Decisions by the Mayor on D.C. FOIA Appeals Now More Accessible

dcogcadmin | June 18, 2016

A decade of mayoral opinions on appeals of agency denials of public records requested under FOIA (2006-2016) are now available online. See here. (The D.C. Office of Open Government also includes a link in its FOIA Resources list.)

D.C. law allows any requester who is denied a record to appeal to the mayor. (The requester can file suit in Superior Court whether or not the requester uses the mayoral appeal option.)

The mayoral appeal is easy–no fee is charged and no attorney is needed as no elaborate briefing is required. The mayor takes a fresh look at the situation in each appeal.  There is no deadline for filing; and decisions are supposed to be fast (within 10 days). 

The resulting opinions are public records but were until now published irregularly and not readily searchable, buried in issues of the official publication of both the executive branch and the D.C. Council, the D.C. Register (formerly printed every Friday but now an online publication of the Secretary of the District of Columbia).

The Coalition has asked officials repeatedly to improve public access to the opinions (and published its own archive some years ago) so the new collection is welcome progress.

The FOIA opinions decide whether a D.C. government agency acted within the law in its handling of a request–processing it promptly, searching adequately to locate the requested records, and applying correctly any claimed exemption such as for personally identifiable information or police investigative materials.

Written by staff attorneys in the Mayor’s Office of Legal Counsel, opinion letters explain the request and the agency response, agency interactions with the requester (often comical) and any investigation. The decisions are simply the mayor’s interpretation of the law and have no binding legal effect (and, as there is no formal enforcement mechanism, sometimes appeal opinions are even ignored by the agency involved).

But they’re at least a starting point for requesters and attorneys considering further challenge in court.   

Data in the mayor’s annual FOIA reports has shown in recent years that appeals are uncovering a rising volume of errors in agency FOIA decisions. In 2015 about 40 percent of decided appeals ended with the mayor’s office overturning agency actions and sending the request back for corrective steps (more search, different redactions, narrower exemption claims). The error rate in 2013 was 33 percent. Better availability of past opinions pointing out agency errors may encourage more of those with denials to do a bit of research and file an appeal.