Latest update: July 2021
Is there access to records of all parts of D.C. government?
No. The D.C. Council passed the Freedom of Information Act (FOIA) in 1976 to apply to records of only the D.C. executive branch. About 80 agencies process FOIA requests. The Council extended the law in 2001 to allow requests for its own records.
Government funds often purchase services via contract that you may want to know about. FOIA extends to records produced or collected in that connection where an outside contractor is performing a public function. Make a request as usual to the agency responsible for the contractor; the law requires it to release records from a contract just the same as agency records. Some documents from the early stage (solicitation, bids, award records) may have to be requested from the Office of Contracting and Procurement that handles business details for many agencies, though not all. The law requires some details of contracts costing $100,000 and over to be posted online without need of request.
The data elements are skimpy; FOIA request is still necessary to see bid and contract details. Confidential business information may be redacted. Before using FOIA, see the database of available contract and purchase order information available here.
What other laws provide access to some other kinds of D.C. records I might want?
- Open meetings and open data. Meeting records must be available for public bodies covered by the Open Meetings Act. See the relevant section of this website. D.C. government agency databases also must be evaluated and made public on a government-wide portal if they have no confidential details. “Open data” access is discussed in another section of this website. Evaluation has been inconsistent; some data not available on the data portal may be available under FOIA.
- Court records are not accessible by FOIA. Records of some cases since 2016 in parts of D.C. Superior Court are available from a court records system online. Older cases are still public records though paper files are retired. Digital files remain available at terminals in the clerks’ offices at the Moultrie Courthouse, 500 Indiana Ave., N.W. Court of Appeals records must also be available to the public at the courthouse, 430 E St., N.W., but only a few excerpts are online. Those (for now) are the docket (a chronological list of actions in a case) and some final opinions. Details here. More access is coming: the Court of Appeals in June 2021 announced a pilot project to put some case files online, but without a schedule or any other details. See here.
- Federal agency records are not obtainable through the D.C. FOIA. For records of some federal agencies with significant activity affecting residents here, a request to the agency following federal FOIA rules is needed. That includes the U.S. Attorney for D.C., U.S. Park Police, U.S. Marshals Service, Court Services and Offender Supervision Agency, Bureau of Prisons, and U.S. Parole Commission.
- Airport and transit records are available from the respective agencies, Metropolitan Washington Airports Authority and Washington Metropolitan Area Transit Authority (or METRO). These are independent bodies and not covered by federal, state or D.C. public records laws. But both have created their own rules covering requests, deadlines, exemptions, appeals and court enforcement. For records of the Reagan and Dulles airports and the Dulles Toll Road operated by the airports authority, see here. For METRO records (bus, rail, transit police), see here.
- Records required to be available online. The D.C. FOIA was enacted long before the Internet (the original law discussed putting records in “reading rooms”). But an update 20 years ago required agencies to proactively post online 12 kinds of records, to be available without need of a FOIA request. These include each agency’s staff, rules, spending, opinions in cases decided in the agency, and more. But the requirement has not worked. Most agencies ignore the law and there is no enforcement within the executive branch. A court decision in July 2021 for the first time ordered compliance in one instance, but it will probably be appealed and any effect reversing broader noncompliance remains to be seen.
How do I request a record of a D.C. agency ?
Direct request. You may submit a request to an agency directly by sending it to the agency FOIA officer. Each agency is required by law to have a FOIA officer and that individual should accept a request from any person or organization regardless of how it’s sent. (For accuracy, writing is best.) Look for the officer’s name, telephone number, and addresses for mail, email and FAX on a page required to be on each D.C. government agency website headed “Open Government and FOIA.”
If you’re not sure which agency should receive your request, contact the likely FOIA officer and discuss whether the agency may have the records you’re looking for. The FOIA officers change often; the Office of Open Government list updated January 2021 is available here. Another undated D.C. government list linking to some agency web pages is here.
If you write, mark the outside of the envelope or the subject line of the fax or email: “Freedom of Information Act Request” or “FOIA Request.” Include a daytime telephone number, email address or mailing address in your request letter so that the FOIA officer may contact you if necessary.
Portal. You may submit also through an online portal that accepts requests for about 60 of the 80 agencies that process FOIA requests. There’s no list; you have to scroll through a drop-down menu to find out if the agency you want is among the 60.
After creating a free account, you will log in to manage requests new and old. When you’re ready, go to a page headed “submit a FOIA request” where you will fill in 20 elements of needed information and choose the agency to send it to. The web interface is a decade old and little changed. The software was already developed, chiefly to serve federal agencies, when DC contracted for it in 2014. In the opinion of many users, it is poorly designed by modern standards of graphic design, web user experience and even just plain English. It lacks explanations of key terms such as fee waiver or obscure details applicable to few such as proof of identity and consent. A “Help” tab on the home page leads to an ironic exhibit of unhelpful content.
In contrast, there is a useful help desk available by email to FOIA System Technical Support, FOIA.Support@dc.gov or by telephone at 202-478-5838.
