Open Records
Updated June 2024
No, only executive and legislative branches. The D.C. Council passed the Freedom of Information Act (FOIA) in 1976 to apply to records of the D.C. executive branch (where about 80 agencies now process FOIA requests). The Council extended the law in 2001 to allow requests for its own records.
Records of government work done by contract are accessible. FOIA applies 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.
Other D,C. law requires some facts about contracts costing $100,000 and over to be accessible online without need of a request. See database here. But the published data are skimpy. Key documents from the contract award stage may require a request (solicitation, bids, award records) to the D.C. Office of Contracting and Procurement. It handles contracts for many agencies, though not all.
A FOIA request is needed as some contract records such a cost proposals include business information that private companies consider confidential and are exempt from FOIA release. Some details are redacted in contract records before release.
- Open meetings. Meeting records (notice, agenda, video,, minutes or transcript) must be published by public bodies covered by the Open Meetings Act. See the access to meetings section of this website.
- Open data. D.C. government agency databases also must be evaluated and made public on a government-wide portal if they have no confidential details. Access details are in another section of this website. Evaluation by agencies of their own databases for release has been inconsistent and there is no effective oversight. Repeated challenges have shown data not available on the data portal may be available under FOIA.
- Court records are not accessible by FOIA. D.C. has two courts– trials are held in D.C. Superior Court; appeals are heard in D.C. Court of Appeals. The Superior Court record has been digital for years, with case files accessible at terminals in the clerks’ offices at the Moultrie Courthouse, 500 Indiana Ave., N.W. Some case records since 2016 in parts of D.C. Superior Court are available online. Older cases are still public records though paper files are retired and stored offsite. Court of Appeals records are available to the public at the courthouse, 430 E St., N.W., but only a few excerpts such as case dockets and some opinions are online. Online access to further case records (briefs, orders) is being slowly tested in a “pilot” project since 2022. The state of the effort is described in this order. To encourage more rapid pace of expanding online access, the Coalition has submitted comments to the Court.
- Federal agency records are not obtainable through the D.C. FOIA. Requests under federal FOIA are necessary for D.C.-related records of some federal agencies with significant activity here, such as the many connected to criminal justice. That includes the U.S. Attorney for D.C., U.S. Park Police, U.S. Marshals Service, Court Services and Offender Supervision Agency, Federal Bureau of Prisons, and U.S. Parole Commission. The Public Defender Service is neither a D.C. nor a federal agency for FOIA purposes but statistics are in budget materials and the General Counsel will make records available where possible.
- Airport and transit records are available from the respective agencies, Metropolitan Washington Airports Authority and Washington Metropolitan Area Transit Authority (or METRO). These independent bodies are not covered by federal, state or D.C. public records laws. But both have published 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.
Yes, but compliance is poor. In D.C. FOIA requires D.C. agencies to post online 12 kinds of records — staff, rules, spending, opinions in cases decided in the agency, and more (and an index). Unfortunately, the requirement has not worked. Most D.C. agencies have ignored the law for years, and there is no enforcement by the mayor or Council.
The Coalition for years audited compliance–see for example a report in 2010 here and another in 2016 here. But we stopped since the results were consistently awful, and no one seemed to care.
Later, Coalition complaints led to investigations and opinions from the Office of Open Government, finding specific non-publication situations to violate the D.C. FOIA. But neither executive nor Council has been interested in seriously addressing the problem, as solutions often require confronting limited information technology staffs and budgets in agencies. For example, emergency spending of several million dollars was needed in the case of the former Department of Consumer and Regulatory Affairs, after it was found in 2016 to have avoided publishing building permits — years after planning offices nationwide had transitioned to digital records that are readily published.
Noncompliance was never challenged in court until recently. A D.C. court decision for the first time in July 2021 ordered the mayor to publish agency budget requests as the law required. The mayor believes these are confidential internal communications with her top leadership and has aggressively challenged the decision on appeal, including arguing the publication law exceeded the powers of the Council. The Council has pushed back with its own arguments at both trial and appeal.
The Open Government Coalition (joined by five other groups) filed an amicus brief supporting the law and the case was argued in 2022. Meanwhile, compliance remains disappointing, and Coalition advocacy goes disregarded, for agencies to get ready for new teeth to the law. On the case, see latest blog post here.
Coalition advocacy for publication continues to target agencies that decide cases such as the Office of Administrative Hearings (with a 20-year backlog of case opinions). The Rental Housing Commission in 2023 admitted it had avoided publication of many opinions about tenants’ rights. They began complying following an Office of Open Government opinion upholding our complaint.
In his 1995 book Between Justice and Beauty: Race, Planning and the Failure of Urban Policy in Washington, D.C., on the destruction of Southwest D.C., GWU professor Howard Gillette, Jr., added a note on sources: “limited funding and staff have prevented the [D.C.] archives from becoming the central resource it was intended to be for the record of the city’s modern history.” He pointed to the contrasting richness of sources on the District in the National Archives and Library of Congress.
The amazing records compiled for a “compensation commission,” describing the individual and family histories of thousands of formerly enslaved people in the District after Congress in 1862 passed an act freeing them and compensating owners, are held in the National Archives, not D.C.
A new D.C. Archives building is on the drawing boards on the University of the District of Columbia Van Ness campus, following years of advocacy by the Friends of DC Archives and the formation of an Archives Advisory Group by the D.C. Council. News and notices of the Advisory Group virtual public meetings are on Twitter. The Open Government Coalition has joined the advocacy in recent years to assure the D.C. Council hears many voices arguing that older records should be accessible as well as recent ones.
Awaiting their spiffy new home, some D.C, records are stored at a warehouse at 1300 Naylor Court, N.W. Staff from the Public Records Office in the Office of the Secretary of the District offer limited access. “Research hours” are Tuesday and Thursday, 9 am – 12 pm for land records research only, and by appointment. Details are here.
Types of records now in the archives include very old birth, death and marriage records, wills, and land records from the old Recorder of Deeds Building closed years ago on Judiciary Square. A list of some specific kinds of files in the collection is here (including details on mayoral items). A small number are digitized; see those here.
Many more older government records of the District are archived at various places with various rules of access. The most updated general information is a finding guide developed in spring 2022 by the Coalition and community colleagues.
