D.C. Council Votes to Restore FOIA Processing Deadlines in the New Year – But Backlog Could Last to March

Fritz Mulhauser | December 2, 2020 | Last modified: December 3, 2020

The expected D.C. Freedom of Information Act changes passed uneventfully in a marathon session December 1, the next-to-last legislative meeting of the current Council.

An emergency law good for 90 days passed with the one required reading. A similar temporary counterpart lasting 225 days passed as well and will get its second vote at the last session December 15.

The Council in these acts repealed the suspension of deadlines for FOIA requests in effect since March 2020 when the Covid-29 emergency was first declared. The District was unusual in closing down legal requirements for prompt public access to government records this way, according to Coalition contacts elsewhere. A New York Times editorial in May also reported only a few states and cities that by law abandoned deadlines (though it noted rampant delays).

In the District also, without legally enforceable deadlines for processing or appeals, many requests have gone unanswered. That backlog has grown by late September to 2,000, double the level of this time last year, according to data provided by the mayor’s office to the Council. Appeals backlogs grew after that deadline was also suspended, reaching over 83 or one-third of the total submitted all year, again according to the executive response to the Council.

Following community advocacy (see blog post here on petition drive and sign-on letter) the Council now has decided that beginning January 15, 2021, requests submitted since March and not yet answered must be cleared in 45 work days (60 days for requests for MPD body-worn camera video).

Some agencies did process some requests during the eight months since deadlines ended in March (half, or 2,152 of 4,109 according to data through September 22 in the mayor’s response to Council questions). But the daunting backlog will have grown for almost four more months by the time deadlines begin again in mid-January and all must be cleared by the 45-work-day deadline in the new law. In the worst-case hypothetical, a request that has lingered since the start of the pandemic in March 2020 could emerge as much as a full year later, in late March 2021.

New requests submitted after January 15 will be governed by the familiar statutory deadlines–15 workdays in general (25 days for MPD BWC video).

The 10-day appeal processing deadline, also suspended in March, will be restored in January as well.

But even some new requests may be further delayed. For any new request that requires an on-site review of records that could present a significant risk to health or safety, the new law allows the agency to suspend processing until 45 days after the end of the public health emergency.

In discussions of drafts of legislation, no data were available showing which agencies were backlogged, or why. That is, it is unclear where responses to FOIA requests may require any type of risky search that can’t be done during the emergency. In the data provided go the Council as the legislation took shape, the executive did not identify agencies with special health-risk concerns associated with FOIA searches.

Concerns about the Council’s own operations may have been influential as well. Staff (speaking anonymously as they were not authorized to discuss the subject) said senior staff urged delay of reimposed deadlines so that legislative branch staff now working remotely would not be required to enter the closed Wilson building and search in unsanitized rooms of paper files. Paper records may be especially important there. Because of a change in the mail system, electronic mail before 2012 is no longer accessible, according to a July 30 Council response denying a May 2020 request for email about events in 2009-10.

The Coalition will continue to monitor data on FOIA request processing and to propose further changes as needed. Full numbers on the experience this year will be available in the mayor’s annual FOIA report to the Council (to be posted here, due February 1, 2021).

As the New York Times summarized months ago, “While the work of government continues, citizens are losing a fundamental right to transparency. That’s a threat to good government and democracy.”

Any further delays in access to D.C. government records will be particularly troubling if they hinder requests for details about the public health emergency, for example, on infections and causes in settings where children are returning in groups (day care, schools) and in public places like restaurants, now with limited access. Intense public interest centers on data underlying decisions on such openings and closings, plus upcoming plans for targeting and delivering vaccination.