To complete your request on the portal it is helpful to think it through in advance. You’ll need to describe the request in detail and complete several text boxes, fill-ins and check-offs. These take time even for repeat players. If you dawdle, the system kicks an inactive user off after 30 minutes and doesn’t save incomplete work. Beware! You can see why it helps to draft the description of your request before logging in.
The Coalition has presented analyses of the system’s needed improvements and gained some, but D.C. officials have stonewalled and refused requests to replace the current portal. There are many new software systems available since vendors and nonprofits have grown to serve states and cities that all face the same issues of efficiently managing public records requests. Next-generation solutions could better serve users and the government.
There is no list of agencies not accessible via the FOIA portal. From website information for the agency, find the contact information for the FOIA officer and submit directly. This is how you have to reach some large independent agencies such as the Housing Authority and the Public Charter School Board that have their own governing board and are not in the mayor’s cabinet. Confusion remains: for example, the Board of Ethics and Government Accountability refers FOIA requesters to the portal but is not listed as an accessible agency in the drop-down portal menu of agency addressees. But all remain D.C. agencies and their records should be available under FOIA.
Each agency processes its requests, submitted via the portal or directly, from receipt to response. No office oversees or standardizes FOIA management. The result is that practice differs in ways that are not explained to the public. The mayor’s annual FOIA report shows, for 80 agencies, the variability in basic processing facts from the prior fiscal year. Data includes agency backlog starting a year, new requests received, number granted and rejected, exemptions claimed, processing time and backlog remaining, staff time and cost and fees collected.
Each request submitted to the portal is automatically assigned a tracking number; registered users can see all their requests (and appeals) when clicking on “request status.” The status labels include “received” and “closed” but with little fine-grained information in between. For example, the portal will display for months the news that a request is “in process.” The portal has a “dropbox” feature. When an agency has records responsive to your request it can post them to your portal account.
The FOIA portal also has an electronic “reading room” supposedly containing often-requested records. But it is not useful because agencies post almost nothing there.
How do I request records of the D.C. Council?
The legislative branch of D.C. government is called the D.C. Council (never “city council”). The records of the individual Council members and the work of committees or other offices may be requested under D.C. FOIA. Unlike other states’ laws greatly limiting access to legislative records, D.C. FOIA law has no separate treatment for requests to the Council. They are to be processed (search, deadlines, exemptions, etc.) like requests to any other public body. Two exceptions are:
- A denial of Council records may not be appealed to the mayor. The only recourse is to sue in D.C. Superior Court.
- Council records are not requested through the FOIA portal. Requests are submitted directly to the Council’s FOIA officers in the Office of General Counsel. Address and the Council FOIA process are on their website here.
Elected legislators everywhere are especially concerned about records of who they meet with and politically sensitive deliberations that could be revealed in emails, texts, letters, memos, or any other writings. The Post had to sue to get even office calendars of Council member Jack Evans (D-Ward 2) when he was under scrutiny for improper outside activities. The Coalition noted in 2019 a trend in which Council lawyers were rejecting more requests — the percentage granted in whole or part had dropped from 79 to 63 percent — and unsuccessfully experimenting with new denial strategies:
- declining in 2012 to search for records of official business on Council members’ private email accounts (which drew a lawsuit from the Coalition that was settled after the Council promised in 2013 to cease the denials and to at least request that members search such accounts in future);
- declining to search for some member records on a theory they were protected by a segment of D.C. Code allowing members to be free of “questioning” about anything said in “speech and debate” (which also drew a citizen lawsuit in which the Coalition played a supporting role that resulted in the Court of Appeals telling the Council in 2016 their claimed exemption was just wrong);
- slipping amendments quietly into the FOI law in unpublicized budget legislation in May 2019 to narrow the breadth of records available and tighten request details (later withdrawn after public concern that the sweeping ideas that would change the law government-wide had not been aired in hearings and could have deeply troubling effects).
Council members express concern about burden, though theirs is not great. The Council reports receiving one or two requests a week in recent years, and processed with less than a half-time staff effort , according to their data included in the mayor’s annual FOIA reports. Commenting on the FOIA amendments offered in 2019, Council Chairman Phil Mendelson at the time said (according to press reports), “The number of requests that the Council has received, and I think we’re seeing this in other agencies, has increased exponentially over the last year and the amount of money the Council is spending to process FOIA requests—and the government as well—has increased substantially.” He did not cite evidence.
If you have difficulty with a FOIA request to the Council, we may be able to help; contact the Coalition at email@example.com.
Because of a change in the Council email system, electronic mail before 2012 is no longer accessible, according to a Council response denying a May 2020 request for email about events in 2009-10.
How do I describe records I want?
The request form on the portal offers a text box to describe the records you are requesting. It has room for only 3000 characters including spaces, or 430-750 words. If a page or two are enough, draft the description offline, then when you’re ready to log in to do the request form, copy and paste it into the text box. If more space would be useful, with moderate computer familiarity you can write the description in your computer’s word processor and save it. When you’re ready to do the whole form, click on the box “Add attachment” next to “description document.” A window will open inviting you to browse your computer memory to find the saved file and click on it. It will be imported to the FOIA request form and be sent in when you submit the whole completed form.