An older guide is the website created by the DC Africana Archives Project which concluded in 2017. The George Washington University’s Special Collections Research Center and Africana Studies Program joined with five partner archives throughout the city to gather in one place descriptions of collections to enhance access to previously unavailable research materials. The scope included records documenting the history of the African diaspora in D.C., the civil rights movements, the struggle for Home Rule, the rise of Black-owned businesses, the development of Howard University, slavery in the nation’s capital, jazz music in D.C., and the literary arts.
Other resources include the D.C. History Center at the old Carnegie Library (now the Apple Store building) in Mt. Vernon Square, N.W. It has a small collection but very helpful staff who know all the rest around town. The D.C. Public Library has numerous local historical collections at the main building, the Martin Luther King Jr. Memorial Library, 901 G St., N.W. Two are the “Dig DC” and “People’s Archives” collections.
On specific kinds of older records, here are some details:
- Complex history makes for complex records. D.C. government in its current form has existed barely 50 years. Congress in 1973 passed the D.C. Home Rule Act that created the elected mayor and the 13-member legislature, called the D.C. Council (never “city council”), and the hyper-local Advisory Neighborhood Commissions. Previously, the President appointed commissioners who governed the District with overbearing scrutiny by Congress. Records from the years preceding Home Rule are held by the federal National Archives and Records Administration (NARA).
- Papers of past D.C. mayors are divided between official files kept in the government archives collection and personal papers given to university libraries. For example, Walter Washington and Sharon Pratt Dixon gave personal papers to Howard University (described here and here) while their official files are in the D.C. archives, which also has some official papers of Marion Barry and Anthony Williams. Details of more mayors’ records are in the finding guide.
- D.C. non-voting delegate in Congress. The first, Walter Fauntroy (1971-91), gave his papers to George Washington University. His successor, Eleanor Holmes Norton, continues in office.
- Papers of the D.C. Council would include records of members and the legislature generally. Individual papers of early D.C. Council members are scattered–those of Wilhelmina Rolark are at Howard, of Arrington Dixon and Hilda Mason are at D.C. Public Library. Many more are listed in the finding guide.
- Records of earlier courts in D.C. Cases were heard in courts operated by the federal government until 1970. Records up to the establishment of separate D.C. courts in 1970 are stored at Naylor Court and National Archives with access controlled by the courts.
Those writing about the District use many kinds of records along with interviews and newspaper files. See, for example, the interesting source notes from Harry S. Jaffe and Tom Sherwood, Dream City (1994) here. And source notes for Lucy G. Barber, Marching on Washington (2002) here. A sweeping review of decades of writing on District history is in “Essay on Sources,” pp. 463-470 in Chris Myers Asch and George Derek Musgrove, Chocolate City: A History of Race and Democracy in the Nation’s Capital (2017).
Direct request. You may submit a request to an agency directly in person, by telephone or by FAX or mail 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 ask. The FOIA officers change often; the Office of Open Government list updated March 2024 is available here. Another very outdated 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.
Online portal. An updated online request portal launched in June 2024, operated by a contractor called Granicus and known as GovQA, accepts requests to 66 agencies (of the 80 or taking requests in recent years). There’s no list of the 66, so you must scroll through a drop-down menu to find out if you can reach the one you want via the portal. Uncertain users are offered only a link to the Office of Open Government or a list of about 35 departments and agencies–clearly incomplete–but with further links to more organization charts of DC agencies under the mayor.
And agencies are sometimes confused about FOIA processing. For example, the Board of Ethics and Government Accountability refers FOIA requesters to the portal but it is an independent entity and those are mostly not reachable through the drop-down portal menu of agency addressees.
Agencies not using the portal take requests directly (online, mail, etc.). This is how you have to reach some large independent agencies such as the Housing Authority, Public Library, and the Public Charter School Board that each has its own governing body. The Council and the Office of the Chief Financial Officer also receive requests directly, as outlined on their websites.
This diversity is confusing for requesters, but reflects the fact that the law does not assign any central entity responsibility for defining and enforcing consistent treatment of FOIA across many different kinds of “public bodies” that must comply. Many sections of this guidance advise how requesters may cope with the chaos that has resulted.
After creating a free account, you log in any time in future to file or to check on requests. A page is headed “submit a records request” where you choose the agency and describe the request.
No way to contact a source of help is listed yet, though there was on prior versions of the portal.
Think through your request in advance as you need to describe the request in detail and complete several text boxes. These take time even for repeat players.
The prior portal timed out (ended your access session after a set time) and did not allow saving your work; those dimensions of the new portal are unclear as yet. Text boxes list no character limits yet.
Each agency processes its own requests, submitted via the portal or directly, from receipt to response. Beyond a few parameters in the FOI statute such as deadlines, exemptions and fees, FOIA management is left to agencies. The result is that practice differs in ways that are frustrating and sometimes unlawful. Delays are common (discussed in depth in other sections of this guidance). The mayor’s annual FOIA report shows, for 80 agencies, the variability in basic processing. The report includes facts about 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 in the portal click on “My Records Center” to “View My Requests.” The display includes due date and “status.” Features of the prior portal that frustrated users included the status information (that was rarely updated by agencies) and downloading of records (not available from all agencies).
Also on the new portal is a “Public Records Request Archive” but how it will serve users remains to be seen. The prior portal had a “FOIA Reading Room,” described as containing often-requested records. But agencies posted almost nothing and no central office monitored the inconsistency. The Coalition unsuccessfully proposed for years that this be eliminated but D.C. government left it there with outdated agency names and empty “shelves.”
The records of the 13 Council members, 11 committees, and support offices may be requested under D.C. FOIA. Unlike other states’ laws that have special exemptions 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 (and also ANC records) may not be appealed to the mayor. The only recourse is to sue in D.C. Superior Court.
- 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. Council records may not be requested through the FOIA portal.
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 in 2019 for improper outside activities. And a 20112 Coalition lawsuit settled that a FOIA request can include Council members’ emails on official business even on private devices.
Council members also express concern about FOIA burden, though in fact, theirs is not great. The Council received 32 requests in 2023, and they were handled with modest effort (around 500 staff hours — one quarter of a staffer’s time), according to data included in the mayor’s annual FOIA report.
