D.C. Council Chairman Responds to Community with Proposed Return of FOIA Deadlines in the New Year

Fritz Mulhauser | November 25, 2020 | Last modified: November 27, 2020

The D.C. Council will vote Tuesday (1) on emergency legislation to restore deadlines for processing public records requests.

Beginning January 15, 2021, new requests once again must be answered in 15 days, appeals in 10. The clock also re-starts then for agencies to answer the thousands of requests backlogged since March, but their deadline will be 45 days.

The proposal from the chairman was released on his website today (25), over eight months after the Council first suspended deadlines at the start of the pandemic out of concern that search and review of records not distract from urgent work or put staff in jeopardy.

Federal FOIA deadlines, and those in states and cities almost everywhere, have remained in place during the pandemic though delays have also been common.  Data obtained by the Coalition in October showed D.C. agencies together have a backlog of 2,000 unfilled requests—twice as large as last year at the same end-of-year point. Unanswered appeals had grown to over 80, a third of those filed all year.

Community members including organizations and individuals (and the Open Government Coalition) formally petitioned the Council to take action to end the extraordinary shutdown of prompt public records access.

The emergency declaration for the new bill acknowledges that “advocates have asked that the Council revisit this provision in light of agencies having the ability to fulfill these requests now that the government has adjusted to working during the pandemic.”

The proposed legislation takes effect January 15, 2021, so agencies have six weeks before then to address the backlog, plus 45 (work) days more after the law takes effect. Thus requesters with unfilled requests may not hear until late March 2021.

Help for agencies with backlogs was a goal in the drafting; the proposal almost came to the Council several weeks ago but was delayed to fine-tune the treatment of the pending requests. The chairman wrote in a cover note with the proposal, “The January 15th start will ensure that any requests received since March 11, 2020 (the first day of the declared Public Health Emergency) do not immediately come due. . . Upon adoption [of the proposed bill] the FOIA process will resume, but with adequate time for agencies to process backlogs.”

The proposal also will allow agencies to take 45 more days to process new requests “if the need to conduct an on-site review of records could present a significant risk to health or safety during the COVID-19 pandemic.” The legislation provides no details on that new exemption. Delays allowed in the law for other unusual situations have not in the past been appealable.

The Coalition believes that there should be an exception to both the new 45-day extensions for requests pertinent to public health, safety, environmental protection, or other compelling public interest in disclosure. “Expedited treatment” is available for certain urgent requests under federal FOIA, and applied here would at least assure the public that government records remain promptly available in the most significant matters.