- Be specific.
- The form asks you to check off from a limited menu the media you seek–audio, documents, email, database/spreadsheet, or video. But you can be more specific–do you want letters, emails, memos, text messages, plans, photographs, video, maps, permits, contracts, payment records, data files, spreadsheets?
- Give a range of dates to set boundaries on the search (required on the portal form).
- Give names of people who may have or know about the records you seek, or a link to a news report that stimulated your request, such as an official’s statement.
- Emails must be searched even if you don’t know exact names or email addresses of relevant staff (agency staff often mistakenly refuse even though court cases have settled the question).
- Specify how you would like to receive the records, for example, by download to your portal account, by attachment to email, or on a computer disk. Copying onto paper can be costly, so consider other ways first.
- The law also allows a requester to “inspect” the records the agency finds that appear responsive to your request. If there are many, ask to inspect them first before deciding on copying.
- Be “reasonable.” No joke, the law requires agencies to respond only to requests that “reasonably describe” the records wanted. There are many pages of federal court opinions sorting out what this means (as the federal FOIA says the same and our courts follow federal case law where D.C. laws are comparable). If an agency uses this requirement to reject your request, it’s easy enough to refine the request and try again. Though some states’ records laws allow barring a frequent requester, the law in D.C. does not. Neither the law or the portal set limits on requests from an individual or organization.
- No need to explain your reasons. Your right to a record does not depend on having a “good reason” for a request. Some states allow banning requests not in good faith (such as to harrass an agency) but there is no such provision in D.C. FOIA. Your purpose is relevant in one situation. Only certain users and purposes qualify for fee reduction or waiver (discussed below). You need to explain the use of the records if you request a public interest fee waiver, in the second text box on the request form on the portal or in your letter.
- The volume of a request is irrelevant. Years ago, the D.C. police union often asked for all emails of then-Chief Cathy Lanier and the agency unsuccessfully objected that large numbers alone made the requests unreasonable. But unlike some states’ public records laws, there is no limit in D.C. FOIA on “voluminous” requests. Whether you ask for a small, medium or large number of pages or files shouldn’t be a factor in the basic agency decisions on searching and producing records. Timing may of course be affected. Very large requests, especially those requiring redaction of personal details, may be released in batches. These can take months or even years to finish. And volume directly affects the fee the agency may collect for searching or copying.
- Know the limits. FOIA only compels an agency to release records created or obtained by the agency and under agency control when requested. Thus you can’t ask for
- answers to questions,
- transformations of existing data (making a table out of a spreadsheet),
- forwarding your request if the agency doesn’t have what you requested,
- records prohibited by other law, for example, D.C. vital records (birth and death certificates at least for very long waiting periods), records of charter schools, tax records, and autopsies and records of the D.C. Medical Examiner.
Can I request records about myself?
Yes. But the agency may ask for proof of identity. (A check-box on the request form on the portal asks if you are submitting any such material.) There is no separate D.C. law comparable to the federal law called the Privacy Act of 1974. (That law spells out your right to see records about you held by federal agencies and allows you to add a correction if you find a mistake.) In D.C., a request for your own record is under FOIA like any other, so exemptions may apply.
Can I get help with a request?
The Coalition is an all-volunteer organization and has no formal, staffed help desk or hotline. Even so, we try to answer all questions as best we can. Write firstname.lastname@example.org. There are other sources:
- D.C. Office of Open Government has informative web pages and staff can answer questions and sometimes unstick agency problems.
- An online service that helps people file requests nationwide is Muckrock.
- The Reporters Committee for Freedom of the Press has an online request generator.
- The D.C. government has a FOIA web page.
How soon will I get an answer?
The law includes deadlines for processing: an agency must respond in 15 days (not counting weekends and holidays), 25 days for video from police body-worn cameras.
The 15-day standard has proved difficult over the years. Most agencies receive relatively few requests so assign few staff and little specialized technology for FOIA work. A few agencies have heavy FOIA loads (three get over 1,000 requests a year, police, consumer, and fire–together a third of the 10,000 total in recent years). But even there courts would decline a lawsuit seeking an order to the executive to spend money to speed up FOIA processing to meet the statutory deadline.
The practical result is that many requests are delayed:
- In 2019, almost 3,000 requests, or over a quarter of the total, took 16 or more days.
- The year 2020 was worse when almost 5,000 (half the total) exceeded 16 days. Staff were sent home or detailed to emergency duties and many offices closed.
New requests after January 15, 2021, again are governed by the 15-day aspirational deadline. The Council had suspended the 15-day rule (making delay unenforceable) beginning in March 2020 but restored it effective January 15, 2021. There were 3,000 awaiting response as the last fiscal year ended September 30, 2020. That was triple the backlog a year before. Agencies were given a bit longer to clear that 2020 backlog, until March 24, 2021.
