Is there access to records of all parts of D.C. government?
No. The Freedom of Information Act (FOIA) passed originally in 1976 to apply to records of only the D.C. executive branch. It was extended in 2001 to cover records of the legislature, the D.C. Council. Court records are not included.
Records of some cases in recent years in parts of D.C. Superior Court are available online; more are available at courthouse terminals. Court of Appeals records are not online except the docket (a chronological list of actions in a case) and some final opinions. Details here.
No federal agency records are covered by the D.C. FOIA, so even some agencies with significant activity here (U.S. Attorney for DC, U.S. Park Police, U.S. Marshals Service, U.S. Parole Commission) are subject only to federal FOIA.
Records produced or collected pursuant to a contract by a D.C. agency with a private firm to perform a public function are covered. Make a request as usual to the agency responsible for the contractor, as the law requires them to release records just the same as agency records. Contract documents (solicitation, bids award records) may have to be requested from the Office of Contracting and Procurement. The law requires some details of contracts $100,000 and over to be posted; see here.
How do I request a record?
Each D.C. government agency processes requests for its own records. But there is a central intake; you can submit a request at an online portal that connects to most D.C. agencies (and explains how to reach those not on the portal). Your request will be acknowledged by email and assigned a tracking number. The portal keeps a list of your requests and shows limited information about their status (such as “in process”).
You can also send a request directly the FOIA officer in the relevant agency or contact the person later with questions. The website of each agency has a tab marked “Open Government and FOIA” that usually lists the officer with phone number and email address. A list of all agency FOIA officers is also on the Office of Open Government site, but as these officials change often the list is hard to keep current.
How do I describe what I want?
The D.C. government-wide online request portal requires you to name the agency that has the records you want. You can call FOIA officers in advance and ask if they have what you seek–names are on each agency’s “Open Government and FOIA” web page that should be reachable from the agency home page.
Be as specific as possible — do you want letters, emails, memos, plans, pictures, permits, contracts, payment records, data files, spreadsheets? A record can be in any medium. The portal form requires a date range. Give names of people who may have or know about the records you seek. Emails must be searched even if you don’t know names.
The law requires agencies to respond only to requests that “reasonably describe” the records. There is a library of federal FOIA court cases fighting over what this means, b ut no in D.C. Agencies have used this requirement occasionally to reject confusing and vague requests but it’s easy enough to refine the request and try again.
You don’t need to explain your reason for a request (though you’ll be asked to explain the use of the records if you request a public interest fee waiver). The scale of the request (small, medium or large numbers of pages or files) is irrelevant though very large requests may be released in segments that can drag on a long time.
Can I get records about myself?
Yes. But the agency may ask for proof of identity. Note there is no separate D.C. law comparable to the federal Privacy Act that spells out a separate right to see, or add a correction to, records about you held in a government agency. A request for your own record is under FOIA like any other, so exemptions may apply.
Can I get help with a request?
The 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 the Freedom of the Press has an online request generator. The D.C. government has a FOIA web page.
The Coalition tries to answer all questions as best we can. Write email@example.com.
How soon will I get an answer?
The law says 15 working days. The agency may have a 10-day extension (for example, for complex requests or a need to consult other agencies). But delays are common; in 2019, over a quarter of requests exceeded the 15-day limit.
Many requesters ask about enforcing the deadline, but there is no effective way. If you hear nothing, you may appeal to the mayor (see below) and that often prods a slow-moving agency into action. In 2019 55 appeals were closed without need of any opinion, simply because the agency responded after the appeal was filed.
My request is important; can I get a quick answer?
Unlike the federal FOIA system, D.C. law does not include a special track for expedited treatment of a request. If you experience delay, it’s always good to check in first at the agency by contacting the FOIA Officer with the request number to find out what’s happening. Sometimes, requests get lost or staff can’t figure out what the requester wanted; these can get cleared up quickly when you ask.
Can an agency deny my request?
Yes. Only 44 percent of requests in 2019 were granted in whole. Denials can be for many reasons.
- Records not reasonably described. The law says a request must “reasonably describe” what’s wanted. Agencies are not required to guess what you want or give you what they hope is the next best record, so an imprecise request may be denied. Clear and specific requests at the outset help avoid this result, or negotiations if you encounter a delay. One problem with the request portal is limited space in text boxes to describe the request. Easy answer: attach more pages.
