D.C. Told to Scrap Unlawful Limits on Searches When the Public Asks for Government Emails

dcogcadmin | July 6, 2017

Naming the sender or recipient of email (and a date range) is enough – all the law requires to trigger a search, according to a new ruling by the D.C. Office of Open Government (OOG).

The D.C. Office of the Chief Technology Officer (OCTO) had been warning they would only process search requests naming every possible recipient.

The policy was contained in a form OCTO has been issuing to all D.C. agencies submitting requests from the public for government emails. OCTO is the keeper of the keys to the email kingdom, as that office operates the computer network and servers for all D.C. government emails.

The ruling turns on interpretation of a requirement in the law that requests be ”reasonable,” a term that has been looked at by many courts.  The OOG opinion says the courts have ruled that local public records law (the D.C. Freedom of Information Act or FOIA) doesn’t require the detailed name lists OCTO was mandating.  OOG said the one case OCTO lawyers cited is irrelevant and a D.C. Court of Appeals opinion they overlooked had explained the correct reading of the law to them just last year.  (FOP v. D.C., 139 A.3d 853 (2016)).

The D.C. Open Government Coalition uncovered the unlawful policy when the Office of the State Superintendent of Education passed on the OCTO requirements and a Coalition request to OCTO for the underlying policy turned up the details.  The Coalition then asked the open government watchdog to use authority granted by the law to review the agency position.

The opinion is “advisory” (not binding) but is written by experts and sends a strong signal to an agency that their legal position may be weak in any further legal proceedings.

A D.C. official with knowledge of the matter told the Coalition that relevant officials now seem “keenly aware” of the problem and committed to resolving it with a solution in the works.