One COVID-19 delay remains. The law allows agencies to put aside a FOIA request that requires an on-site review of records that could present a significant risk to health or safety during the mayor’s issuance of a COVID-19 public health emergency. But the emergency has ended (expired without renewal July 25, 2021). The law requires any such delayed requests to be completed by September 28, 2021.
Unless agency FOIA staff will volunteer an estimate, you generally can’t find out how long your request may take. The portal status display includes for each request a column headed “estimate [sic] delivery date.” It is not useful because it= is not filled in with real numbers that reflect actual processing of your request. Agencies just fill in the full 15-business-day period from date of receipt and it never changes.
Nor is there a public display of aggregate processing data in real time. Reflecting the decentralized management of FOIA, there is no central authority that maintains a dashboard of FOIA processing stats showing what to expect at the agencies–for example, where there are slowdowns and backlogs.
The law allows an agency to send you a notice it will give itself a 10-day deadline extension, though only in special situations (a complex request or a need to consult another agency). This is confusing, since agencies take more time almost routinely without notice in many cases. Even if you think the special justification is bogus, it’s not appealable. The law does require, only in the case of these 10-day extensions, that the agency give an “expected date for determination.” There is no data availakle on the extent that agencies use this discretion.
What can I do about a delay?
Since delay is so common (see figures above) many requesters ask about enforcing the clear 15-day deadline in the law.
- If you hear nothing, check with the agency. Papers may be mislaid or the the request may need simple clarification. The Coalition recently found delay caused simply because the FOIA officer had not received the request; in the pandemic, he lacked technology to download requests filed at the portal.
- The law considers non-response to be a denial and denials can be appealed to the mayor (see below on appeals). An appeal prods action in many cases. In recent years one fifth of all appeals have been closed as “moot.” That means dismissed without need of any decision and written opinion, simply because the agency responded with action after the appeal was filed.
- Some requesters have resources to file suit in D.C Superior Court. For an example of a lawsuit in June 2021 by The Washington Post chiefly challenging delays in getting records of the January 6 Capitol insurrection, see here. See further discussion below about lawsuits to enforce FOIA generally. Though cases move slowly, you are assured of the agency’s attention. Every step is backed by the unquestioned power of the court and the agency, represented by lawyers from the Office of the D.C. Attorney General, must answer. But few cases challenge delay alone. The courts know thousands are also waiting and so they are not enthusiastic to help the few who can sue to jump the line.
My request is important; can I get a quick answer?
Unlike the federal FOIA system where “expedited” processing is available for a request involving danger to the life or safety of individuals or urgency to inform the public about government activity, D.C. law does not include any such special track.
As stated repeatedly here, delays can be addressed by checking in first at the agency. Contact the FOIA officer to find out what’s happening. Sometimes, requests get lost or staff can’t figure out what the requester wanted; these can be cleared up quickly when you ask.
Can an agency deny my request?
Yes. Only 40 percent of requests in 2020 (44 percent in 2019) were granted in whole. Denials in whole or in part (meaning redaction of items or pages) can be for various reasons:.
- No agency record. You may have asked for something that was never in a record, is kept in some other agency, or the record was discarded under records retention rules. (“Cutting costs by keeping fewer old emails” is a subject of discussion around D.C. government every few years, despite the low cost of electronic storage.) An agency that doesn’t have your requested record is not required to forward it or even find out where it may be. Staff sometimes know and will tell you–for example, D.C. Health Care Finance knows that Department of Human Services has all eligibility records for Medicaid health insurance; the Metropolitan Police Department knows that 911 calls are recorded at Office of Unified Communication.
- Records not reasonably described. The law says agencies must respond only to requests that “reasonably describe” the records. Agencies are not required to guess what you want or imagine an acceptable substitute, something maybe almost what you asked. They just deny a request that isn’t specific enough to search for and find. Clear requests at the outset help avoid this result, and willingness to negotiate if agency FOIA staff ask questions.
- Agency not required to create new records. The law is so clear it’s surprising how many appeals challenge unanswered questions (46 times in appeals decided so far from 2020). So don’t phrase your request as questions or for “information about” something, or for creating any new record such as a new chart or table displaying existing data.
- Records exempted by the FOIA. The D.C. FOIA law includes 19 exemptions. How often each is cited in denials is reported in the mayor’s annual FOIA reports, overall and by each agency. Those most used, in descending order of frequency are exemptions for:
- personal information whose release would be a clearly unwarranted invasion of privacy; an important point agency staff almost always overlook is that a strong public interest in release of the information can override this exemption;
- law enforcement records, if they are compiled for investigation purposes (not just routine records) and their release could affect enforcement proceedings, reveal informants or secret techniques, or invade privacy;
- records that are part of internal agency deliberations, exempt to encourage frank internal discussion of options before any policy or decision is final; and
- other less common items — confidential business information and trade secrets; records covered by “privileges” (legal rules protecting certain communications such as between attorney and client); and for records exempted by other laws beyond FOIA such as D.C. laws governing medical examiner records, vital records (births and deaths), exempting charter school records and some body-worn camera video such as domestic incidents or from inside homes, or federal laws on privacy of student educational records held in local schools.
