Latest update: February 2022
Is there access to records of all parts of D.C. government?
No. The D.C. Council passed the Freedom of Information Act (FOIA) in 1976 to apply to records of only the D.C. executive branch. About 80 agencies process FOIA requests. The Council extended the law in 2001 to allow requests for its own records.
Government funds often purchase services via contract that you may want to know about. FOIA extends to records produced or collected in that connection where an outside contractor is performing a public function. Make a request as usual to the agency responsible for the contractor; the law requires it to release records from a contract just the same as agency records. Some documents from the early stage (solicitation, bids, award records) may have to be requested from the Office of Contracting and Procurement that handles business details for many agencies, though not all.
The law requires some details of contracts costing $100,000 and over to be posted online without need of request. But the data elements are skimpy; FOIA request is still necessary to see bid and contract details. Confidential business information may be redacted. But before using FOIA, see the database of available contract and purchase order information available here.
What other laws provide access to some other kinds of D.C. records I might want?
- Open meetings and open data.
- Meeting records must be available for public bodies covered by the Open Meetings Act. See the access to meetings section of this website.
- D.C. government agency databases also must be evaluated and made public on a government-wide portal if they have no confidential details. “Open data” access is discussed in another section of this website. Evaluation has been inconsistent; some data not available on the data portal may be available under FOIA.
- Court records are not accessible by FOIA. Records of some cases since 2016 in parts of D.C. Superior Court are available from a court records system online. Older cases are still public records though paper files are retired and stored offsite. Digital files remain available at terminals in the clerks’ offices at the Moultrie Courthouse, 500 Indiana Ave., N.W. Court of Appeals records must also be available to the public at the courthouse, 430 E St., N.W., but only a few excerpts are online. Those (for now) are the docket (a chronological list of actions in a case) and some final opinions. Details here. More access is promised but not yet delivered: the Court of Appeals in June 2021 announced a pilot project to put some case files online, but without a schedule or any other details. See here.
- Federal agency records are not obtainable through the D.C. FOIA. For records of some federal agencies with significant activity affecting residents here, a request to the agency following federal FOIA rules is needed. That includes the U.S. Attorney for D.C., U.S. Park Police, U.S. Marshals Service, Court Services and Offender Supervision Agency, Bureau of Prisons, and U.S. Parole Commission.
- Airport and transit records are available from the respective agencies, Metropolitan Washington Airports Authority and Washington Metropolitan Area Transit Authority (or METRO). These are independent bodies and not covered by federal, state or D.C. public records laws. But both have created their own rules covering requests, deadlines, exemptions, appeals and court enforcement. For records of the Reagan and Dulles airports and the Dulles Toll Road operated by the airports authority, see here. For METRO records (bus, rail, transit police), see here.
- Records required to be available online. Not a pretty picture. The federal FOIA statute in section (a)(2) for thirty years required agencies to make available three kinds of information (final opinions and orders, policy statements, and staff manuals), typically in “reading rooms.” FOIA requests of general interest were added in 1996 amendments, known as the “E-FOIA Amendments” as they also required electronic rather than physical access, via online posting. Repeated GAO and outside reviews have noted problems with federal agency compliance. Federal agencies began to face new transparency goals far beyond those in (a)(2) since the President’s FOIA Memorandum of January 21, 2009, available at: https://www.justice.gov/sites/default/files/oip/legacy/2014/07/23/foia-memorandum.pdf, and the Attorney General’s FOIA Guidelines issued in March 2009 that urged federal agencies to post all kinds of records of interest to the public. And an update of the DC law 20 years ago required agencies to post online 12 kinds of records. So the law now requires each D.C. agency to publish its staff, rules, spending, opinions in cases decided in the agency, and more. Unfortunately, the requirement has not worked. Most D.C. agencies ignore the law and there is no enforcement within the D.C. executive branch. The Coalition for years audited the agency publication compliance–see for example 2010 here and 2016 here. But we stopped since the results were consistently awful. And we got opinions from the Office of Open Government finding non-publication to be a violation of law. But neither executive nor Council has been interested in pushing an expensive fix (for DCRA to publish just one of the required types of records, in their case, building permits, required special appropriation of millions of dollars). A court decision in July 2021 for the first time ordered compliance in one instance (certain records in the mayor’s office showing agency budget requests). Since the implications are vast, the District executive branch has aggressively challenged the decision to overturn it on appeal, including a claim the law is beyond the powers of the Council. The Open Government Coalition (joined by five other groups) has filed an amicus brief supporting the law. The mayor’s appeal will be argued in September 2022. Thus whether the court decision will take effect and reverse agencies’ longstanding noncompliance remains to be seen. On the case, see latest blog post here. And the Council in 2022 has turned up the heat on several agencies that have failed to publish, including Office of Administrative Hearings that has a 20-year backlog of unpublished case opinions.
- Historical records. 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., 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 Coalition has joined in recent years with Friends of the DC Archives to assist in their long-standing advocacy for a proper archives facility. The administration of Mayor Vincent Gray (2011-2014) proposed $34 million and the Council agreed. The Secretary of the District under successor, Mayor Muriel Bowser, said in 2015 it was a mayoral “priority,” but after some early planning little happened.
- For the resent state of scattered holdings, see a finding guide, developed in spring 2022 by the Coalition and community colleagues familiar with records of the history of Washington, D.C.
- In brief: older government records of the District are archived at various places with various rules of access. They are not well-described in up-to-date accessible sources. Besides the new guide, one older exception is the website created by the DC Africana Archives Project which concluded in 2017, listing records in many different archives. During this project, 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 Carnegie Library (Apple Store building) in Mt. Vernon Square, N.W., and the D.C. Public Library (see 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 the 13-member legislature, called the D.C. Council, and the hyper-local Advisory Neighborhood Commissions. Previously, the President appointed commissioners who governed the District with much oversight 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 archives 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.
- Walter Fauntroy, D.C. Delegate in Congress, 1971-91, gave his papers to George Washington University.
- Papers of the D.C. Council would include records of members and the legislature generally. We also don’t know much about these. 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.