- Agency not required to create new records. Quote a few denials are upheld because an agency declined a request to create a new record. So don’t phrase your request in the form of asking for “information about” something, or answers to questions, or for new charts or tables displaying existing data. In other words, ask just records you believe the government has.
- Records exempt by law. The D.C. law includes 19 exemptions, many similar to those in the federal FOIA. Records most commonly exempted have personal information whose release would be a clearly unwarranted invasion of privacy. A public interest in release of private information can sometimes override. Law enforcement records are the next most common exemption, if their release could affect investigations or court proceedings, reveal informants or secret techniques, or invade privacy. Agency records that are back-and-forth among staff before any policy or decision is final are also commonly exempted.
If you have questions about a denial based on an exemption, the Coalition may be able to advise you. The law of exemptions is complicated, especially because hundreds of court cases have spelled out what the brief words in the statutes say. Agency staff make mistakes, so don’t hesitate to speak up if something seems wrong.
The Coalition believes privacy exemptions, especially, are overused by D.C. agencies and lead to unnecessary redactions such as on release of video from police body-worn cameras.
Can an agency deny some parts and release the rest of a record?
Yes. For example, a record may have a few bits of personal data but the rest is not personal. The law requires “segregation” of those exempt chapters, pages or bits and release of the rest. Also known as “redaction,” meaning covering up some words or details on a page.
What can I do about delay or denial?
The easier of two routes is to appeal. By law, the Mayor’s Office of Legal Counsel must review an appeal of delay or denial. The other route is to bring va civil lawsuitv in D,.C. Superior Court. This is long and costly; see below.
How do appeals work, generally?
“Appeal” is a word associated with courts, but with regard to D.C. FOIA this is a process of review by lawyers in the mayor’s office–independent from agencies. No detailed legal argument is needed, no representation by counsel, no fee, and fast (10-day) response make this a go-to proposition that surprisingly few take advantage of. Only 240 of 2,600 full and partial denials were appealed in 2019. Staff shortages in recent months (early 2020) have caused delays in issuing opinions.
Many appeals serve as a spur to the agencies to make a delayed decision or review other decisions about search, exemption or redaction. As a result, of 240 appeals filed in 2019, 88 never needed to be decided as the agency took action on its own. MPD got the most appeals, 70; all other agencies a dozen or less. In decided appeals, the mayor’s office has been generally even-handed. The opinions about half the time reverse the agency in whole or part and send it back for a do-over. Unfortunately, if the agency doesn’t respond there is no formal enforcement process.
Opinions on past appeals are in a searchable database online.
The Office of Open Government can issue advisory opinions on FOIA matters which could be a useful independent source of review, but the office lacks enforcement authority. Even so, the Coalition has had some success getting broad opinions about agency policy (not individual request decisions) that have been influential. Details about how to request this review by the Office are here.
Note the regular administrative appeal process described above (by the Mayor’s Office of Legal Counsel) will not consider appeals of FOIA decisions by the D.C. Council. The only way to challenge such a denial is in D.C. Superior Court.
What do I say in an appeal?
Include your request, correspondence, and any records released.
An appeal letter may suggest reasons for questioning the agency results. For example, excessive delay, inadequate search, improper application of exemptions, failure to segregate exempt material and release the rest. But a detailed argument with citations to the law or court opinions is not required. The mayor’s office reviews whether an agency response followed all the rules that apply.
Where do I send an 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.
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 (see above). The heavier lift is to go to court — to sue the D.C. government in D.C. Superior Court. As there is no special treatment of FOIA cases it can take many months to get a decision. It is not necessary for filing a lawsuit to first use the statute’s other appeal process (to the mayor).
Filing costs $120 and the case will await scheduling for several months. When the case gets going, the argument will probably be mostly over who is right about how the law should apply to your case. The agency can show records secretly to the judge for her decision. D.C. judges are reasonably skeptical of agency claims since they are often wrong, but even so, success usually requires both a skilled attorney and a long slog. If the agency loses, the law allows the court to require the government to pay your attorney’s fees, but those are often contested in another round of drawn-out litigation.