If you have questions about a denial based on an exemption, the Coalition may be able to advise you. The law describing each exemption is very brief, causing many arguments in thousands of court cases. Agency FOIA staff may lack thorough training and mistakes slip by supervisors. You shouldn’t hesitate to speak up if something seems wrong.
The Coalition has worked especially to correct misinterpretation of the privacy exemption, the one most often cited. Few staff understand that public interest can override it. In addition, the MPD believes officers enjoy privacy protection on the job and therefore erases officers’ identity plus images of bystanders, houses and traffic when releasing video from police body-worn cameras. The Office of Open Government upheld a Coalition complaint about this in November 2020 after reviewing the law and finding no privacy interest justified the MPD interpretation. Over-redaction requires longer and more costly work of contractors working on videos frame by frame to blur details of events that occurred in plain view. It remains to be seen whether the opinion encourages MPD to review its policy. The D.C. Police Reform Commission in 2021 called for less redaction of video releases. The Office of Police Complaints and MPD also deny FOIA requests for officers’ complaint and discipline records on privacy grounds but the Reform Commission recommended ending that as well and a bill to do so is pending in summer 2021.
Can an agency deny some parts and release the rest of a record?
Yes. For example, a record may have a few items of personal data that should not be released to protect privacy (or a business secret). But the rest may be releasable. The law requires release after “segregation” of those exempt parts. This is also known as “redaction,” meaning covering up some words or details in a record.
Agencies may ignore the segregation obligation and simply deny whole records, in order to escape the tedious search for a few parts to redact. Automated scanning now available hasn’t come to D.C. If records you were denied may have had this mixed character yet were entirely denied, consider an appeal asking the mayor’s office or the court to compare the original and released records to evaluate redactions. (A quarter of the cases in the 2020 litigation report include redaction claims.) Courts have also held that it’s not the prohibited “creation of a new record” to ask that an agency redact one column in a table or spreadsheet to remove exempt content.
How do I appeal an agency FOIA denial?
There are two ways in the law. First, you may appeal to the mayor. Though there is an unusual backlog now (July 2021) after the slower processing during the pandemic, processing in prior years (through 2019) had been very rapid. And the process is free. The only other route is to bring a civil lawsuit in D.C. Superior Court, which takes time and can be expensive. FOIA lawsuits are discussed in a separate section below.
“Appeal” is a word associated with courts and decisions by judges based on briefs and arguments. But appeals of FOIA denials are different. A FOIA appeal is a simple procedure where your request for review is handled by staff lawyers in the Mayor’s Office of Legal Counsel. Requesters wonder whether attorneys for the mayor can fairly review actions of agencies headed by the mayor’s key appointees? The FOIA law assigns appeals to the mayor, so that is settled for now. (Federal law puts appeals of agency actions within the agency itself–even more potential conflict. But there is a mediation and ombudsman service in an independent Office of Government Information Services, an idea D.C. could consider formally adding to our Office of Open Government.) Observers report that the mayor’s decisions over the years have generally been fair and have not hesitated to find errors (in up to 50 percent of decided appeals in some years).
You don’t need to write a lot or show up anywhere. Your appeal (via the portal or in a simple letter, submitted to email@example.com), gives your side — what you asked for, any interactions with the agency, and what you got that’s unsatisfactory because they made some kind of mistake. The mayor’s office asks the agency for its file and an explanation of what they did searching for records and deciding what to release. This puts the agency on record.
The mayor’s inquiry often causes serious supervisory review for the first time, which can uncover errors that are quickly fixed. In recent years 20-30 percent of appeals were “mooted” — that is, dismissed without need of a decision when the agency took corrective action on its own, for example, completing necessary searches or withdrawing an incorrect exemption claim.
It’s all done on papers. No need to argue what you think the mistake(s) were, unless you think that will help the decider. The assigned lawyer will do a comprehensive review of whether the agency obeyed all relevant parts of the FOIA law.
The simple process and quick response make this a go-to proposition. Yet surprisingly few requesters take advantage of the opportunity for a second look at any denial. In the last few years, appeals have numbered 100-200, or under 10 percent of the thousands of full and partial denials. Last year (2020) was unusual with 255, but 70 were from a single requester.
The mayor’s appeals processing slowed after the 10-day deadline was suspended in March 2020. That left a major backlog of 80 undecided at the end of September 2020. Delays persist, according to FOIA users contacting the Coalition and our own experience. We have one appeal pending since June 2020.
What happens when the mayor’s review finds agency mistakes? It happened in one of every four appeals–31 of 140 in 2020. The appeal is upheld, the agency denial is reversed, and the mayor writes the agency with directions what to do to fix problems, called a “remand.” The largest number of errors are found in decisions at the agencies that get the most requests, the police department and Department of Consumer & Regulatory Affairs. (The two together received 2,900 or 31 percent of all FOIA requests in 2020.)