- Older files from some government agencies are in archives each maintains according to rules of the Office of the Secretary of the District for what should be kept. Control of the records remains with agencies and access is through them. Good luck finding them. Making sure the right stuff is kept and that researchers have ready access is an enduring challenge as the archives and records management work is huge and the staff, part of the Office of the Secretary of the District, is small. That unit, called the Public Records Center, is described here.
- A D.C. archives building holds some government records. It’s located at 1300 Naylor Court, N.W., and staffed by the Office of the Secretary to be open for limited hours. See 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 new archives building has been under development for many years but with accelerating progress now that a site is chosen, on the campus of UDC at Van Ness St. and Connecticut Ave., N.W. Opening depends on uncertainties of planning, funding and construction. A timeline in a recent (4/22) proposal by architects to the District showed over 200 months of work for design and construction. An August 2022 update is in a blog post here. An Archives Advisory Group established as an initiative of the D.C Council Chairman, Phil Mendelson, monitors the new developments and reports to the Council. Notice of their public meetings is on Twitter, @DCArchivesGroup. Attend virtually at www.bit.ly/AAGMeeting.
- Old records of the D.C. Court System take up a considerable amount of space at Naylor Court as well, but access is only via the courts. Before Home Rule, courts in the District were part of the federal system, so those records are held by the National Archives.
- 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).
- The Coalition has advocated for a strong archives program for the District so that “open government” means open history as well.
How do I request a record of a D.C. agency ?
Direct request. You may submit a request to an agency directly by sending it to the agency FOIA officer. Each agency is required by law to have a FOIA officer and that individual should accept a request from any person or organization regardless of how it’s sent. (For accuracy, writing is best.) Look for the officer’s name, telephone number, and addresses for mail, email and FAX on a page required to be on each D.C. government agency website headed “Open Government and FOIA.”
If you’re not sure which agency should receive your request, contact the likely FOIA officer and discuss whether the agency may have the records you’re looking for. The FOIA officers change often; the Office of Open Government list updated January 2021 is available here. Another undated D.C. government list linking to some agency web pages is here.
If you write, mark the outside of the envelope or the subject line of the fax or email: “Freedom of Information Act Request” or “FOIA Request.” Include a daytime telephone number, email address or mailing address in your request letter so that the FOIA officer may contact you if necessary.
Portal. You may submit also through an online portal that accepts requests for about 60 of the 80 agencies that process FOIA requests. There’s no list; you have to scroll through a drop-down menu to find out if the agency you want is among the 60.
After creating a free account, you will log in to manage requests new and old. When you’re ready, go to a page headed “submit a FOIA request” where you will fill in 20 elements of needed information and choose the agency to send it to. The web interface is a decade old and little changed. The software was already developed, chiefly to serve federal agencies, when DC contracted for it in 2014. In the opinion of many users, it is poorly designed by modern standards of graphic design, web user experience and even just plain English. It lacks explanations of key terms such as fee waiver and has obscure details applicable to few such as how to request Inspector General records or show consent of someone else for you to get their records. A “Help” tab on the home page leads to an ironic exhibit of unhelpful content.
Meanwhile, despite the software weaknesses, there is a useful help desk available by email to FOIA System Technical Support, FOIA.Support@dc.gov or by telephone at 202-478-5838.
To complete your request on the portal it is helpful to think it through in advance. You’ll need to describe the request in detail and complete several text boxes, fill-ins and check-offs. These take time even for repeat players. If you dawdle, the system kicks an inactive user off after 30 minutes and doesn’t save incomplete work. Beware! You can see why it helps to draft the description of your request before logging in.
The Coalition has presented testimony on needed improvements (blog on 2019 hearing here) and gained some, but D.C. officials have stonewalled and refused requests to replace the current portal. There are many new software systems available since vendors and nonprofits have grown to serve states and cities that all face the same issues of efficiently managing public records requests. Next-generation solutions could better serve users and the government.
There is no list of agencies not accessible via the FOIA portal. From website information for the agency, find the contact information for the FOIA officer and submit directly. This is how you have to reach some large independent agencies such as the Housing Authority and the Public Charter School Board that have their own governing board and are not in the mayor’s cabinet.
Confusion remains: for example, the Board of Ethics and Government Accountability refers FOIA requesters to the portal but it is an independent board so is not listed as an accessible agency in the drop-down portal menu of agency addressees. These are D.C. agencies whose records are, by law, required to be available under FOIA. If you have difficulty finding the likely holder of records you want, contact us at firstname.lastname@example.org.
Each agency processes its requests, submitted via the portal or directly, from receipt to response. No office oversees or standardizes FOIA management. The result is that practice differs in ways that are completely unknown to the public. The mayor’s annual FOIA report shows, for 80 agencies, the variability in basic processing facts from the prior fiscal year. Data includes agency backlog starting a year, new requests received, number granted and rejected, exemptions claimed, processing time and backlog remaining, staff time and cost and fees collected. These reports are due each year, with data from the prior fiscal year, on February 1 but are usually late.
Each request submitted to the portal is automatically assigned a tracking number; registered users can see all their requests (and appeals) when clicking on “request status.” The status labels include “received” and “closed” but with little fine-grained information in between. For example, the portal will display for months the news that a request is “in process.” The portal has a “dropbox” feature. When an agency has records responsive to your request it can post them to your portal account.
The FOIA portal also has an electronic “reading room” supposedly containing often-requested records. But it is not useful because agencies post almost nothing there. The Coalition has unsuccessfully proposed for years that this be dropped.
How do I request records of the D.C. Council?
The legislative branch of D.C. government is called the D.C. Council (never “city council”). The records of the individual Council members and the work of committees or other offices may be requested under D.C. FOIA. Unlike other states’ laws greatly limiting access to legislative records, D.C. FOIA law has no separate treatment for requests to the Council. They are to be processed (search, deadlines, exemptions, etc.) like requests to any other public body. Two exceptions are:
- A denial of Council records may not be appealed to the mayor. The only recourse is to sue in D.C. Superior Court.
- Council records are not requested through the FOIA portal. Requests are submitted directly to the Council’s FOIA officers in the Office of General Counsel. Address and the Council FOIA process are on their website here.
