Deadlines Are Reinstated for D.C. Public Records Requests – But Some Agencies Didn’t Get the Memo (At Least Not Without Coalition Prodding)
Fritz Mulhauser | January 26, 2021 | Last modified: January 27, 2021
Information on Freedom of Information Act (FOIA) deadlines has been incorrect for weeks on the main website used by thousands submitting public records requests to over 50 D.C. agencies. The D.C. Public Schools (DCPS) also put incorrect deadline information in a standard form letter acknowledging a new request.
Both texts misled the public. They warned requesters to expect indefinite delay legislated by the Council. But that’s ancient history, according to new D.C. Council legislation in December that took effect January 15.
Reversing the Council’s emergency action last March, the new law requires agencies once again to respond in 15 days and the mayor to decide appeals in 10 days. The mayor signed the law December 22 and it took effect January 15.
The only exceptions:
- agencies have 45 more days (after January 15) to clear backlogged requests (those filed from March 2020 to January 15); and
- agencies may postpone until 45 days after the emergency any new requests that require an “on site” search that could pose a risk to health or safety.
In response to D.C. Open Government Coalition inquiries about the incorrect deadline information, officials at DCPS and the technology office that manages the FOIA portal said they would “look into it.” Knowledge of the new law seemed to be percolating slowly so each needed to check with the mayor’s office.
Both officials later acknowledged their published information had been incorrect and said their web and mail communications would be updated to reflect the new law. The FOIA portal information was correct when we checked late Monday (25).
Websites of three other D.C. agencies with major FOIA workloads (police, Consumer and Regulatory Affairs, Fire and Emergency Medical Services) have correct deadline information on their websites’ FOIA pages.
The Coalition has asked the D.C. Office of Open Government to work with the mayor’s office to issue an alert to all agencies to both follow the updated FOIA deadlines and properly inform the public.
Delays will remain likely
The last ten months have seen an all-time high in backlogged requests—over 3,000 in late January according to data provided by the Office of Open Government. These resulted after the Council suspended FOIA deadlines in March 2020 on the argument that agency staff should focus on emergency response without facing appeals or lawsuits about FOIA requests.
D.C. was unusual in formally closing the door on records access. Few governments in states or cities elsewhere took such a step though delays have been common, according to a survey last year by the New York Times. The Times editors warned about the problem last May, eight months before D.C. restored access: “While the work of government continues, citizens are losing a fundamental right to transparency. That’s a threat to good government and democracy.”
Public, press and attorney requesters who had petitioned the Council for change were looking forward to the return of “business as usual” January 15. However, delayed responses will probably still be common. In 2019 (the last year of full data), 27 percent of the 10,735 requests processed waited for longer than the 15 days allowed in the law according to that year’s FOIA report by the mayor.
FOIA management needs closer attention
The new year 2021 would be a good time for a fresh look at D.C. FOIA processing and its management. The Open Government Coalition has noted in testimony many times that the District of Columbia lacks a FOIA focal point in the executive branch.
That would be an office with authority to oversee agencies’ responses to requests, as well as proactive publishing without requests (also required by the FOIA law but widely ignored).
Such an office should assure that
- agencies provide adequate staff and information technology,
- staff apply the law correctly, and
- searches and reviews meet processing deadlines.
Targeted improvement efforts should rest on analysis of data that signal sources of mistakes. Half of decided appeals overturn agency decisions and require rework — what went wrong in search or review? When the District lawyers have to go to court to defend agency decisions, why are the cases so weak, apparently, that more are lost or settled than won? These facts are clear in official annual reports submitted to the D.C. Council. Yet it is apparently no agency’s job to look at these critical indicators and direct improvement projects.
The Open Government Coalition is planning to submit a set of improvements in the D.C. Freedom of Information Act in this Council session. If you have ideas for improving the process, let us know at email@example.com.