If your appeal is upheld and the mayor directs the agency to take further action, the result is uncertain. The agency may or may not follow through. For example, the agency may disagree with the mayor’s office interpretation of the law. And the FOIA statute provides no method of enforcement of the mayor’s decision. The requester’s options are to appeal again or sue in Superior Court.
Can I read past appeal decisions?
The Coalition believes the Mayor’s Office of Legal Counsel must publish its FOIA appeal opinions as the E-FOIA section of the law, DC Code 2-536, requires of every agency that decide cases. And the mayor’s office has done so for years, but perhaps the pandemic interfered. Recent years’ opinions are missing in the two places commonly used–an online searchable database and the D.C. Register, the official weekly legal publication of the D.C. government.
What if a denial shows a general problem?
If a denial appears to involve how an agency generally interprets its duties under the law, there is another route to raise the issue. The courts can correct that, of course, but that takes a long time and is expensive. The Office of Open Government by law has authority to investigate and issue advisory opinions on implementation of the Freedom of Information Act. Details and a form to request a review by the Office are here.
This authority has been a significant source of independent review of agency practice. The Open Government Coalition has had some success with formal complaints seeking opinions about agency policy, and though only advisory some of the opinions have had good results. The Coalition is pursuing amendments to FOIA that would add greater weight for the Office opinions. That could bring greater consistency to users’ FOIA experience across D.C. government.
Note two topics are not bugs but are features:
- Denials of FOIA requests by the D.C. Council may not be appealed to the mayor for review in the process described above. The only way to challenge a denial by the Council is to file suit in D.C. Superior Court.
- Fee waiver denials may not be appealed. The Mayor’s Office of Legal Counsel reads the law as authorizing only review of denials of records. And they say that doesn’t happen in cases of fee dispute: the requester can still get the records by paying the fee. In addition, one D.C. court opinion has found the courts can’t review such denials either. See further discussion under fee waivers below.
What do I say in writing my appeal?
D. C. provides barebones instructions here: https://dc.gov/page/freedom-information-act-foia (look half-way down the page). If you used the portal originally (to submit your request) it’s also is the easiest way to submit an appeal. The software automatically attaches your original request and forwards the package not only to the mayor but (as rquired) also to the original agency FOIA officer. You fill in a box or attach a text to explain the request (add timeline of events including calls and emails with the agency) and response if any, and attach a copy of any response. You may give details of your reasons for questioning the agency results such as:
- inadequate search;
- mistakes in applying exemptions;
- failure to segregate exempt material and release the rest;
- denial of records in requested format.
Again, you do not need to present a legal argument referring to the D.C. law or court cases. The mayor’s office looks at the whole record and spots any errors, whether or not you mentioned them.
Where do I send my appeal?
By email to: firstname.lastname@example.org.
By mail: The Mayor’s Office of Legal Counsel, FOIA Appeal, 1350 Pennsylvania Avenue, NW, Suite 407, Washington, DC 20004.
Send a copy of the appeal and attachments to the FOIA officer of the agency involved.
The Mayor’s Office of Legal Counsel assigns an appeal number and sends you a copy of their emails to the agency seeking the case details. You may or may not see the agency response (we can’t explain the inconsistency), but it will be discussed in the opinion.
Can I sue the government for delay or denial or other problems with a FOIA request?
Yes, but the easier route is to start with an appeal to the mayor (see above).
The much heavier lift in time and resources is to go to court. A FOIA lawsuit is a regular civil action against the D.C. government in D.C. Superior Court. Unlike some state courts’ rules, there is no fast track here for FOIA cases. It can take many months to get the court’s decision. Very few FOIA requesters pursue problems in court–a handful in a year.
D.C. FOIA allows you to go straight to court to challenge agency FOIA mistakes. That is, unlike rules for federal FOIA requests, you do not need to use the administrative (non-court) appeal to the mayor before filing a lawsuit. But note an appeal is a low-cost method to gather strategic information. Agency denial letters usually give skimpy reasons, mostly a bare citation to a law or regulation. An appeal forces higher-level agency staff to review the file to explain and justify the denial to the appeal attorneys in the mayor’s office. For a disappointed requester, the resulting mayoral opinion is a goldmine. Such opinions recap the government arguments (a preview of what they will say if you sue) and also give an evaluation of those points by the appeal office that knows the law. That information is invaluable as a requester considers further action.
Filing requires a $120 fee (waivable for low-income persons). Cases are filed electronically. All wait months to get before a judge. Lawyers defending a D.C. agency FOIA denial usually jump out before that and ask the court to dismiss the case before it goes any further. To prove their point that law and facts are both favorable to the government, they write up the law in a brief and attach sworn statements from staff about search or exemptions. A brief is needed to show the court there are conflicts that need further exploration. A requester who survives a motion to dismiss gets a scheduling order, setting a calendar for the next steps. It can extend many months. Another round of briefs ask the court to decide whether the case can end with “summary judgment,” or if a trial is needed. Conclusion at this stage is common; trials are rare in a FOIA case.