Elected legislators everywhere are especially concerned about records of who they meet with and politically sensitive deliberations that could be revealed in emails, texts, letters, memos, or any other writings. The Post had to sue to get even office calendars of Council member Jack Evans (D-Ward 2) when he was under scrutiny for improper outside activities. The Coalition noted in 2019 a trend in which Council lawyers were rejecting more requests — the percentage granted in whole or part had dropped from 79 to 63 percent (back up to 82 percent in FY 20) — and unsuccessfully experimenting with new denial strategies:
- declining in 2012 to search for records of official business on Council members’ private email accounts (which drew a lawsuit from the Coalition that was settled after the Council promised in 2013 to cease the denials and to at least request that members search such accounts in future);
- declining to search for some member records on a theory they were protected by a segment of D.C. Code allowing members to be free of “questioning” about anything said in “speech and debate” (which also drew a citizen lawsuit in which the Coalition played a supporting role that resulted in the Court of Appeals telling the Council in 2016 their claimed exemption was just wrong);
- slipping amendments quietly into the FOI law in unpublicized budget legislation in May 2019 to narrow the breadth of records available and tighten request details (later withdrawn after public concern that the sweeping ideas that would change the law government-wide had not been aired in hearings and could have deeply troubling effects).
Council members express concern about FOIA burden, though in fact, theirs is not great. The Council reports receiving one or two requests a week in recent years, and processed with less than a half-time staff effort, according to their data included in the mayor’s annual FOIA reports. Commenting on the FOIA amendments offered in 2019, Council Chairman Phil Mendelson at the time said (according to press reports), “The number of requests that the Council has received, and I think we’re seeing this in other agencies, has increased exponentially over the last year and the amount of money the Council is spending to process FOIA requests—and the government as well—has increased substantially.” He did not cite evidence.
If you have difficulty with a FOIA request to the Council, we may be able to help; contact the Coalition at email@example.com.
Because of a change in the Council email system, electronic mail before 2012 is no longer accessible, according to a Council response denying a May 2020 request for email about events in 2009-10.
Advisory Neighborhood Commissions (ANCs) are 40 neighborhood-level bodies established in the Home Rule Act, composed of commissioners elected to represent areas of several thousand residents. They 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 and permits, 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 accessible by requests under the Freedom of Information Act. Implementing that access has been a rocky road owing to rudimentary records management and inconsistent uses of technology across the 40 individual commissions. Long and costly litigation has resulted from a few ANCs’ failure to follow FOIA. An Office of ANCs is established as part of the D.C. Council and its staff assist ANCs in all aspects of their work including with FOIA obligations. The Open Government Coalition gave comprehensive Council testimony in 2022 on the need for improvement including applying the Open Meetings Act, strengthening technology for meetings and records, and regularizing FOIA compliance. Hopes rest on a new director of the Office of ANCs expected to be chosen in 2022, and a strategic plan being pushed by Council member Robert White Jr., chair of the Government Operations & Facilities Committee of the D.C. Council.
How do I describe records I want?
The request form on the portal offers a text box to describe the records you are requesting. It has room for only 3000 characters including spaces, or 430-750 words. If a page or two are enough, draft the description offline, then when you’re ready to log in to do the request form, copy and paste it into the text box. If more space would be useful, with moderate computer familiarity you can write the description in your computer’s word processor and save it. When you’re ready to do the whole form, click on the box “Add attachment” next to “description document.” A window will open inviting you to browse your computer memory to find the saved file and click on it. It will be imported to the FOIA request form and be sent in when you submit the whole completed form.
- Be specific.
- The form asks you to check off from a limited menu the media you seek–audio, documents, email, database/spreadsheet, or video. But you can be more specific–do you want the search to include letters, emails, memos, text messages, plans, photographs, video, maps, permits, contracts, payment records, data files, spreadsheets?
- Give a range of dates to set boundaries on the search (required on the portal form).
- Give names of people who may have or know about the records you seek, or a link to a news report that stimulated your request, such as an official’s statement.
- Emails must be searched even if you don’t know exact names or email addresses of relevant staff. If you are told you must supply them, push back and contact us at firstname.lastname@example.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 law requires agencies to respond only to requests that “reasonably describe” the records wanted. There are many pages of federal court opinions sorting out what “reasonable description” means. The federal FOIA says the same and D.C. courts follow federal case law where D.C. laws are comparable. If an agency uses this requirement to reject your request, it’s easy enough to refine the request and try again. There are no other “wrong” requests. Some states’ public records laws allow barring a 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). So you need to explain your plans for use of the records if you request a public interest fee waiver, in the second text box on the request form on the portal or in your letter. 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 asked for all emails of then-Chief Cathy Lanier and the agency unsuccessfully objected that large numbers alone made the requests unreasonable. But unlike some states’ public records laws, there is no limit in D.C. FOIA on “voluminous” requests. (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. 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, email@example.com. 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
- answers to questions,
- transformations of existing data (making a table out of a spreadsheet),
- forwarding your request if the agency doesn’t have what you requested,
- records prohibited by other law, for example, D.C. vital records (birth and death certificates 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. (The last is subject of legislative discussion in 2021-22. See here.)
Can I request records about myself?
Yes. But the agency may ask for proof of identity. A check-box on the request form on the portal asks if you are submitting any such proofs. There is no separate D.C. law comparable to the federal law called the Privacy Act of 1974. That law spells out your right to see records about yourself held by federal agencies and allows you to add a correction if you find a mistake. In D.C., a request for your own record is under FOIA like any other, so exemptions may apply. The problems are well-known, so maybe there will be some movement to make this easier. (Research on federal FOIA requests shows that a giant fraction of all requests are from people seeking their own records, for example half are from immigrants who need their file for court purposes.) The D.C. Board of Ethics and Government Accountability in a December 31, 2021, report on “Best Practices” urged development of a better way to get your own records held by the government.
Can I get help with a request?
