Coalition Puts D.C. FOIA Issues At Center Stage in More Oversight Testimonies: Dysfunctional Request Portal, Massive Delays in Deciding Appeals, and Overall Inattention to Enforcing the Law  

Fritz Mulhauser | March 21, 2022 | Last modified: March 30, 2022

The Open Government Coalition testified three more times as Council committees completed 56 hearings totaling over 320 hours in January and February reviewing agency performance during the second pandemic year, 2020-21.

Reports on earlier testimonies this year can be read here (on lack of transparency in Advisory Neighborhood Commissions) and here (on ill-advised proposals for autopsy secrecy from the Medical Examiner, limitations of plans for new D.C. Archives, and lack of public information at the Office of Administrative Hearings).

The mayor’s Fiscal Year 2023 budget arrived last week on Council desks, so budget hearings begin Monday (21) and continue to April 7.

In the final three testimonies the Coalition reported performance problems needing Council attention:

• The online request portal used by most to submit requests under the D.C. Freedom of Information law for public records works poorly and its shortcomings for public users are ignored by its manager, the Office of the Chief Technology Officer.
• Over 300 appeals of agency FOIA denials are stacked up undecided in the Mayor’s Office of Legal Counsel with no clear plan for clearing them and the agency doesn’t even answer FOIA requests about the problem.
• The open records promise of D.C. FOI law is generally undercut by outdated law, little enforcement, and no sustained attention to policy or practice by either legislative or executive branch; the Council needs to step up and address especially law revision and technology needs so that records in the digital era remain accessible, not lost through inattention or misplaced economies.

Details of each hearing are below.

FOIA Requests Shouldn’t Be This Hard

The Coalition testimony (by this writer) to the Committee on Government Operations & Facilities on February 17 emphasized again that the public portal for online filing of FOIA requests presents users, especially non-specialists, a host of frustrating obstacles. And that the agency responsible, Office of the Chief Technology Officer (OCTO), has been unresponsive to years of Coalition concern (see blog post on critical 2019 testimony here), despite the enormous pressure on all software providers, in public and private sectors, to pay attention to improving the “user experience.”

The Coalition backed its recommendations by citing a sweeping White House plan unveiled in an executive order in December to improve federal web activities in this way, with feedback from users guiding constant improvement.

The Office of Open Government at the same time issued an advisory opinion, in response to the Coalition’s complaint about users’ problems and government indifference.  The opinion found some incorrect legal aspects and required OCTO to “undertake a general legal review.” The opinion also agreed on many other troubling elements of the portal software and web interface the Coalition complaint charged are confusing, unreliable, not current, incomplete, and thus unhelpful, recommending both specific changes as well as review by contracting officials whether the overall “usefulness and economy” of the proprietary software is justified by the whopping cost of $750,000 in the last three years.

The software is advertised as making record-keeping and reporting easier, but the Coalition testimony reported it doesn’t do that either. The mayor’s annual FOIA reports due each February are routinely delayed and OCTO denied our requests for data from the portal system on the implausible ground they have no such records. 

Rather than reorient OCTO, which has repeatedly said its mission does not include helping individuals (its clients are chiefly D.C. government agencies), the Coalition suggested a new Office of Electronic Government. The Office, free of OCTO duties of handing out laptops and installing WiFi in schools, would be charged with setting standards for user-friendliness in online government services and monitoring agencies’ efforts to gather user views of systems’ performance.

Such a new agency, the Coalition urged, is needed to serve the goal the White House announced in the December executive order, that

management of [the government’s] customer experience and service delivery should be driven fundamentally by the voice of the customer through human-centered design methodologies; empirical customer research; an understanding of behavioral science and user testing, especially for digital services; and other mechanisms of engagement.

Executive Order on Transforming Federal Customer Experience and Service Delivery to Rebuild Trust in Government (E.O. 14058, 12/16/21)

The Coalition written statement is here and hearing video is here, with oral testimony at timestamp 1:15:30.

In Q&A (from around 1:30) Chairman Robert White (D-At Large) asked about federal help and OCTO receptiveness, concluding “I’ve seen the same issue myself and have been trying to think through how we address it. … It’s clear we don’t make our websites for ease of use or prioritize updating technology,” and recounting his own frustration spending much time navigating a government online portal to pay a D.C. parking ticket, while in contrast, the same day, buying a pair of shoes easily in minutes in online e-commerce. The Coalition heard chances of progress in his concluding comment:

We limit our expectation of government; we’re happy when it just works, even if it’s not user friendly, takes forever…But that can’t be the measure. We must be a bit more ambitious…We engage government agencies digitally and must make sure that experience makes sense for the end user… So I hear what you’re saying; we’ll follow up; this is something that’s been bugging me…we’ll circle back and talk through that a bit.

D.C. Council member Robert White

The Chief Technology Officer, Lindsey Parker, now also Assistant City Administrator, didn’t address the portal in her testimony but in an email afterwards offered to meet with the Coalition.  No date has been set.