You won’t get to see disputed records but the judge can review them privately to decide if the agency was correct, for example, that they contain exempt materials — private personal details, confidential business details, or internal agency deliberations.
D.C. judges are reasonably skeptical of agency claims since they are often wrong, but even so, success usually requires both a skilled attorney to get the law right, and a long slog.
If you have a strong case, a few attorneys will take cases without requiring payments as the work goes on. They count on getting paid later if they win, since the law allows the court to order the D.C. government to pay a winning requester’s attorney’s fees and costs. But the District often contests a fee request, leading to another round of litigation that can add years to the struggle.
The Office of the Attorney General defends D.C. agencies sued for FOIA mistakes. That office issues a report every year in February on the cases active in the prior fiscal year. The report on 2020 (October 2019 through September 2020) is here. (Scroll through the mayor’s report; the OAG report begins at page 199.)
It shows 21 cases and even though many are not complete, D.C. already had to produce more records or correct over-redaction in 12. Eight were filed in 2018 or before, so you can see FOIA cases may take years. The oldest is from 2013, involving a request for Advisory Neighborhood Commissioners’ business emails sent on personal email accounts. D.C. lost the case (defending the commissioners’ denial of the emails) years ago but the two sides are still fighting over a $176,000 award of attorneys’ fees for the long legal battle. Of the five cases that ended last year, D.C. lost three and paid $60,000 in fees and costs.
Will the Coalition represent me in a FOIA court case?
Rarely. The Coalition has no attorneys on staff. With volunteer help, the Coalition sometimes takes cases that raise exceptional questions of law that affect many people, for example where the D.C. Council had a policy to deny records on questionable legal grounds.
Will D.C. charge a fee for my FOIA request?
There is no charge for a portal account or for filing a request.
Agencies may charge for searching, reviewing and copying records. They can charge even if the search does not locate any responsive records or if records are located but are withheld as exempt. A schedule of fees is published in the D.C. Municipal Regulations, Title 1, Section 408. Locate that here.
The fee regulation shows the charge for searching and reviewing is based on the level of staff doing it and ranges from $16 to $40 per hour. The first hour is free. If your request turns up a big stack of records you can keep copying charges down (set at 25 cents per page) by asking to “inspect” the responsive records first and copying only those of interest. The law allows this. Or bring your own scanner.
Expect high fees for copies of video from MPD body-worn cameras. Discussed above under the privacy exemption, the charges result from the incorrect MPD view of officer privacy that in turn requires excessive hours of redaction by expensive outside consultants. The Coalition has advocated for years for faster, cheaper and clearer body cam video. The Office of Open Government has held the MPD view of the privacy law is incorrect and the fees unlawful because they were not properly established. The D.C. Police Reform Commission echoed these views in its report. See discussion here.
Are there discounts or full waiver of FOIA fees?
There are two main kinds of fee waivers, one based on the requester, one based on the nature of the request. If you are a commercial requester, no waiver is available. Others seeking a waiver, be sure to include it in your request letter. The request form on the portal also has a place to check a box to ask for a waiver. Take care to also add text to explain how your request fits the requirements in the law.
The text box allows only 255 characters but a strong justification takes more space (going beyond just restating the law that your request is in the public interest). Agency staff deny waivers simply saying “insufficient justification.” Attaching a separate document is better, with full discussion of why you qualify.
- Partial waiver for media requests. Media requesters are eligible for waiver of fees except for copying. Some agencies may reject some forms of media as not qualifying (bloggers, podcasters, free lancers, book authors, or analysts at nonprofits). This happens if their FOIA staff have not kept up and think it means only The Washington Post. Federal courts expanded the definition years ago and the federal FOIA rules were broadened in response. But D.C. law is unchanged. The Coalition believes the more modern definition should be applied in D.C. If you believe a D.C. agency is unreasonably denying eligibility for a media fee waiver request, ask the Coalition for help.
- Partial waiver for requests from an educational or non-commercial scientific institution for scholarly or scientific research. These are also eligible for a waiver of fees except for copying, and now include not just teachers’ but also students’ requests. In 2016 the U.S. Court of Appeals for the D.C. Circuit overturned a longstanding view in the federal government that requests in furtherance of student work in university courses are personal, not “made by” the institution as the law seemed to require. The ruling, authored by then-Circuit Judge Brett Kavanaugh for a unanimous three-judge panel, rejected that interpretation:
- “We disagree with the Government’s slicing of the term ‘educational institution.’ If teachers can qualify for reduced fees, so can students. Students who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution.”