If you have difficulty with a FOIA request to the Council, we may be able to help; contact the Coalition at info@dcogc.org.
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.
Advisory Neighborhood Commissions (ANCs) are 46 neighborhood-level bodies established in the Home Rule Act, composed of about 350 commissioners elected for two-year terms to represent areas of several thousand residents. These “mini-legislatures” are considered part of the legislative branch and their mission is to lift up neighborhood voices so they receive “great weight” in government agency decisions affecting their areas (construction, business licenses, streets and roads, etc.). Access to their meetings is governed by a separate law (they were exempted when the Open Meetings Act was passed) but their records are considered part of the legislative branch and accessible by requests under the Freedom of Information Act.
The D.C. Council has a central Office of ANCs. For years its director served as the FOIA officer for ANCs. Present FOIA arrangements are not spelled out on the OANC site. And some ANCs have their own websites. We imagine requests may be sent to the ANC chairperson of the relevant district, or to the OANC director at headquarters in the Wilson Building. A March 2024 training video for commissioners, by the Office of Open Government, explains their obligations to comply with FOIA.
Implementing FOIA access to ANC records has been a rocky road owing to rudimentary records management and inconsistent uses of technology by the part-time volunteer commissioners. A few long and costly court cases have resulted, challanging ANC failures to follow FOIA. The Open Government Coalition gave comprehensive Council testimony in 2022 on the need for improvement including adding them to coverage of the Open Meetings Act, strengthening technology for meetings and records, and regularizing FOIA compliance. The Coalition hopes several developments promise better days: a new director began in fall 2022 and the Council added budget for technology and a general counsel position to give ANCs prompt legal help.
The form on the portal offers a text box to write in a description of the records you want. (It shows no character limit but we entered 10,000 without difficulty.) It’s not clear yet if the system times out–cuts you off after a while. To avoid possibly losing your work, 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. Or you can write the description in your computer’s word processor and save it as a file. When you’re ready to do the request form, click on the box “Select File” at the bottom of the form. 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.
- Describe the subject matter of records you seek and the medium involved — letters, emails, memos, text messages, plans, photographs, video, maps, permits, contracts, payment records, data files, spreadsheets.
- If you want video from a police body-worn camera, note there are some rules unique to those FOIA requests–deadlines, exempt contents, etc. (Subjects of a police video have a separate right to see that video, apart from FOIA, with many limits. See here.)
- Give a range of dates to set boundaries on the search.
- 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.
- An agency must look in the electronic file of government emails for search terms (topics, people) you specify. For email, you need not supply exact names or email addresses. If you are told you must, you can contact us at info@dcogc.org. D.C. agency FOIA staff often mistakenly refuse even though the D.C. Court of Appeals has 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 D.C. FOI law requires agencies to respond only to requests that “reasonably describe” the records wanted. But what does that mean? The federal FOIA says the same and D.C. courts follow the extensive federal case law where courts have defined the terms. If an agency denied your request as lacking reasonable description, it’s easy enough to refine or narrow the request in conversation with the agency.
Some states’ public records laws allow barring a very frequent or ill-motivated (“vexatious”) requester, but the law in D.C. does not. Neither the law or the portal set limits on requests from an individual or organization. The D.C. FOIA regulations leave it this way:
“Where the information supplied by the requester is not sufficient to permit the identification and location of the record by the agency without an unreasonable amount of effort, the requester shall be contacted and asked to supplement the request with the necessary information. Every reasonable effort shall be made by the agency to assist in the identification and location of requested records.” D.C. Mun. Regs, Title I, Sec. 402.5.
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” (for example, if a requester submits 100 requests apparently to harass an agency) but there is no such provision in D.C. FOIA.
Your purpose is relevant in only one situation. Only certain users and purposes qualify for fee reduction or waiver (discussed below). For that you will need to explain a noncommercial purpose, how the records will shed light on government and the contribution the specific records will make, and how the requester is equipped to help the broader public make use of the records released. You explain your plans for use of the records in the second text box on the request form on the portal or in your letter. See important details on how to make your case for a fee waiver, below under “discounts or full waiver of FOIA fees.”
The volume of a request is irrelevant. Years ago, the D.C. police union successfully appealed in court when then-Chief Cathy Lanier denied their request for a huge swatch of her emails — just for being enormous. So, unlike some states’ public records laws, there is no limit in D.C. FOIA on “voluminous” requests. (The law does allow a 10-day delay if needed because of the volume of a request.) 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 if it’s clear what you’re looking for. Timing may of course be affected. Very large requests, especially those requiring redaction of personal details, may be released in batches. As was finally agreed in the police litigation, agency response to big requests can take months or even years to finish. And volume directly affects the fee the agency may collect for searching or copying.
If you think an agency incorrectly denied a request saying it’s too big, get in touch with us, info@dcogc.org. As the D.C. Court of Appeals wrote, “there is nothing in the statute that allows a prospective determination of undue burden to void a FOIA request.” Fraternal Order of Police v. D.C., 139 A.3d 853, 863 (D.C. 2016).
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
- research,
- creating new records,
- answers to questions,
- 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 are private at least for very long waiting periods), records of individual charter schools, tax records, and some records of the D.C. Medical Examiner.
Yes. But the agency may ask for proof of identity. Federal law spells this out in detail, separately from FOIA, but there is no D.C. law comparable to the federal Privacy Act of 1974. That law protects your right (upon proper identification) to see records about yourself held by federal agencies and even 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 and there’s no right of correction.
This raises obvious problems — What is enough proof of identity? How can the government keep some records about you confidential? The Coalition and others have urged some clarification of the law to make this easier. But the law is unchanged and the new portal doesn’t yet offer any helpful guidance.
Research on federal FOIA requests shows that a giant fraction come from people seeking their own records, such as immigrants, veterans, or prison inmates who need their file for legal purposes. The D.C. Board of Ethics and Government Accountability in a 2021 report on “Best Practices” urged development of a better D.C. government approach to first-person records access.
The Coalition is an all-volunteer organization and has no office, help desk, or hotline. Even so, we try to answer all inquiries on access to government as best we can. Write info@dcogc.org. There are other sources:
- Government agency FOIA officers can help understand their records, their process for handling requests, and the status of an individual request.
