This post has been updated 12/23/16.
If the government doesn't keep data in the form requested, what is the right agency response?
The question is significant since presumably requesters, unfamiliar with government organization and terminology, often describe what they want in a way less than clear.
Shouldn't the answer be, to offer some help refining their request, without a big runaround?
John B. Williams, attorney for D.C. Ward 6 Advisory Neighborhood Commissioner K. Denise Rucker Krepp, argued just that position in a hearing last week (14), explaining to a skeptical federal judge, Ketanji Brown Jackson, that U.S. Department of Justice Freedom of Information (FOI) officials were wrong last year to deny his client’s request to the U.S. Attorney for D.C. crime data by ward just because they didn’t exist.
“Such a technicality is not a valid basis for denial of a FOIA request,” Ms. Krepp’s court papers filed in May had said. (See an earlier blog posting on the case and other calls for more access to crime data in DC.)
D.C. crime data “exist” in the files of the U.S. Attorney of course, but aggregated by police district, not by ward.
And DOJ told Ms. Krepp that when she appealed the initial denial, suggesting she ask for the records again in the available format.
In court, Williams said instead of “stonewalling” and requiring more formalities (a second request), federal officials should have explained what was available and provided it without more ado.
He pointed to exactly such a more forthcoming response DOJ officials gave when Senator Charles Grassley (R-Ia.) asked about the Krepp request – promptly sending him the alternative police district data. (Of course, a Senator’s inquiry is not exactly a routine FOI request.) Grassley passed those data to Krepp (which allowed the government to point out her request had in effect been satisfied long ago, even if indirectly).
Marina Braswell, attorney for the U.S. Department of Justice, defended the initial answer, since the request (for data by ward) was perfectly clear and needed no discussion or tortured process of interpreting ambiguous language.
Where the request can’t be answered and officials have no idea what other data would satisfy the requester, Braswell argued strongly the court should not find any new legal obligation for consultation. In this she echoed the judge’s earlier response to the plaintiff that Krepp’s idea of the proper response would impose a “huge administrative burden, to conjure what was meant and offer maybes.”
Nothing in the current federal FOI law, or in the thousands of court cases interpreting it since its passage in the 1960s, imposes such an obligation now, as Krepp’s attorney acknowledged to questions from the court.
The judge had sent signals of her views during the hearing—that she “must be missing something” why a lawsuit was filed with no legal basis and where the plaintiff had received via Senator Grassley the data at issue. After 30 minutes the court recessed, urging the parties to talk about a way to end a case she had called “somewhat ridiculous.”
After discussion between the parties and with the court back in session, Ms. Krepp’s attorney notified the court the suit would be voluntarily dismissed. In a largely symbolic victory, the plaintiff agreed to accept the police precinct data if delivered directly with an official letter, with no need of further request, and with no fees charged.
For the Hill Rag, Christine Rushton reported the end of the case last week (15), with quotes from the letter from U.S. Attorney Channing D. Phillips and a letter from Krepp to the neighborhood, under a headline “DOJ Caves to Commissioner Krepp.”
Rachel Sadon for DCist also reported Wednesday (21) on the end of the case. Krepp maintained her government error theory of the case in an interview, telling the reporter, "[The judge] demanded to know why I was still in court when I already had the information ... My response to that is [the DOJ] just gutted the principle of FOIA ... When you submit a Freedom of Information Act [request], usually the individual who submits the request gets it. Not everybody is going to have a Senator Grassley who is going to send a letter. There's like a .001 percent chance of that happening."