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D.C. Transparency Watch: Open Government Office For the First Time Raps An Agency for Evading Mandatory No-Fee, No-Request Publication Law

dcogcadmin | February 2, 2016

UPDATE 4/20/16: Office of Open Government Director Traci Hughes testified today before the D.C. Council, Committee on Business, Consumer & Regulatory Affairs, urging that the budget for the coming year 2016-17 for the Department of Consumer & Regulatory Affairs include resources needed for compliance with open government laws–as outlined in the Office opinion discussed below.  Analysis reported in the testimony suggested costs may be far less than the agency estimated earlier, but still new funds will be needed.


UPDATE 3/20/16: The Washington Post reported today that requesters are still encountering incorrect procedures at the D.C. Department of Consumer & Regulatory Affiars when seeking building permit records that are required to be public without request or charge. Shawn Boburg’s reporting includes experiences of both a citizen requester and the reporter. Copies are still furnished at a commercial establishment and for a fee — exactly as described by the Office of Open Government January 29 opinion as an “egregious” violation of D.C. open records laws.

Calling the agency “woefully out of compliance” with the District’s Freedom of Information Act (FOIA), the D.C. Office of Open Government issued an opinion Friday (29) finding the Department of Consumer and Regulatory Affairs (DCRA) failed to post records of building permits required to be available free online. Instead, according to the opinion, the agency disobeyed the law two ways, first by requiring an ANC Commissioner asking for a copy of a permit file to submit a FOIA request, then sending it to be processed by a private copy service that could charge its own fees.   

Mandatory disclosures are part of the D.C. FOIA intended to make a wide range of agencies’ records readily available at no charge, without burdening the public with details of formal request.  Included are 10 kinds of information such as agency decisions, rules, contracts, staff salaries and more; online access applies to records created since 2001.

Advocates have noted for years that agencies commonly ignore the law.  See, for example, a study of 54 agencies in 2009 by the D.C. Open Government Coalition and the Investigative Reporting Workshop at American University finding required records were posted less than half the time.

The Open Government Office opinion quoted the agency head saying “no one on her staff was aware” of the mandatory disclosure part of D.C. FOIA, but the opinion dismissed that explanation as ”unpersuasive” since it was “inescapable” that the executive (as former chief lawyer for an agency with a high volume of FOIA requests) ”would not be keenly aware of the provisions of FOIA.” 

The opinion also called “implausible” similar claims of ignorance by the agency FOIA officer. 

The opinion did acknowledge staff were “candid” in voicing concerns about the “antiquated IT infrastructure, especially the rigid legacy systems” at the agency. System shortcomings appear to be the root of the agency failure to post permit files online, as well as reliance on an outside company to store and copy permit files for requestors.

That company operates without a contract and charges unregulated fees—a situation the opinion called “most egregious.”

The opinion noted the “predicament that is not unusual” in D.C. government agencies with large records and obsolete systems—including the high cost of improvements.  The DCRA agency told the Open Government Office that system upgrades and data migration to cope with permit files (plans, blueprints, etc.) of just the last three years will cost $1 million.

To address the “systemic failures that have coalesced” to keep the agency from obeying the law that permit records since 2001 be online, the Office opinion recommended details of new systems, procurement of outside services with proper contract procedures, and “an extremely aggressive agency-wide FOIA education and training program.”

The opinion was issued pursuant to the statutory authorization for the Office to issue advisory opinions on D.C. agencies’ implementation of the D.C. FOI statute.