- D.C. Office of Open Government has staff who answer questions and often unstick agency problems, and their website has guidance along with past decisions on complaints.
- An online service that helps people file requests nationwide is Muckrock.
- The D.C. government has a FOIA web page.
- National Freedom of Information Coalition (D.C. Open Government Coalition is a member) has a website with general information.
The agency by law must respond in 15 days not counting weekends and holidays. MPD has 25 days to respond to requests for video from police body-worn cameras.
The 15-day standard has proved difficult in some agencies over the years. Fifty out of 80 agencies got fewer than one FOIA request a week in 2023, but a few agencies are swamped. Police, fire, and buildings together got 5,000 of the 11,000 total in 2023. Staff turnover and shortages are obvious problems, but even so, courts typically 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 2023, over 3,000 requests, over a quarter of the total processed, took 16 or more days (two thirds of those, over 26 days). And 1,500 more were left unprocessed September 30, 2023, after waiting an average of 53 days. At least the suspended deadlines and 3000-request backlogs of the COVID-19 years (2020-2022) are a distant memory.
Unless agency FOIA staff will volunteer a date, no law requires D.C. to give you an estimate how long your request may take (as Congress added to federal FOIA as delays and backlogs have worsened).
The prior portal displayed the “status” of requests filed there, but it was nothing like following a FedEx or Amazon shipment. What the new portal will offer is unknown as yet. Beyond the annual report by the mayor with data only as recent as five months earlier, no dashboard or other updated display shows government-wide FOIA processing data through the year, to suggest “traffic” at the agencies–for example, where there are slowdowns and backlogs. The Coalition’s FOIA requests for such data go unanswered and we have a lawsuit in progress to get the court on the side of FOIA data transparency.
An agency may also send you a notice that it has given itself a 10-day deadline extension. This is allowed by law, though only in special situations — a complex request or a need to consult other agencies. Even if you think the special justification is bogus, it’s not appealable. (The Mayor’s Office of Legal Counsel that handles FOIA appeals takes the position that they are authorized to adjudicate only denials, and that this lawful postponement is not a denial.) The law does require, only in the case of these 10-day extensions, that the agency give an “expected date for determination.” There are no data available on the extent that agencies use this unreviewable option to add 10 days to their response, or whether they meet their own new deadline. On delay generally, see another section of this guidance.
Delay is common — in 2023, a quarter of requests, over 3,000, took 16 or more days. Most of those took 26 days or more. Many requesters ask about enforcing the clear 15-day deadline in the law. Here are tips:
Check with the agency. If you hear nothing, email the agency FOIA officer, Papers may be mislaid, or the request may need simple clarification. The Coalition recently found a delay caused simply because the FOIA officer had not received the request as he lacked the technology to reliably download requests from the portal.
File an appeal. The FOIA law considers non-response to be a denial, so after 15 days without response, you may appeal to the mayor. (See another section here on how to do it.) An appeal often prods the agency into action. Of 464 appeals processed in 2023, 129 (28 per cent) were closed as “moot” meaning without need of any decision and written opinion, simply because the agency responded with action after the appeal was filed.
You can file a lawsuit asking the court to order action. But beware, it can take a long time, and if you are paying for legal help that will get expensive. (Winners can often get their fees paid by the District.) What does a lawsuit look like? For a copy of the complaint that began a lawsuit in June 2021 by The Washington Post, chiefly challenging delays in getting records of the January 6, 2021, Capitol insurrection, see here. See further discussion below about lawsuits challenging agency FOIA actions generally.
Though cases take time, you are assured of the agency’s attention, since every slow step is backed by the unquestioned power of the court. The agency, represented by lawyers from the Office of the D.C. Attorney General, must respond at each court date.
Take note that few cases challenge delay alone. In a half-century of experience overseeing public records cases, all courts know thousands are also waiting. They are not enthusiastic to help the few who have resources to sue to jump the line.
A sound case, such as challenging an inexpert exemption claim, will win the release of the specific request. But the case ends there; courts don’t issue orders to fix broad problems with the FOIA system. And though the law provides for criminal prosecution and fines for FOIA violations by agency officials, it’s never done. Years ago, in a federal FOIA case, the U.S. Court of Appeals for the D.C. Circuit said it this way: “however fitful or delayed the release of information under the FOIA may be … if we are convinced [the government] has, however belatedly, released all nonexempt material, we have no further judicial function to perform under the FOIA.” Perry v. Block, 684 F.2d 121, 125 (D.C. Cir. 1982).
No. 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 sometimes be addressed by checking in first with the agency FOIA officer. Requests get lost or staff can’t figure out what the requester wanted; that kind of problem can be cleared up quickly when you ask.
Yes. Fewer and fewer requests are granted completely — less than half in recent years. Denials in whole or in part (meaning redaction of items or pages) can be for one or more reasons, but only on grounds allowed in the law, and the letter denying your request must cite the specific section(s). Unfortunately, the agency is not required to explain why they think those parts of the law exempt your request. Common reasons are:
No responsive record found or not that agency record. You may have asked for something never in a record, kept in some other agency, lost by fire, flood, or tech problem, or 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 the request somewhere else or even find out where responsive records may be. But staff sometimes know and will be kind enough to tell you–for example, the D.C. Health Care Finance agency 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. (Suggestions for doing so are in the section of this guidance on writing the original request.) Agencies are not required to guess what you want or imagine an acceptable substitute (something maybe almost what you asked). They may simply deny a request that isn’t specific enough to search for and find, or that’s so broad as to yield millions of pages. Clear requests at the outset help avoid this result, and willingness to negotiate if agency FOIA staff seem lost. For a request that went beyond the guardrails — so general that it exceeded agency and court tolerance, see a 2022 federal FOIA case here.
Agency not required to create new records. The law is so clear it’s surprising how many D.C. appeals challenge an agency that denied a request that was not for records but asked the agency to answer questions. Avoid asking for “information about” something, or for a new chart or table displaying existing data.
Interference with electronic records system. The law requires agencies to make “reasonable efforts to search for the records in electronic form or format.” D.C. Code 2-532(a-2). This helps requesters who have skills to use spreadsheets or data files.
