FOIA Follies – Questionable D.C. Denials

dcogcadmin | January 4, 2018

A common call for help to the Coalition is from those denied a record they asked for under the D.C. public records law, the Freedom of Information Act or FOIA.

D.C. government has no check on the accuracy of FOIA decisions, leaving it to the requestor to speak up if there seems to be a problem. A simple appeal process exists but after dense letters of denial, few navigate it.

For the handful that complain, the results offer a frightening glimpse of what may be hundreds of incorrect denials.

In recent years, about half of all appeal reviews find agency mistakes and send the request back for a do-over.  For example, in 2016 (the most recent data) the 48 percent error rate found in 66 decided appeals means as many as 824 of the total 1,716 denials (in 5,900 requests decided) could have been plain wrong in one way or another but never came to light. (The extrapolation assumes the 66 were representative, which may or may not be true.)

To see what this means, here are two recent FOIA denials we heard about. See what you think about a process that yields such actions as these two:

• Denying a reporter’s request for records showing the financial sweeteners the District offered Jeff Bezos to snag Amazon’s planned second headquarters.  Called “HQ2,” the giant project reportedly involves $5 billion of investment and 50,000 jobs. CNBC says New Jersey offered $7 billion in potential credits against state and city taxes if Amazon locates in Newark and sticks to hiring commitments; California, $300 million. The public should be considering such massive commitments, as the math is often very fuzzy. And the D.C. offer?  Key details are secret–the papers with the crucial money details are under wraps because they contain sensitive material  — “commercial or financial information” obtained from an outsider whose “competitive position” would be harmed if it was disclosed, and documents revealing inside deliberations before decisions. This is confusing, to say the least; how could either kind of material get into a document sent out? (Update: we hear this decision may be reversed on appeal.)
• Denying a concerned parent’s request for the public schools’ food service contract, to help her learn about quality and costs negotiated in the plans for school breakfasts. Healthy food in schools has been on the public and Council radar for the last few years and the contract (awarded to food giant Sodexo but under protest) is worth $35 million. But you can’t know anything about the dollars involved. The 119-page signed contract was released with 1,083 redactions, chiefly dollar figures. Some were plain facts such as estimates of numbers of meals, others such as cost per meal were obviously agreed to; it was the final, signed contract, after all. Maybe it was some confused policy about “redacting all dollar figures” that resulted in excising even figures written in statutes and regulations that are part of the boilerplate–including the minimum wage! (See attached sample page.)  Explanation? The bid protest under way and privacy, neither of which probably apply; and in the final irony, the one truly private fact, the address and phone number of the Sodexo executive who signed, was left unredacted. (Update: appeal planned; we’ll let you know.)

Applying FOIA law is complex, with a bushel of exceptions and court cases filling thousands of pages in the law books. But maybe it’s time for D.C. Council oversight to take a look at D.C. agencies’ FOIA staff training and supervision and press for improvement in the 50 percent error rate and such howlers as the secret Amazon bid and secret school breakfast details.