The Coalition is an all-volunteer organization and has no formal, staffed help desk or hotline. Even so, we try to answer all questions as best we can. Write firstname.lastname@example.org. There are other sources:
- D.C. Office of Open Government has informative web pages and staff can answer questions and sometimes unstick agency problems.
- An online service that helps people file requests nationwide is Muckrock.
- The Reporters Committee for Freedom of the Press has an online request generator.
- The D.C. government has a FOIA web page.
How soon will I get an answer?
The law includes deadlines for processing: an agency must respond in 15 days (not counting weekends and holidays), 25 days for video from police body-worn cameras.
The 15-day standard has proved difficult over the years. Most agencies receive relatively few requests so assign few staff and little specialized technology for FOIA work. A few agencies have heavy FOIA loads (three get over 1,000 requests a year, police, consumer, and fire–together a third of the 10,000 total in recent years). But even there, courts would decline a lawsuit seeking an order to the executive to spend money to speed up FOIA processing to meet the statutory deadline.
The practical result is that many requests are delayed:
- In 2019, almost 3,000 requests, or over a quarter of the total, took 16 or more days.
- The year 2020 was worse when almost 5,000 (half the total) exceeded 16 days. Staff were sent home or detailed to emergency duties and many offices closed.
- The year 2021 saw some improvement, with about 3,700 requests (38 per cent of the total) exceeding 16 days for response.
New requests after January 15, 2021, were again governed by the 15-day aspirational deadline. The Council had suspended the 15-day rule (making delay unenforceable) beginning in March 2020 but restored it effective January 15, 2021. There were 3,000 awaiting response as the last fiscal year ended September 30, 2020. That was triple the backlog a year before. Agencies were given a bit longer to clear that 2020 backlog, until March 24, 2021 (and until September if lingering safety issues related to records access in uncleaned storage after COVID-19 required delay). Many D.C. government agencies couldn’t keep up and again ended the year with a huge 3,000-request backlog in September 2021. See blog post discussing the ongoing delay problem here.
Unless agency FOIA staff will volunteer an estimate, no law requires them to give you an estimate how long your request may take, as federal law requires from federal agencies. And the portal status display is unhelpful as well. The display in your account includes for each request a column headed “estimate [sic] delivery date.” It is not useful because it is not filled in with real numbers that reflect actual processing of your request. Agencies just fill in the full 15-business-day deadline (computed from date of receipt) and it never changes.
Nor is there any public information on processing. Reflecting the decentralized management of FOIA, there is no central authority that maintains a dashboard of FOIA processing stats showing what to expect at the agencies–for example, where there are slowdowns and backlogs. The Coalition’s FOIA requests for data go unanswered.
The law allows an agency to 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. This is ironic, when you get this formal notice of delay, since agencies take more time almost routinely without notice in a huge fraction of cases. 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 is no data available on the extent that agencies use this unreviewable option to add 10 days to their response.
What can I do about a delay?
Since delay is so common (see figures above) many requesters ask about enforcing the clear 15-day deadline in the law.
- If you hear nothing, check with the agency. Papers may be mislaid or the the request may need simple clarification. The Coalition recently found delay caused simply because the FOIA officer had not received the request; in the pandemic, he lacked technology to download requests filed at the portal.
- The FOIA law considers non-response to be a denial and denials can be appealed to the mayor (see below on appeals). An appeal prods action in many cases. In recent years one fifth of all appeals have been closed as “moot.” That means dismissed without need of any decision and written opinion, simply because the agency responded with action after the appeal was filed.
- Some requesters have resources to file suit in D.C Superior Court. For an example of a lawsuit in June 2021 by The Washington Post chiefly challenging delays in getting records of the January 6, 2021, Capitol insurrection, see here. See further discussion below about lawsuits to enforce FOIA generally. Though cases take time, you are assured of the agency’s attention. Every step is backed by the unquestioned power of the court and the agency, represented by lawyers from the Office of the D.C. Attorney General, must answer. But few cases challenge delay alone. The courts know thousands are also waiting and so they are not enthusiastic to help the few who can sue to jump the line. And if records are eventually released during litigation as happens often, the case ends. 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 appellees have, 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).
My request is important; can I get a quick answer?
Unlike the federal FOIA system where “expedited” processing is available for a request involving danger to the life or safety of individuals or urgency to inform the public about government activity, D.C. law does not include any such special track.
As stated repeatedly here, delays can be addressed by checking in first at the agency. Contact the FOIA officer to find out what’s happening. Sometimes, requests get lost or staff can’t figure out what the requester wanted; that kind of problem can be cleared up quickly when you ask.
Can an agency deny my request?
Yes. Fewer and fewer requests are granted completely — 30 percent of requests in 2021 (40 percent in 2020 and 44 percent in 2019). Denials in whole or in part (meaning redaction of items or pages) can be for various reasons:.
- No agency record. You may have asked for something that was never in a record, is kept in some other agency, some kinds of records were lost by fire, flood, or tech problem, or the record was discarded under records retention rules. (“Cutting costs by keeping fewer old emails” is a subject of discussion around D.C. government every few years, despite the low cost of electronic storage.) An agency that doesn’t have your requested record is not required to forward it or even find out where it may be. Staff sometimes know and will tell you–for example, D.C. Health Care Finance knows that Department of Human Services has all eligibility records for Medicaid health insurance; the Metropolitan Police Department knows that 911 calls are recorded at Office of Unified Communication.
- Records not reasonably described. The law says agencies must respond only to requests that “reasonably describe” the records. (See discussion above under how to frame the original request.) Agencies are not required to guess what you want or imagine an acceptable substitute (something maybe almost what you asked). They just deny a request that isn’t specific enough to search for and find. Clear requests at the outset help avoid this result, and willingness to negotiate if agency FOIA staff seem lost.
- Agency not required to create new records. The law is so clear it’s surprising how many appeals challenge an agency that denied a request that was not for records but was questions. So don’t ask 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.” MPD has denied a request by the police union on this ground (that more than 8 hours of reprogramming or reformatting would be needed), the first time we’ve heard of it. A pending Superior Court case (2021 CA 3695 B) will sort out what it means.