But the same section of the FOI law adds an agency escape hatch, that this doesn’t apply “when the efforts would significantly interfere with the operation of the public body’s automated information system.” D.C. denied, for example, a request that would require over eight hours of programming to reformat records. Should that have been tolerable or was it a “significant interference”? The case was settled before the court decided, leaving the question for another day.
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 individual privacy (corporations do not have privacy rights); agency staff often overlook that they must consider whether a stronger public interest in release of the record can override claims of privacy.
- 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. These may be withheld to encourage frank internal discussion of options before any policy or decision is final.
- Other less common reasons. Confidential business information and trade secrets; records covered by “privileges” (legal rules protecting certain communications such as between attorney and client); and records exempted by other laws beyond FOIA. Those include separate D.C.and federal laws governing medical examiner records (autopsies), vital records (births and deaths), individual charter school records, plans for emergencies, some body-worn camera video such as family incidents or from inside homes, and student educational records held in local schools.
If you have questions about a denial, the Coalition may be able at least to help you understand the terse letter you received and what may be behind it. (The federal FOIA Advisory Committee wrote a report this year urging, among other steps to help users, improved letters that would actually explain agency FOIA decisions instead of just announcing them.)
The law describing each exemption is very brief. Requesters’ many lawsuits have required judges to write thousands of opinions deciding what the words mean. Agency FOIA staff often lack training in the resulting complex law, and mistakes slip by supervisors. You shouldn’t hesitate to ask for more explanation if something seems wrong,but the law so far doesn’t require agencies to help you understand what they wrote.
The privacy exemption is cited most often (almost 4,000 times in 2023) so the Coalition has worked especially to correct misinterpretations there. Few D.C. agency FOIA staff understand that public interest can override it. For example, the police department accepts the officers’ union argument that employee privacy shields records of all kinds such as video on the job, investigations of complaints, and discipline history. That means enormous effort of blurring details when releasing video taken in full public view by police body-worn cameras.
The D.C. government has been warned of its unlawful response to video FOIA requests. The Office of Open Government upheld a Coalition complaint about this in November 2020 after reviewing the law requiring balancing of interests and finding officer have no privacy interest strong enough to outweigh public requesters’ interest in observing police conduct on video; just as they could have done in public at the original event. Frame by frame video review takes much time to blur details, which delays release and adds to costs. The D.C. Police Reform Commission in 2021 compared best practices and legal rules elsewhere and also called for less redaction of video releases and release of police officer discipline records also denied on privacy grounds. Legislation to end incorrect privacy exemptions passed the Council in 2022 but is not in effect because the Council has not funded the extreme (and unsupported) costs estimated by MPD. (That story is detailed in a blog post here.) If an MPD FOIA denial seems incorrect, feel free to contact us at info@dcogc.org.
Yes. Covering up some bits of a record is called “redaction.” For example, a record may have a few items of personal data that should not be released to protect personal privacy, law enforcement details such as witness identity or investigation techniques, or confidential business information. But the rest may be releasable. So the law requires release after removing the exempt parts.
Agencies may ignore the segregation obligation and simply deny whole records, because that avoids the tedious search for a few parts to redact. Automated scanning tools trained to find the exempt bits have not been explored by D.C. government though the Coalition has asked repeatedly, especially for use in high-volume agencies.
If records you were denied may have had this mixed character yet were entirely denied, consider an appeal asking the mayor’s office to compare the original and released records to evaluate redactions. (Sizable numbers of the FOIA court cases also challenge over-redaction.) Courts have 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.
There are two ways in the law.
- First, you may appeal to the mayor. The process is very simple. And requires no legal argument on the mistakes you think caused denial, nor any lawyer at all. Plus it’s free and fast (required to be done in ten days).
- Second, you may challenge a denial in a civil lawsuit against D.C. government in D.C. Superior Court. This takes many months and can be expensive ($120 just to file initially and a fee for each later paper filed). FOIA lawsuits are discussed in a separate section below.
Here are details on the mayoral or administrative (non-court) appeal.
“Appeal” is a word suggesting a court and a decision by a judge based on written legal briefs and oral arguments. But appeals of D.C. FOIA denials are different. Instead, it’s a simple procedure where your request for review is handled by staff lawyers in the Mayor’s Office of Legal Counsel (MOLC).
Can they be trusted to be impartial? After all, an appeal challenges a FOIA denial decision made by mayoral appointees. But the law has since the beginning assigned appeals to the mayor, so that is settled for now. (Federal law assigns appeals of agency FOIA actions to the agency itself–even more potential conflict. But there is a federal FOIA 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.)
And the data on appeals decisions in D.C. do show a degree of independence. In 2023, over a quarter of MOLC decisions (28 per cent) overruled the agency denial and sent the request back.
You don’t need to write a lot or show up anywhere. Your appeal (via the portal or in a simple letter) gives your side. An appeal explains the request, any interactions with the agency, and the response you consider unsatisfactory because you believe the agency made some kind of mistake. The MOLC asks the agency for an explanation of what they did searching for records and deciding what to release. This puts the burden on the agency to justify denial and puts the agency reasons on the written record.
Agencies don’t always respond, however. The MOLC warns agencies the appeal will be decided on the file if they do not explain the denial decision. As agency staffs were distracted by the pandemic disruption starting in 2020, they ignored FOIA obligations and MOLC in turn let hundreds of appeals pile up undecided. That seems to have cleared up in 2023 when the MOLC processed 464 appeals and caught up after considerable pressure from the D.C. Council following public outcry and Coalition advocacy.
The mayor’s inquiry to an agency about a denial is often a wake-up call. And that can uncover basic oversights or errors that can be quickly corrected. In recent years 20-30 per cent of appeals were dismissed as “moot” 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.
Appeals are all done on papers, with no need to visit any office to argue what you think the mistake(s) were. The assigned lawyer in the Mayor’s Office of Legal Counsel is a specialist and has seen it all. Such attorneys in each case do a “de novo” or comprehensive review of whether the agency obeyed all relevant parts of the FOIA law.
