and suggested a desire to limit further insight into Evans.
Some see the Freedom of Information Act as serving a higher purpose.“Transparency is the best way to safeguard the public trust and hold the government accountable, and we should embrace it, not fight against it,” Attorney General Karl Racine said in an email to The Dig. “FOIA is an important tool that keeps government and elected leaders accountable to District residents.”
The proposed change in the FOIA law has not gone over well with proponents of the First Amendment. “The first reaction that comes to mind is that someone made a big mistake,” says Arthur Spitzer, Legal Director of the ACLU of the District of Columbia.
Mendelson’s concerns are overblown, Spitzer says. “Some requests are a fishing expedition for no good reason, but you can have ones that are focused and specific that can be voluminous as well.”
Spitzer does not see the need for a change in the law as it pertains to specificity, either. “The courts have said that if officials don’t understand the request then they can get back in touch [with the requester] and have a dialogue about what is reasonable,” he says. “The clock does not run until there is a reasonable understanding of what the requester is asking for.”
As to privacy, Spitzer sees even less need for changes in the law: “It comes down to a balancing test between what’s in the public interest and the privacy right that would be infringed. The privacy right must clearly outweigh the public interest. The FOIA officer is exercising the same judgment here as a judge would.”
It’s hard to say what Mendelson is thinking. His reasoning has positioned the notoriously pragmatic politician in sharp contrast to the District’s chief elected law enforcement officer and the ACLU.
He did not respond to an email to his communication director or a call to his flip phone.
Racine withheld judgment on Mendelson’s proposal. Yet he staked out a different position: “While I have not had an opportunity to discuss the merits of this proposal with the Council, I recommend that any revisions to FOIA be done with the purpose of maximizing transparency and serving the public interest.”
Spitzer scoffs at the notion that Mendelson is not protecting Evans from further scrutiny.
“The more I look at this, the more it stinks,” he says.Update: The original post misstates Mendelson’s proposed change to disclosures regarding the affairs of government under D.C.’s FOIA law. Mendelson’s proposed change is to narrow the standard for disclosure to require requesters to “describe with particularity” what they are looking for, a standard that opponents of the proposal say would be impossible to meet.