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Coalition Lawsuit: Court Should Reverse Three D.C. Denials of Access to Database

Fritz Mulhauser | December 1, 2023

It should have been an easy request for the D.C. government to fulfill: provide a basic count of public records requests—those received but not closed, the backlog that at one point reached 3,000 during the pandemic.

But the Office of the Chief Technology Officer (OCTO) rebuffed three such requests in 2021, 2022, and 2023, each asking for only a simple bit of data accessible in the computer database where the Office keeps track of most of the roughly 10,000 public requests for records each year.

Now, the non-profit, all volunteer D.C. Open Government Coalition is suing to get the District to provide the information.

In a lawsuit filed on Wednesday, Nov. 29, in D.C. Superior Court by the Public Justice Advocacy Clinic at George Washington University Law School, the Coalition asserts that the D.C. government is violating the city’s open records law, the D.C. Freedom of Information Act (FOIA), D.C. Code §§ 2-531-539, by withholding the data.

“Typing a query into a database is the modern day equivalent of physically searching through and locating data within documents in a filing cabinet.”

Center for Investigative Reporting v. DOJ, 14 F.4th 916 (9th Cir. 2021)

A digital database is a body of information stored in computer memory, easily accessed and retrieved in various ways. Searching for and extracting a tiny slice from existing data in a D.C. database does not require any research or burden, such as the creation of new records or redaction of exempt details.

The Coalition sought records showing the backlog of D.C. FOIA requests as part of its work to advocate for agency compliance with the open records law.

“The Coalition made three straightforward D.C. FOIA requests to OCTO for records it certainly maintains reflecting the number of D.C. FOIA requests not marked as closed in the [D.C FOIA] Portal. Each time, OCTO unlawfully denied these requests, relying on varying rationales unsupported by the purpose and text of the D.C. Freedom of Information Act,” according to the Coalition’s complaint beginning the lawsuit.

Most recently, OCTO ignored a June 2, 2023, direction from the Mayor’s Office of Legal Counsel (upholding the Coalition’s appeal of the incorrect OCTO denials) that the agency search its database and/or run a report for the count of requests as requested.

The Coalition is asking the court to order OCTO to do what it has refused to do for two years: disclose the number of open FOIA requests at three points of time.  “Reversing the OCTO argument that they ‘can’t find’ what we requested will be important,” said Coalition President Kirsten B. Mitchell. “Also, we hope the court establishes a common-sense principle for future requesters that databases are records available under D.C. FOIA.”

Counsel for the Coalition is Jeffrey Gutman, Professor of Clinical Law and Clinic Director, together with student attorneys Kaitlyn Iwanowski and Samuel Rutzick.

The case is DC Open Government Coalition v. District of Columbia, No. 2023-CAB-007251. It is assigned to Judge Robert Rigsby. The District has 60 days to respond to the complaint, which is available at the court’s online docket here. The initial court date is a scheduling conference on March 1, 2024.

Coalition press release on the litigation, issued December 1, 2023, is here.