The simple process and quick response mean someone with a FOIA denial should strongly consider it. Yet surprisingly few requesters take advantage of the opportunity for a second look at any denial. In the last few years, appeals have numbered 230-260, a tiny fraction of the negative results (6,400 of 11,000 requests in 2023 got “no records” or some degree of denial).
If the MOLC agrees with you there was a mistake in a denial, they write an opinion letter to you with a copy to the agency explaining what to do to fix problems, called a “remand.” Such remands are most common in decisions at the agencies that get the most requests, such as MPD (of 90 total MOLC remands in 2023, 40 were to MPD).
Enforcement of appeal decisions is a great disappointment, however. For example, the agency may disagree with the MOLC interpretation of the law. Yet the mayor so far as we know has never intervened to address such a conflict and assure a remand is carried out. And the FOIA statute provides no method of enforcement of the MOLC decisions on appeals. The requester’s options are to appeal again or sue in Superior Court.
Yes, but it’s not easy since many are not available. The Coalition believes the Mayor’s Office of Legal Counsel (MOLC) must publish its FOIA appeal opinions. That’s our reading of the section of the law, DC Code 2-536, requiring every agency that decides cases to publish its opinions so there’s no body of secret law.
The MOLC published opinions in an online searchable database for years but fell behind even before the pandemic. The D.C. government has not posted opinions there since 2018.
The MOLC in May 2024 responded to a citizen’s FOIA request for all opinions since 2019. The FOIA officer explained that those from 2019 and a few 2020 decisions are published (not online in the database but buried inside the D.C. Register, the official weekly legal publication of the D.C. government) and did not provide the rest. More are expected “on a monthly basis until a sizable backlog of unpublished decisions can be resolved,” according to the MOLC official.
The official’s denial offered no estimate when the full range of unpublished decisions will appear in the Register. Opinions are in the form of letters containing addresses that are considered personal information requiring redaction.
The MOLC segment of the mayor’s annual FOIA report for fiscal year 2023 includes brief summaries of last year’s appeal decisions. It’s posted here and the MOLC section begins at p. 206. If you see one described that sounds like a case of yours, the decision is a public record that may be requested by FOIA.
The Coalition earlier complained to the Office of Open Government (OOG) about backlogged MOLC decisions and publication delays. The Office’s 2022 opinion found no reason for publication delays even if volume was down and asked the office to publish each opinion when issued. The OOG opinions, however, are by law only advisory. The Coalition has testified repeatedly asking for stronger direction to the Mayor’s Office of Legal Counsel to improve processing and publication of appeals, but the D.C. Council has so far only included unenforceable language in committee budget reports.
If a FOIA request has been denied and a requester reaches out to the Office of Open Government (OOG), the office has operated as an unofficial FOIA ombudsman. It tries to resolve the matter by working with agency FOIA Officers to make unnecessary either appeal or litigation.
The office has explicit authority to investigate and issue advisory opinions on “implementation” of FOIA. The law does not explain that further. A form to raise an issue and request a review by the Office is here. In practice, the office takes on only complaints that raise a question of broad interest.
This authority is the sole source within the D.C. executive branch for independent review of agency FOIA practice, and even so, the opinions are not binding. The Open Government Coalition has relied on it to gain investigation of many complaints brought by the public concerning agencies’ FOIA processing. Agency cooperation is voluntary, and the Coalition has urged the Council to add subpoena power to the OOG toolkit. The resulting opinions have been helpful in advocacy with the Council and agency leadership. (For example, see blog post here on complaint of non-publication of opinions by Office of Administrative Hearings.)
Since there is no oversight of FOIA management in the executive at present, the Coalition has asked the D.C. Council to amend FOIA to make the Office opinions enforceable. That could bring greater consistency to users’ FOIA experience across D.C. government, but such legislation has not moved.
D. C. provides barebones instructions here (look half-way down the page).
In the new portal, appeal instructions are shown below specific request status information but an “Appeal” button does not yet appear as few requests have been completed since the lanch date in June 2024. Officials have said in Council testimony the new portal will allow submission of appeals as the prior one did.
We expect it will probably work like this: For a request originally submitted at the portal, if you choose to appeal a denial the software will automatically attach your original request and forward the package not only to the mayor but also to the original agency FOIA officer. The requester likely can attach a letter with reasons for questioning the agency results such as:
- no response by the deadline;
- inadequate search;
- mistakes in applying exemptions (often leading to incorrect over-redaction);
- failure to segregate exempt material and release the rest;
- denial of records in requested format.
No legal argument referring to the D.C. law or court cases is required. The mayor’s office looks at the whole record and spots any errors requiring a do-over, whether or not you mentioned them.
Another section in his guidance discusses how to research the law including, for example, what counts as a reasonable search, or what records qualify for law enforcement investigatory records exemption. ,
If you don’t use the portal, you may appeal as follows:
By email to: foia.appeals@dc.gov.
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 (MOLC) assigns an appeal number and in past years has sent the requester a copy of their email to the agency with notice of the appeal and request for explanation of the denial. Such copies have been sent inconsistently in recent years. You also may or may not see the agency response (we can’t explain the inconsistency; we have demanded such explanation letters, under FOIA if withheld, and gotten them belatedly).
Even if you think the agency is wrong in their reply to the MOLC, you don’t get any formal opportunity to reply. Still, nothing stops you writing the Mayor’s Office of Legal Counsel to explain your view. (Remember, in normal times, the whole process is fast–start to finish the appeal is to be completed in 10 days.) The MOLC opinion usually repeats the agency response and discusses its decision to accept or reject it. That helps a requester to evaluate the strength of the agency defense, and thus whether or not to go to court with further challenge. Attorneys from the Office of the Attorney General who will defend D.C. in a FOIA lawsuit frequently discard agency reasoning and make different arguments in court.
Yes, you can sue at any point after receiving an agency denial. A FOIA lawsuit is a regular civil action against the D.C. government in D.C. Superior Court. Unlike some state courts’ rules, D.C. courts have no fast track for FOIA cases. It can take many months to get the court’s decision. Very few FOIA requesters pursue problems in court–only a few cases are filed each year (13 in 2023) and are randomly assigned to judges; as a result, few judges are deep experts.
