III. The Freedom of Information Act
To implement the transparency initiative, we recommend that the new mayor submit legislation to the D.C. Council to amend and strengthen the District’s Freedom of Information Act by including provisions which:
- Gives the OOG explicit authority over FOIA: Clearly establish the role of the OOG, rather than the Executive Office of the Mayor, in implementing and enforcing the statute. See below at 15.
- Amend D.C. Code §§ 2-537(a) and (a-1) to give the OOG jurisdiction over administrative appeals;
- Strengthen attorney fees: Clarify that a requester who challenges an agency denial in Superior Court is entitled to attorney fees if, after a lawsuit is filed, the agency has released the records or changed its position, as well as when the court has adjudicated the issue in the requester’s favor, in line with the federal model. See below at 13.
- Establish a government-wide FOIA fee schedule: Amend D.C. Code §§ 2-532(b) and (b-1) to establish a government-wide FOIA fee schedule, clarifying classes of requesters to which fee waiver and benefit provisions apply. See below at 12, 13.
- Broaden affirmative disclosure: The scope of affirmative disclosure under D.C. Code § 2-536(a)(3), (4) and (5) should be expanded to automatically place in agency online reading rooms records and data that are frequently requested or otherwise in the public interest, FOIA requests and administrative rulings related to them.
- Declare that disclosure is the default: Strengthen the Preamble’s statement that disclosure is the default position by including language such as: “The law does not authorize withholding of information or limit the availability of records to the public, except as specifically stated within.” See below at 11.
- Make reporting requirements consistent with the federal FOIA.
- Define and expand the OOG’s duties and authority under FOI: OOG’s duties should be expanded to include adjudication of administrative appeals, FOIA mediation, investigation of complaints, issuance of advisory and binding opinions, and defending and enforcing OOG rulings through litigation in Superior Court.
- Strengthen sanctions for noncompliance: Increase the incentive for agencies and officials to comply by voiding search and duplication fees in cases of delay (as is the case under the federal FOIA), and imposing disciplinary sanctions for arbitrary, capricious non-disclosure. See below at 14.
- Require fee waivers in certain situations: Fee waivers should be required when the cost of billing and collection would exceed the applicable fee (as under the federal FOIA).
- Direct expedited court treatment of FOIA litigation: Expedited litigation is utilized in some states’ statutes and court rules and should be considered here.
- Amend the Board of Ethics and Government Accountability’s enabling statute where necessary to implement these FOIA amendments.