- Records exempted by the FOIA. The D.C. FOIA law includes 19 exemptions. How often each is cited in denials is reported in the mayor’s annual FOIA reports, overall and by each agency. Those most used, in descending order of frequency are exemptions for:
- personal information whose release would be a clearly unwarranted invasion of privacy; an important point agency staff almost always overlook is that a strong public interest in release of the information can override this exemption;
- law enforcement records, if they are compiled for investigation purposes (not just routine records) and their release could affect enforcement proceedings, reveal informants or secret techniques, or invade privacy;
- records that are part of internal agency deliberations, exempt to encourage frank internal discussion of options before any policy or decision is final; and
- other less common items — confidential business information and trade secrets; records covered by “privileges” (legal rules protecting certain communications such as between attorney and client); and for records exempted by other laws beyond FOIA such as D.C. laws governing medical examiner records, vital records (births and deaths), exempting charter school records and some body-worn camera video such as domestic incidents or from inside homes, or federal laws on privacy of student educational records held in local schools.
If you have questions about a denial based on an exemption, the Coalition may be able to advise you. The law describing each exemption is very brief, causing many arguments in thousands of court cases. Agency FOIA staff may lack thorough training and mistakes slip by supervisors. You shouldn’t hesitate to speak up if something seems wrong.
The Coalition has worked especially to correct misinterpretation of the privacy exemption, the one most often cited. In 2021, 3,211 requests were denied in whole or part; privacy was cited 2,426 times. Few staff understand that public interest can override it. In addition, the MPD believes officers enjoy privacy protection on the job and therefore erases officers’ identity plus images of bystanders, houses and traffic when releasing video from police body-worn cameras. The Office of Open Government upheld a Coalition complaint about this in November 2020 after reviewing the law and finding no privacy interest justified the MPD interpretation. Over-redaction requires longer and more costly work of contractors working on videos frame by frame to blur details of events that occurred in plain view. There is no sign since then that the opinion encouraged MPD to review its policy. The D.C. Police Reform Commission in 2021 called for less redaction of video releases. The Office of Police Complaints and MPD also deny FOIA requests for officers’ complaint and discipline records on privacy grounds but the Reform Commission recommended ending that as well and a bill to do so is pending (April 2022).
Can an agency deny some parts and release the rest of a record?
Yes. For example, a record may have a few items of personal data that should not be released to protect privacy (or confidential business information). But the rest may be releasable. The law requires release after “segregation” of those exempt parts. This is also known as “redaction,” meaning covering up some words or details in a record.
Agencies may ignore the segregation obligation and simply deny whole records, in order to escape the tedious search for a few parts to redact. Automated scanning now available hasn’t come to D.C. If records you were denied may have had this mixed character yet were entirely denied, consider an appeal asking the mayor’s office or the court to compare the original and released records to evaluate redactions. (Sizable numbers of the FOIA court challenges include claims of over-redaction.) Courts have also held that it’s not the prohibited “creation of a new record” to ask that an agency redact one column in a table or spreadsheet to remove exempt content.
How do I appeal an agency FOIA denial?
There are two ways in the law.
- First, you may appeal to the mayor. Though there is an huge backlog of over 300 such appeals now (May 2022) because the office stopped deciding cases during the pandemic, processing in prior years had been fast. And the process is free.
- Second, you may bring a civil lawsuit 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.
“Appeal” is a word associated with courts and decisions by judges based on briefs and arguments. But appeals of FOIA denials are different. A FOIA appeal is a simple procedure where your request for review is handled by staff lawyers in the Mayor’s Office of Legal Counsel. Requesters wonder whether attorneys for the mayor can fairly review actions of agencies headed by the mayor’s key appointees? The FOIA law has since the beginning assigned appeals to the mayor, so that is settled for now. (Federal law puts appeals of agency actions within the agency itself–even more potential conflict. But there is a mediation and ombudsman service in an independent Office of Government Information Services, an idea D.C. could consider formally adding to our Office of Open Government.) Observers report that the mayor’s decisions over the years have generally been fair and have not hesitated to find errors (in up to 50 percent of decided appeals in some years).
You don’t need to write a lot or show up anywhere. Your appeal (via the portal or in a simple letter, submitted to email@example.com), gives your side — what you asked for, any interactions with the agency, and what you got that’s unsatisfactory because they made some kind of mistake. The mayor’s office asks the agency for its file and an explanation of what they did searching for records and deciding what to release. This puts the agency on record. (The backlog of undecided appeals in 2021 and 2022 has been partly caused by agencies failing to explain their side of the story for many months, according to the appeals office answers to the Council in 2021-22.)
The mayor’s inquiry can be a wake-up call, often causing serious supervisory review at the agency for the first time. And that can uncover the simple and obvious errors that can be quickly corrected. In recent years 20-30 percent of appeals were “mooted” — that is, dismissed without need of a decision when the agency took corrective action on its own, for example, completing necessary searches or withdrawing an incorrect exemption claim.
Appeals are all done on papers. No need to show up somewhere, or argue what you think the mistake(s) were, unless you think that will help the decider. The assigned lawyer (at least until the disruptions of 2020-22) is an expert specialist and has seen it all, so is presumably able to do a comprehensive review of whether the agency obeyed all relevant parts of the FOIA law.
The simple process and quick response make this a go-to proposition. Yet surprisingly few requesters take advantage of the opportunity for a second look at any denial. In the last few years, appeals have numbered 100-200, or under 10 percent of the thousands of full and partial denials. The number is growing (maybe many just appealing non-responses during pandemic years) — 255 appeals in 2020 (70 were from a single requester) and 268 in 2021.
As discussed in several sections here, the appeals process stopped in 2020-21, leaving a backlog of over 300 by spring 2022. The Council Committee on Housing & Executive Administration that oversees the Mayor’s Office of Legal Counsel requested in its budget report in April 2022 only quarterly updates to the Council in Fiscal Year 2023 beginning October 1, 2022.