D.C. FOIA allows you to go straight to court to challenge an agency FOIA denial. That is, unlike rules for federal FOIA requests, you do not need to try an administrative (non-court) appeal to the mayor before filing a lawsuit. An appeal to the mayor is, however, a low-cost method that may yield some strategic information as you consider your options.
Agency denial letters usually give little or no explanation, typically 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 and 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 the initial court papers requires paying a $120 fee (waivable for low-income persons). Cases are filed electronically. All civil non-family matters (FOIA cases plus car wrecks, medical malpractice, business contract disputes, etc.) wait months to get before a judge. Lawyers defending a D.C. agency FOIA denial often quickly file papers asking 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 from the challenger is then needed, opposing the motion to dismiss by showing the court there are issues that need further exploration.
A requester whose complaint survives a motion to dismiss gets a scheduling order, setting a calendar for the further steps in the case. It can extend many months. (Of 33 active cases reported by the attorney general in Fiscal Year 2023, 21 were only a year or two old, the others go back to 2018. More details below.)
Usually the judge will request another round of briefs arguing whether or not the case can end with “summary judgment,” which means without need of a trial. Disputed facts are uncommon in FOIA cases, so many are decided this way and trials are rare.
Trials are rare because facts are usually sorted out early. Agency staff submit sworn statements through the D.C. lawyers about their search and how the law applies (in their opinion). You, as plaintiff challenging the denial, of course present arguments for your side such as why a search was incomplete or exemptions not applied correctly,.
You won’t get to see the 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 have seen them often overstated or plain wrong. Even so, success usually requires a long slog and a skilled attorney to challenge shaky agency facts and educate the court about the law.
Costs are a concern. If you have a strong case, a few private attorneys will take cases without requiring you to pay. They count on getting paid later if they win,. That can happen since the law allows the court to order the D.C. government to pay a winning requester’s attorney’s fees and costs as a kind of penalty to the government for not resolving the matter earlier. The District often contests a fee request, leading to another round of litigation that can add years to the struggle. Though if your fee claim is successful, you can also get “fees on fees” — your attorney is reimbursed for fighting the fee battle as well. A clinic at the George Washington University law school takes FOIA cases.
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 2023 is here (33 cases).
For 2023, the 33 cases active that year included six on appeal. Twenty were filed by organizations and 13 by individuals. A dozen were old, filed in 2020 or earlier. Eight of 33 were closed in the year. The odds of getting some relief by litigation are good: the record shows 18 plaintiffs of the 33 won some relief such as further search, additional production of withheld records, revised and reduced redactions, and payment for their costs and lawyers’ fees for having to sue over the mistakes. D.C. in 2023 litigation paid out $242,700. (And another case decided early in 2024 saw D.C. settling for $400,000 in fees for mistaken denials. See blog post here.)
It may be time for the D.C. attorney general to be more aggressive with D.C. agencies, as is the U.S. Department of Justice with federal agencies. That would mean enforcing some kind of agency risk analysis based on the history of agency decisions overturned in appeals and lawsuits, offering pre-denial help for agencies deciding complex requests, and ultimately declining to defend some cases in trouble-plagued agencies. (MPD is a frequent target: half the 33 lawsuits active in 2023 challenge MPD decisions. Of the 330 appeals to the mayor in 2023 that led to decisions, 200 challenged MPD denials.).
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, but that has been a handful of cases in the Coalition’s years of operation.
There is no charge for using the portal or filing a request any other way.
After processing your request, the agency may charge you for the cost of searching and processing records. Waivers appear to be common, as discussed in another segment of this guidance.
D.C. regulations include a fee schedule. Different levels of staff are charged at different hourly rates, from $16 to $40 per hour.
Copying on paper may be charged at a rate of 25 cents per page. Inspecting records in advance to narrow those you need, or asking for electronic transfer, can help contain costs. Judging from the small income agencies report from FOIA fees, few requesters appear to pay fees; no data on waivers are reported.
Yes, and many requests are successful.
There are two main kinds of fee waivers; some requesters, and some requests, are eligible. 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 fee section. There you may indicate you’re willing to pay and how much, or you may check a box to ask for a waiver. Take care to also explain how your request fits the requirements in the law.
Agency staff in our experience sometimes deny waivers simply saying “insufficient justification.” Attaching a separate document is good, with full discussion of why you qualify. Be of good cheer; most people get waivers. D.C. agencies had costs of $3.7 million to process requests in 2023, but collected only $28,000. So lots of people are getting waivers.
The three kinds of waivers include:
- Media requests – partial waiver. 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 agency FOIA staff have not kept up and think “media” includes only the Times and Post. Federal courts expanded the definition years ago and the federal FOIA rules were broadened in response. But D.C. law is unchanged and staff who don’t grasp the 21st century breadth of media may get it wrong. The Coalition of course believes the more modern definition should be uniformly 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 at info@dcogc.org.
- Educational or non-commercial scientific institution for scholarly or scientific research – partial waiver. These are also eligible for a waiver of fees except for copying, and now include not just teacher requests but also by students. 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-D.C. Circuit Judge Brett Kavanaugh for a unanimous three-judge panel, rejected that interpretation, writing: “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.”
- Requests that are in the public interest – full or partial waiver. 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 with how the subject of the requested records concerns government operations and activities, plus details how:
- 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 no commercial interest in the disclosure (or if some, how the public interest in disclosure is greater than the requester’s commercial interest).
If a fee waiver is denied, you can ask why and offer to provide more information to address the questions, since many agency staff may not interpret the eligibility rules as the Coalition believes the law requires. See another section of this guidance on topics such as student and media eligibility for waiver. D.C. agencies’ FOIA staff may not have all updated rules (or even awareness that many federal court interpretations of similar federal law probably apply).
The full waiver available for requests “in the public interest” is sometimes disputed by D.C. agencies. Conflicting definitions of “public interest” fuel this confusion. The D.C. Office of Open Government issued an advisory opinion, based on federal case law, that a D.C. fee waiver denial used the wrong definition of the key term. The Office held that to qualify for a “public interest” full waiver, the relevant interested public could be a neighborhood. Hence, denying a fee waiver for “lack of citywide interest” was incorrect. But the Office’s opinions do not have the force of law, so D.C. agencies remain free to define the public interest.