FOIA Appeals Are Backlogged With No Relief In Sight

The Coalition testified to the Committee on Housing & Executive Administration on February 25, reporting a huge stack of pending FOIA appeals in the Mayor’s Office of Legal Counsel (MOLC), some going back years, and totaling over 300. For example, six Coalition appeals are overdue an average of 316 days with the oldest over 600 days.

Coalition testimony was echoed by an individual witness, Chris Bangs, who recounted no MOLC action in 11 months on two appeals and how MOLC is “relied on by people who are not lawyers and are not able to take agency nonresponse to court.”

The D.C. FOIA requires decisions in 10 days, and the office until several years ago had an exemplary record, according to Coalition evaluation of annual reports (not yet filed this year). Decisions by knowledgeable attorneys were fast, free, and fair; their opinions included a large fraction reversing denials and requiring correction of agency mistakes without need of the time and costs of litigation. Loss of that functionality is very unfortunate, in the Coalition view.

Lacking published data, it’s unknown if the MOLC issued any opinions at all; the Coalition has found the MOLC has not published any opinions in several years and if there were opinions the failure to publish is a violation of the law (and subject of a pending Coalition complaint). The MOLC is not transparent in other ways:

• it ignores appellants’ status inquiries
• it does not respond to FOIA requests for data on its own processing
• it does not forward data on its own processing of FOIA requests to be included in the mayor’s annual report to the Council (it gets few but has answered only some of those, according to data in prehearing responses to Council questions)

Because FOIA appeals appear to be treated as a function to be set aside whenever necessary, the Coalition recommended the committee propose legislation to transfer the Mayor’s duty under FOIA to decide appeals to the Office of Open Government, along with the necessary staff.

The MOLC director, Eugene Adams, explained to the committee chair, Anita Bonds (D-At Large), that the FOIA work is a “challenge” for the office in view of “competing priorities” inherent in the mission to support the legal needs of the mayor, deputy mayors, and heads of agencies and their general counsels. Director Adams “committed to dramatically improve” without addressing details such as informing the public what’s been happening, finding added resources, and setting a timeline for clearing the enormous backlog. (More cases await decision than the office typically handled in a previous full year.) He offered to consult his staff on the idea of moving FOIA appeals to another office.

Prehearing submissions showed that the MOLC, unlike agencies, prepares no work plans, tracks no staff time, and does no evaluation of performance – all perfectly reasonable since as the office also reports, it is judged on the metric simply of satisfying the mayor. That ignores the public-facing task of FOIA appeals, apparently just shelved for the year.

Director Adams noted FY21 had been a year of extraordinary legal demands and addressed the backlog only indirectly, shifting responsibility by remarking that COVID-19 disruptions of agencies’ staff and work caused “problems getting agency responses.” (Yet FOIA law changes restored all agency deadlines in early 2021, even for clearing old requests.) The MOLC a few weeks ago added a temporary additional attorney but Director Adams said he lacked budget funds for any more additional staff.

The Coalition witness (this writer) also urged the committee, which has jurisdiction over records management, to initiate action to outlaw any use for official business of disappearing message apps that mean official exchanges are lost forever.  Growing evidence at the time of the hearing showed it’s widespread among D.C, officials. The Council passed such an emergency amendment a few days later.

The Coalition written statement is here and video is available on the committee YouTube site here (testimony at timestamp 4:14:55).

FOIA System Review and Overhaul Needed

To the Council Committee on Human Services, Coalition board member Robert Becker testified February 22 on the Office of Open Government (OOG), part of the Board of Ethics and Government Accountability. The OOG is the District’s transparency watchdog, responsible for enforcing the Open Meetings Act and advising about (but not enforcing) FOIA implementation

He told committee chair Brianne Nadeau (D-Ward 1) about perennial problems of agencies not following FOIA law — responding late, searching incompletely, improperly applying the limited exemptions from disclosure, resulting from the complete lack of central oversight, direction and enforcement across the many agencies that process requests. Even when appeal decisions reverse denials, the remedial steps such as further search, less redaction, or withdrawal of exemption claims are unenforceable.  

To address the lack of sustained attention to policy or practice by either legislative or executive branch, he encouraged the committee to embrace the proposal in the advance written testimony of the Office of Open Government proposing a FOIA Reform Task Force of both government branches plus experts and users to think broadly to design a new scheme of enforcement and oversight and also to recommend how to assure necessary long-term capital investment, together with specific improvements in the law.

Meanwhile, he asked the committee to

• require agencies to comply with the affirmative publication requirements in D.C. Code § 2-536, with added funding where necessary for staff and improved record management systems
• change the law to apply the Open Meetings Act to ANCs
• address the lack of any administrative appeal of ANCs’ FOIA denials by authorizing the Office of Open Government to handle them. (Current law requires the mayor to provide an administrative review of appeals only of agency denials; no such review is available for any denial by any part of the legislative branch.)

The written statement is here.  Video of the hearing is available here, with Coalition testimony at timestamp 0:08:49.