What happens when the mayor’s review finds agency mistakes? It happened in one of every four decided appeals–in 31 of 140 in 2020 (only 37 appeals were decided in 2021). Your appeal is affirmed or upheld, the agency denial is reversed, and the mayor writes an opinion directing the agency what to do to fix problems, called a “remand.” Such remands are most common in decisions at the agencies that get the most requests, the police department and Department of Consumer & Regulatory Affairs (that together in recent years received a third of all FOIA requests).
If your appeal is upheld and the mayor directs the agency to take further action, there is no sure result as there is no enforcement. So the agency may or may not follow through. For example, the agency may disagree with the mayor’s office interpretation of the law. Independent agencies are governed by boards or commissions and so not directly under the mayor. And the FOIA statute provides no method of enforcement of the mayor’s decision. The requester’s options are to appeal again or sue in Superior Court.
Can I read past appeal decisions?
The Coalition believes the Mayor’s Office of Legal Counsel must publish its FOIA appeal opinions. That’s our reading of the E-FOIA section of the law, DC Code 2-536, requiring every agency that decide cases to publish the opinions. And the mayor’s office has done so for years, but perhaps the pandemic interfered (only 37 cases were actually decided in 2021). Opinions since 2018 are missing in the two places commonly used–an online searchable database and the D.C. Register, the official weekly legal publication of the D.C. government. The Coalition has filed a formal complaint with the Office of Open Government to learn more about the problem and get it fixed.
What if a denial shows a general problem?
If a denial appears to involve how an agency generally interprets its duties under the law, there is another route to raise the issue. The courts can correct that, of course, but that takes a long time and is expensive. The Office of Open Government by law has authority to investigate and issue advisory opinions on implementation of the Freedom of Information Act. Details and a form to request a review by the Office are here.
This authority has been a significant source of independent review of agency practice. The Open Government Coalition has had some success with formal complaints seeking opinions about agencies’ policies, and though only advisory, some of the opinions have had good results. The Coalition advocates for amendments to FOIA that would add greater weight for the Office opinions. That could bring greater consistency to users’ FOIA experience across D.C. government.
Note two topics are not bugs but are features:
- Denials of FOIA requests by the D.C. Council may not be appealed to the mayor for review in the process described above. The only way to challenge a denial by the Council (or ANCs) is to file suit in D.C. Superior Court.
- Fee waiver denials may not be appealed. The Mayor’s Office of Legal Counsel reads the law as authorizing only review of denials of records. And they say that doesn’t happen in cases of fee dispute: the requester can still get the records by paying the fee. In addition, one D.C. court opinion has found the courts can’t review such denials either. See further discussion under fee waivers below.
What do I say in writing my appeal?
D. C. provides barebones instructions here: https://dc.gov/page/freedom-information-act-foia (look half-way down the page). If you used the portal originally (to submit your request) it’s also the easiest way to submit an appeal. The software automatically attaches your original request and forwards the package not only to the mayor but (as required) also to the original agency FOIA officer. You fill in a box or attach a text to explain the request (add timeline of events including calls and emails with the agency) and response if any, and attach a copy of any response. You may give details of your reasons for questioning the agency results such as:
- inadequate search;
- mistakes in applying exemptions (often leading to incorrect over-redaction);
- failure to segregate exempt material and release the rest;
- denial of records in requested format.
Again, you do not need to present a legal argument referring to the D.C. law or court cases. The mayor’s office looks at the whole record and spots any errors, whether or not you mentioned them. To inform yourself about what the law requires for agencies to justify a denial, for example, what counts as a reasonable search, or what records qualify for law enforcement investigatory records exemption, you can read sections of the FOIA Wiki posted by the Reporters Committee for Freedom of the Press, or the U.S. Department of Justice Guide to the FOIA. Other resources are discussed below under how to research the law.
Where do I send my appeal?
By email to: firstname.lastname@example.org.
By mail: The Mayor’s Office of Legal Counsel, FOIA Appeal, 1350 Pennsylvania Avenue, NW, Suite 407, Washington, DC 20004.
Send a copy of the appeal and attachments to the FOIA officer of the agency involved.
The Mayor’s Office of Legal Counsel assigns an appeal number and in past years has sent a copy of their email to the agency seeking the case details. We stopped getting such copies in 2021, but we can’t say if appeals were never sent to agencies or just no copies to us. 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). You don’t get any formal opportunity to reply but if the agency says something very obviously wrong it can’t hurt to write the Mayor’s Office of Legal Counsel to point that out. (Remember, in normal times, the process is fast–start to finish the appeal is to be completed in 10 days.) The agency response is usually discussed in the opinion, which can help a requester to evaluate the strength of the government’s defense, and thus to decide whether or not to go to court with further challenge.
Can I sue the government for delay or denial or other problems with a FOIA request?
Yes, you can sue at any point. But the easier route has traditionally been in recent years to start with an appeal to the mayor. That opportunity has essentially shut down in 2020-21. The Mayor’s Office of Legal Counsel has over 300 backlogged appeals in spring 2022–more than a year’s worth. They have offered and the D.C. Council has not demanded any clear plan for clearing the backlog. The Coalition testified to the Council asking for pressure and resources to restore this important opportunity to correct the frequent agency FOIA errors without need of going to court. The Council Committee on Housing & Executive Administration that oversees the Mayor’s Office of Legal Counsel requested in its budget report in April 2022 only quarterly updates to the Council in Fiscal Year 2023 beginning October 1, 2022.
The much heavier lift in time and resources is to file suit. 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 here for FOIA cases. It can take many months to get the court’s decision. Very few FOIA requesters pursue problems in court–a handful in a year.
D.C. FOIA allows you to go straight to court to challenge agency FOIA mistakes. That is, unlike rules for federal FOIA requests, you do not need to use the administrative (non-court) appeal to the mayor before filing a lawsuit (which is good, since that process has been dysfunctional for a year). When available, the appeal to the mayor is a low-cost method to gather strategic information. Agency denial letters usually give skimpy reasons, mostly a bare citation to a law or regulation. An appeal forces higher-level agency staff to review the file to explain and justify the denial to the appeal attorneys in the mayor’s office. For a disappointed requester, the resulting mayoral opinion is a goldmine. Such opinions recap the government arguments (a preview of what they will say if you sue) and also give an evaluation of those points by the appeal office that knows the law. That information is invaluable as a requester considers further action.