No administrative appeal of a fee waiver denial is available, though the Coalition believes that should change.
For years, the Mayor’s Office of Legal Counsel (MOLC) has held that they can’t hear such cases because an agency refusal to waive fees is not a “denial of records.” Why? Because you can still have the records if you pay.
A 2023 D.C. Court of Appeals decision casts doubt on that interpretation. A successful appeal has pried open the door to allow challenges, at least in court, to fee waiver denials. The D.C. Court of Appeals reversed an earlier Superior Court decision that the law left fees to agency discretion and didn’t authorize court review. The new opinion sending the case back for a do-over in Superior Court is DuBose v. D.C., No. 19-CV-1239 (D.C. Court of Appeals, 9/14/23). The case open again in Superior Court is 2018 CA 000378 B. The next court data is August 23, 2024.
The Court of Appeals pointed out, with added italics for emphasis, that authority to hear such cases flows logically from the requirement in law to favor “expansion of public access and the minimization of costs and time delays to persons requesting information.”
The high court dismissed Superior Court Associate Judge Heidi Pasichow’s hesitation over her power to hear arguments about unreasonable waiver denials (she held such lawsuits are nowhere authorized in law).
Even so, wrote the court in confusing double negatives, “that silence” [in the D.C. FOIA law that doesn’t explicitly allow court cases challenging fee waiver denials] “does not in our view constitute clear and convincing evidence of [D.C. Council legislative] intent to bar such review.”
So the courts are open; the Coalition believes the mayor should also acknowledge the 2023 court opinion and allow fee waiver denials to be appealed to the MOLC just as other FOIA denials.
But in any case, it seems almost nobody is paying fees. No data are published on fee waiver denials, but the fees collected are small ($28,000 in 2023, of a total cost of $3.7 million reported by agencies to the mayor for the annual report). So most fee waiver requests must be accepted.
The original purpose of FOIA was to help press and public stay informed on what the government is up to, not so much to help individuals suing over immigration or benefits, or big businesses seeking advantage with inside data on competitors. Since such requests are a big share of the federal system’s 1.2 million requests a year, observers have suggested they should pay more or wait longer?
Thoughtful scholars have great ideas how to change the federal FOIA system that so requests to locate records to help with the public interest in government oversight get the attention the original drafters of the 1966 FOI law intended. See Margaraet B. Kwoka, Saving the Freedom of Information Act (2021).
D.C. gets about 11,000 requests per year, and agencies’ cost estimates have been $3-4 million annually in recent years. That’s mostly the salaries of roughly 35 full-time equivalent FOIA staff. That may be no surprise considering 49 of 81 agencies reporting received 50 or fewer requests in 2023, a rate of one request a week. Only 10 D.C. agencies received 200 or more requests.
If full or partial waiver is unavailable, a FOIA requester can reduce agency charges several ways:
- narrowing the request (fewer people, fewer years, fewer search terms mean less searching or copying),
- asking to inspect the records before any paper copying, or
- asking for the records to be downloadable via the portal or posted electronically to a CD instead of printed out (an “electronic copy” should be provided free).
The D.C. FOIA law is found in the D.C. Code online.
Where the law is unclear, for example where a requester and an agency disagree over what “clearly unwarranted invasion of privacy” means, the D.C. Court of Appeals decides. That happens when a FOIA requester or D.C. agency first asks the Superior Court, and whoever is dissatisfied with the result files a appeal.
Appeals are uncommon (a handful pending as 2023 ended). They take years and require legal help for effective written briefs and argument before a panel of three judges. There have been only a few dozen opinions on D.C. FOIA appeals since the law’s inception.
Interpretation doesn’t always require a new decision. D.C. and federal FOI statutes have many similar parts so the courts here rely on federal court opinions that have clarified the federal FOIA text like ours.
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.
Here are some resources for research on the law, and also on D.C. practice in carrying it out:
- A “FOIA wiki” like the online encyclopedia Wikipedia discusses every aspect of the federal law in depth. It 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.
- Facts about D.C. FOIA processing are in an annual report by the mayor. The report is required by D.C. law, unlike in many states that have no central reporting on public records requests across state, county, local, and special purpose government units covered by a general access law. Details are provided on FOIA processing by each of 80 District “public bodies” covered by the law, including departments, independent agencies and the Council. Data show the request volume, backlogs at start and end of year, timeliness of processing, requests granted and denied in whole or part, exemptions claimed, staff time spent and dollar costs. The mayor’s report includes a separate report from the Mayor’s Office of Legal Counsel on administrative appeals each year, with brief summaries of cases decided. The Attorney General submits a separate FOIA litigation report to the Council with information on each case in the D.C. courts during the year. These data together can paint a picture of an agency that concerns you (processing history, appeals and litigation). None of the reports have analysis or recommendations.
- The D.C. Council oversees government through 11 committees, each with specific assigned agencies. Hearings in the first half of each year cover past performance and future budget requests. FOIA is not a subject in those hearings, however. There is no budget and no office is responsible for system performance. Thus unlike some states that assign records access to a legislative committee (see here for Washington) or even an independent body (Connecticut Freedom of Information Commission), FOIA performance in D.C. is rarely reviewed either in general, or at specific agency levels Coalition advocacy has led to some attention in committees’ annual budget reports, usually covered in blog posts searchable on the Coalition website.
- The Office of Open Government staff is knowledgeable and as responsive as their limited resources permit. They have no formal charge to be a FOIA ombudsman, as the federal office called OGIS does, but in our experience they try to help with issues requesters have with D.C. FOIA matters. The Office does not report generally on FOIA. It addresses FOIA along with the Open Meetings Act (where it has assigned enforcement authority) in its segment of the Board of Ethics and Government Accountability annual best practices report. That report for 2023 is here.
- For any questions, our email address is info@dcogc.org.
Disclaimer
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 June 2024 and correct to the best of our knowledge. Questions, additions, and corrections are welcome (send to info@dcogc.org).
Material in this section, or elsewhere on the website, is intended for general background information only. It is not intended as legal advice applicable to any particular situation. Before taking any action on a matter, whether based on this website or other general discussion of law, you should discuss the facts and seek advice from an attorney qualified to practice in the District of Columbia.