The attorney general defends District 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 2019 (October 2018 through September 2019) is here. It shows 25 active cases. The majority were filed in 2017 and 2018, so you can see it takes a while. One is from 2013 where D.C. lost a case seeking ANC commissioners’ emails from private accounts and they’re still fighting over a $66,000 award of attorneys’ fees for the long legal battle. Half are pending. Of the cases with some result, the District lost or settled more often than it won and was assessed over $102,000 in legal fees and costs.
Will the Coalition represent me in a FOIA 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.
Will D.C. charge a fee for my request?
There is no charge for filing a request.
Agencies may charge for searching, reviewing and copying records (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 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. Copying is $0.25 per page. If your request turns up a big stack of records you can keep copying charges down by asking to “inspect” the responsive records first and copying only those of interest. The law allows this.
What about discounts or fee waivers?
There are two main kinds, one based on the requester, one based on the nature of the request. Check the box on the request form on the portal and add text to show your reasons.
- Media requests. These are eligible for waiver of fees except for copying. The definition of qualifying “media” can be troublesome if a D.C. agency hasn’t kept up and thinks it means only The Washington Post. Federal courts redefined it years ago and the federal law was 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.
- Requests from an educational or non-commercial scientific institution for scholarly or scientific research. Also eligible for a waiver of fees except for copying. This language, in federal and D.C. FOIA, has long been interpreted to include teachers at all levels and in 2016 was broadened to include students. The U.S. Court of Appeals for the D.C. Circuit overturned a longstanding view in the 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 2016 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.”
- Requests that are in the public interest. Requests where the information will primarily benefit the general public are also 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): how the subject of the request concerns the operations or activities of the government (not just private or personal business); how the records are likely to contribute to public understanding of government operations or activities and the significance of that contribution (your ability to actually make use of the records to benefit the public); that you have no commercial interest in the request and so the public interest predominates.
What can I do if my fee waiver request is denied?
Waivers are evidently common. No data are published on fee waiver denials, but the actual amounts of fees collected are tiny ($121,000 in 2019, out of $3 million in estimated costs of staff time spent on FOIA).
If a fee waiver is denied, you can cut costs by narrowing the request (for less searching or copying) ask to inspect the records before any copying, or ask for the records to be downloaded or copied to a CD instead of printed out.
The mayor;s lawyers say the law does not allow them to review appeals of fees and fee waiver denials (on a theory they are authorized to review appeals only where access is completely denied). This is an interpretation of law the Coalition disagrees with but again we have had no success with FOIA update bills in the D.C. Council.
Whether to sue to challenge denials of fee waivers for requests in the public interest is a frequent subject of questions to the Coalition. One judge has ruled that’s not possible. In a 2019 ruling, Superior Court Associate Judge Heidi Pasichow held that the FOI law is written in such a way that the court lacks authority to review waiver denials. Lower court opinions like hers are not binding but this wasn’t just out of thin air — it rested on some other D.C. Court of Appeals rulings about how to interpret permissive language (like “may”) in a law.
The court 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. The court next found it crucial that the law does not say “shall” (as in 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 and even deny a waiver that it find is made in the public interest.
The September opinion also upheld the reasonableness of a $9,000 fee the agency proposed to charge.
The case is Dubose v. D.C., No. 2018 CA 378 B. Dr. Tormell Dubose, a D.C. dentist, requested D.C. Health department records about his practice to help him in connection with a conflict with the licensing board. He appealed both the waiver denial and the reasonableness of the proposed fee. Case No. 19-CV-1239.
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 (they take several years and require legal help for legal briefs and oral argument, so they are expensive) and there are only a few dozen opinions on D.C. FOIA appeals since the law’s inception in 1977. But where D.C. and federal FOI law are similar, the courts here rely on federal court opinions. That provides a lot of research material for anyone puzzling out 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;
- the D.C. mayor reports annually 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, and exemptions claimed. Also reported are details of several hundred administrative appeals each year, with brief summaries of the issues involved. These data may show you an agency that concerns you has a history of delay or being upheld or reversed on appeal. For example, in 2019 there were 175 appeals decided. Requesters most often challenged MPD decisions. Opinions were in favor of the requester half the time, ordering the agency to take further action because of mistakes. The most common losing appeals were challenges that an agency didn’t search thoroughly, or to withholding based on privacy. The mayor’s reports are here, on a web page “Annual Reports” on the website of the D.C. Office of the Secretary.