Filing requires a $120 fee (waivable for low-income persons). Cases are filed electronically. All civil matters (car wrecks, medical malpractice, business contract disputes) wait months to get before a judge. Lawyers defending a D.C. agency FOIA denial usually jump out before that and ask the court to dismiss the case before it goes any further. To prove their point that law and facts are both favorable to the government, they write up the law in a brief and attach sworn statements from staff about search or exemptions. A brief from the challenger is needed opposing the motion to dismiss, by showing the court there are conflicts that need further exploration.
A requester who survives a motion to dismiss gets a scheduling order, setting a calendar for the further steps in the case. It can extend a year or two, though some take forever. (Two-thirds of the 31 active cases reported by the attorney general in Fiscal Year 2021 were only a year or two old. More details below.)
Another round of briefs ask the court to decide whether the case can end with “summary judgment,” or if a trial is needed. Conclusion at this stage is common; trials are rare in a FOIA case.
You won’t get to see disputed records but the judge can review them privately to decide if the agency was correct, for example, that they contain exempt materials — private personal details, confidential business details, or internal agency deliberations. Agency staff submit sworn statements through the lawyers about their search.
D.C. judges are reasonably skeptical of agency claims since they are often wrong, but even so, success usually requires a long slog and a skilled attorney to challenge shaky agency facts and educate the court about the law.
If you have a strong case, a few attorneys will take cases without requiring you to pay. They count on getting paid later if they win, since the law allows the court to order the D.C. government to pay a winning requester’s attorney’s fees and costs. But the District often contests a fee request, leading to another round of litigation that can add years to the struggle (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).
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 2021 is here (31 cases). For 2020 (21 cases) see here. (Scroll through the mayor’s report; the OAG report begins at page 199.)
For 2021, unlike older reports that showed many old cases, half were closed in the year including the very oldest from 2013. (We have reported on that one for years, as it’s been a poster child for weak FOIA implementation and in our view over-zealous legal defense of bad original actions. The District lost twice, both at trial and on appeal, defending faulty handling by an ANC of a FOIA request, at an eventual cost of $139,000 in attorneys fees to the successful requester, Kirby Vining.) Those cases still open are almost all filed relatively recently (two thirds in 2020 and 2021). The odds of getting some relief by litigation are good: 20 of 31 plaintiffs in the 31 active cases last year gained 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. That bill in 2021 totaled $342,700–an outrageous sum considering these are all unforced errors. 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 appeals and lawsuits, offering pre-denial help for agencies deciding complex requests, and ultimately declining to defend some cases in trouble-plagued spots (almost half the lawsuits challenge MPD decisions and over 100 of the 266 appeals to the mayor in 2021 likewise challenged MPD denials).
Will the Coalition represent me in a FOIA court case?
Rarely. The Coalition has no attorneys on staff. With volunteer help, the Coalition sometimes takes cases that raise exceptional questions of law that affect many people, for example where the D.C. Council had a policy to deny records on questionable legal grounds.
Will D.C. charge a fee for my FOIA request?
There is no charge for a portal account or for filing a request.
Agencies may charge for searching, reviewing and copying records. They can charge even if the search does not locate any responsive records or if records are located but are withheld as exempt. A schedule of fees is published in the D.C. Municipal Regulations, Title 1, Section 408. Locate that here.
The fee regulation shows the charge for searching and reviewing is based on the level of staff doing it and ranges from $16 to $40 per hour. The first hour is free. If your request turns up a big stack of records you can keep copying charges down (set at 25 cents per page) by asking to “inspect” the responsive records first and copying only those of interest. The law allows this. Or bring your own scanner.
Expect high fees for copies of video from MPD body-worn cameras. Discussed above under the privacy exemption, the charges result from the incorrect and over-broad MPD view that they mist protect officer privacy. Doing so requires long hours of redaction by expensive outside consultants. The Coalition has advocated for years for faster, cheaper and clearer body cam video. The Office of Open Government has held the MPD view of the privacy law is incorrect and the fees unlawful because they were not properly established. The D.C. Police Reform Commission echoed these views in its report. See discussion here.
Are there discounts or full waiver of FOIA fees?
There are two main kinds of fee waivers; 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 show you’re willing to pay and how much, or you may check a box to ask for a waiver. Take care to also add text to explain how your request fits the requirements in the law.
The text box allows only 255 characters. In our experience, some D.C. agency staff do not understand the law of fee waivers, so more space is needed to explain how federal court decisions have expanded eligibility, for example for student and media requesters to try to ward off uninformed denials. And a thorough justification for full “public interest” fee waiver also takes more space. Agency staff in our experience deny waivers simply saying “insufficient justification.” Attaching a separate document is better, with full discussion of why you qualify. Be of good cheer; most people get waivers. D.C. FOIA cost $3.9 million to administer in Fiscal Year 2021, and D.C. collected $16,600. So lots of people are getting waivers.
The three kinds of waivers include:
- Partial waiver for media requests. Media requesters are eligible for waiver of fees except for copying. Some agencies may reject some forms of media as not qualifying (bloggers, podcasters, free lancers, book authors, or analysts at nonprofits). This happens if their FOIA staff have not kept up and think it means only the 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 new world of media sometimes 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 email@example.com.
- Partial waiver for requests from an educational or non-commercial scientific institution for scholarly or scientific research. These are also eligible for a waiver of fees except for copying, and now include not just teachers’ but also students’ requests. In 2016 the U.S. Court of Appeals for the D.C. Circuit overturned a longstanding view in the federal government that requests in furtherance of student work in university courses are personal, not “made by” the institution as the law seemed to require. The ruling, authored by then-Circuit Judge Brett Kavanaugh for a unanimous three-judge panel, rejected that interpretation:
- “We disagree with the Government’s slicing of the term ‘educational institution.’ If teachers can qualify for reduced fees, so can students. Students who make FOIA requests to further their coursework or other school-sponsored activities are eligible for reduced fees under FOIA because students, like teachers, are part of an educational institution.”