- Full or partial waiver for requests that are in the public interest. Requests where the information will primarily benefit the general public are eligible for full or partial waiver. To support a public interest fee waiver, a requester should address factors such as these (taken from DOJ guidance on similar federal law) beginning wih how the subject of the requested records concerns government operations and activities, plus:
- The disclosure is likely to contribute to understanding of these operations or activities;
- Disclosure will likely result in public understanding of the subject;
- The contribution to public understanding of government operations or activities will be significant;
- The requester has a limited commercial interest in the disclosure;
- The public interest in disclosure is greater than the requester’s commercial interest.
What can I do if my fee waiver request is denied?
First, be of good cheer: it seems almost nobody is paying fees. No data are published on fee waiver denials, but the actual amounts of fees collected are tiny. The mayor’s annual reports show just under $15,000 collected in 2020 and $121,000 in 2019. FOIA does cost money, but there must be little pressure to balance the books (including few truly voluminous requests lacking public interest).
D.C. agencies estimated their annual costs for FOIA processing at about $3 million in the last two years. Total staff effort is reported as only 35 FTE. That may be no surprise considering half of the 80 agencies reporting got 50 or fewer in 2020, only one request a week. Though that was an unusual year, the same was true in 2019.
If a fee waiver is denied, you can ask why and offer to provide more information since many agency staff do not understand fully the eligibility rules. See above on how the federal case law has evolved over the years such as on student and media requests.
If necessary, cut costs by narrowing the request (fewer people, fewer years mean less searching or copying), asking to inspect the records before any copying, or asking for the records to be downloaded to the portal or copied to a CD instead of printed out.
There is no effective appeal of fee waiver denials, either in the Mayor’s Office of Legal Counsel or the court. The mayor’s lawyers believe the law authorizes review only where records are denied. Those denied a fee waiver, they say, can still obtain records by paying the fee.
And one Superior Court judge has ruled the courts also can’t review a fee waiver denial. In a 2019 ruling, Superior Court Associate Judge Heidi Pasichow held that the FOIA statute leaves the waiver unreviewable, entirely up to the executive. Trial court opinions like hers are not binding on other cases but this wasn’t just out of thin air — it rested on some other D.C. Court of Appeals rulings.
In her opinion, Judge Pasichow began with the D.C. FOI statute which is clear that records “may be furnished without charge” if the agency finds it in the public interest. It doesn’t say “shall be furnished” as does the same section of federal FOIA. The court concluded a D.C. agency can, without further court review, make its decision in its own best judgment. It can even deny a waiver request that is made in the public interest.
The September 2019 opinion also upheld the reasonableness of a $9,000 fee the agency proposed to charge.
The case is Tormell Dubose v. D.C., No. 2018 CA 378 B (Superior Court), No. 19-CV-1239 (D.C. Court of Appeals). Dr. Dubose, a D.C. dentist, requested Department of Health records about his practice. He said he needed them in connection with a conflict with the department’s licensing board. In December 2019 the doctor appealed both the waiver denial and the reasonableness of the proposed fee. Briefing is complete and the case awaits an argument date.
How can I research the law and D.C. agency processing?
The D.C. Court of Appeals decides what D.C. law means if a FOIA requester or D.C. agency appeals a losing decision in Superior Court. Appeals are uncommon (only four pending in 2020). They take several years and require legal help for briefs and oral argument. There have been only a few dozen opinions on D.C. FOIA appeals since the law’s inception in 1977. But where D.C. and federal FOI statutes are similar, the courts here rely on federal court opinions. That provides a lot of research material to help determine what the law means, since there’s a half-century of cases at all levels of the federal courts interpreting federal FOIA.
Some resources are:
- a useful “FOIA wiki” is kept up to date with new cases by the Reporters Committee for Freedom of the Press;
- the U.S. Department of Justice publishes a 900-page legal manual called Guide to the FOIA available online;
- as cited often above, facts a bout D.C. processing are in the D.C. mayor’s annual reports to the D.C. Council on FOIA processing by each D.C. agency, including volume, backlogs, timeliness of processing, requests granted and denied in whole or part, exemptions claimed, staff time spent and dollar costs. The Mayor’s Office of Legal Counsel adds a report on administrative appeals each year, with brief summaries of the cases, the agencies and the result in each case. The Attorney General adds a report with information on each case in the D.C. courts during the year. These data may show you an agency that concerns you has a history of delay or being upheld or reversed on appeal.
- The Office of Open Government staff is knowledgeable and as responsive as their limited resources permit. There is a good chance they can help with background related to issues you have with D.C. FOIA matters
- And you may contact the D.C. Open Government Coalition. Our email address is email@example.com.
The text above is authored by Fritz Mulhauser, a board member of the D.C. Open Government Coalition and a D.C. attorney. It is up to date as of July 2021 and correct to the best of our knowledge. Additions and corrections are welcome (send to firstname.lastname@example.org). It is intended as general background only. It is not intended as legal advice applicable to any particular situation. Before taking any action based on this website or other general discussion of law, you should discuss the facts of your particular situation and seek advice from an attorney qualified to practice in the District of Columbia. No attorney-client relationship is created unless and until a written agreement (called a retainer) is signed by both you and an attorney.