- Full or partial waiver for requests that are in the public interest. Requests where the information will primarily benefit the general public are eligible for full or partial waiver. To support a public interest fee waiver, a requester should address factors such as these (taken from DOJ guidance on similar federal law) beginning wih how the subject of the requested records concerns government operations and activities, plus:
- The disclosure is likely to contribute to understanding of these operations or activities;
- Disclosure will likely result in public understanding of the subject;
- The contribution to public understanding of government operations or activities will be significant;
- The requester has a limited commercial interest in the disclosure;
- The public interest in disclosure is greater than the requester’s commercial interest.
What can I do if my fee waiver request is denied?
First, as already noted, it seems almost nobody is paying fees. No data are published on fee waiver denials, but the actual amounts of fees collected are tiny. The mayor’s annual reports show just under $17,000 collected in 2021, $15,000 in 2020. FOIA does cost money, but there must be little pressure to deny waivers to balance the books (including few truly voluminous requests lacking public interest). Detailed research into the 800,000 federal FOIA requests received annually shows commercial and personal requesters clog federal FOIA pipelines; thoughtful scholars have great ideas how to change the 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 10,000 requests per year, and agencies’ annual cost estimates total $3-4 million in the last two years–chiefly staff costs for around 30 FTE. That may be no surprise considering 63 of 81 agencies reporting got 100 or fewer in 2021, only a couple requests a week. Though that was an unusual year, the same has been true in earlier years. Only 10 D.C. agencies are stressed with 200 or more requests.
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 they should. See above on how the federal case law has evolved over the years such as broadening student and media eligibility for waiver.
If necessary, cut costs by
- 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 downloaded to the portal or posted electronically to a CD instead of printed out (an “electronic copy” should not entail a charge).
There is no effective appeal of fee waiver denials, either in the Mayor’s Office of Legal Counsel or the court. The mayor’s lawyers believe the law authorizes review only where records are actually denied. Those denied a fee waiver, they say, can still obtain records by paying the fee.
And one Superior Court judge has ruled the courts also can’t review a fee waiver denial. In a 2019 ruling, Superior Court Associate Judge Heidi Pasichow held that the FOIA statute leaves the waiver entirely up to the executive and unreviewable by the courts. Trial court opinions like hers are not binding on other cases but this wasn’t just out of thin air — it rested on some other D.C. Court of Appeals rulings.
In her opinion, Judge Pasichow began with the D.C. FOI statute which is clear that records “may be furnished without charge” if the agency finds it in the public interest. It doesn’t say “shall be furnished” as does the same section of federal FOIA. The court concluded a D.C. agency can, without further court review, make its decision in its own best judgment. It can even deny a waiver request that is in the public interest.
The September 2019 opinion also upheld the reasonableness of a $9,000 fee the agency proposed to charge.
The case is Tormell Dubose v. D.C., No. 2018 CA 378 B (Superior Court), No. 19-CV-1239 (D.C. Court of Appeals). Dr. Dubose, a D.C. dentist, requested Department of Health records about his practice. He said he needed them in connection with a conflict with the department’s licensing board. In December 2019 the doctor appealed both the waiver denial and the reasonableness of the proposed fee. The case was argued November 30, 2021. With several vacancies until recently, the Court has had higher workloads and delays. Average time from argument to opinion was 274 days in FY21 (the most recent year with published data).
In a unique decision, an agency fee waiver denial was overturned by the Office of Open Government in 2022. The investigation took a year but the Office affirmed a complaint by Dupont East Civic Association that the Department of Consumer & Regulatory Affairs incorrectly charged for document review and also incorrectly denied their request for public interest fee waiver. For the first time we know of, an outside adjudicator has disagreed with an agency definition of “public interest” — here finding the agency applied an incorrect standard and that records need not be of District-wide interest. The Office has authority to review agencies’ adherence to FOIA law and policy. Similar to any court, the Office thus has to decide what the law means. When it does so, that could be useful as a precedent government-wide, but that’s not allowed in current D.C. FOI law. For now, Office of Open Government opinions are only “advisory,” so agencies can ignore them. The Open Government Coalition has advocated unsuccessfully for more authority for the Office. Both the Mayor’s Office of Legal Counsel and the Superior Court have refused to review fee waiver denials, so this new opinion from OOG is notable and others denied public interest fee waivers may want to consider if they have similar grounds to seek review.
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 (six pending as 2021 ended, four in 2020). 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 in 1977. But where D.C. and federal FOI statutes are similar, the courts here rely on federal court opinions. That provides a lot of research material to help determine what the law means, since there’s a half-century of cases at all levels of the federal courts interpreting federal FOIA.
Some resources are:
- a useful “FOIA wiki” is kept up to date with new cases by the Reporters Committee for Freedom of the Press;
- the U.S. Department of Justice publishes a 900-page legal manual called Guide to the FOIA available online;
- as cited often above, facts a bout D.C. processing are in the D.C. mayor’s annual reports to the D.C. Council on FOIA processing by each D.C. agency, including volume, backlogs, timeliness of processing, requests granted and denied in whole or part, exemptions claimed, staff time spent and dollar costs. The Mayor’s Office of Legal Counsel adds a report on administrative appeals each year, with brief summaries of the cases, the agencies and the result in each case. The Attorney General adds a report with information on each case in the D.C. courts during the year. It’s sometimes filed separately, as in March 2022, sometimes with the mayor’s report, as in March 2021 (PDF p. 199). These data may show you details about an agency that concerns you (processing history, appeals and litigation).
- The Office of Open Government staff is knowledgeable and as responsive as their limited resources permit. They have no formal charge to be a FOA 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.
- And you may contact the D.C. Open Government Coalition. Our email address is firstname.lastname@example.org.
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 April 2022 and correct to the best of our knowledge. Additions and corrections are welcome (send to email@example.com). It is intended as general background only. It is not intended as legal advice applicable to any particular situation. Before taking any action based on this website or other general discussion of law, you should discuss the facts of your particular situation and seek advice from an attorney qualified to practice in the District of Columbia. No attorney-client relationship is created unless and until a written agreement (called a retainer) is signed by both you and an attorney.