Good News on Reduced Backlog of D.C. FOIA Appeals; Broader Performance Improvement Is A Work in Progress

Fritz Mulhauser | July 2, 2023 | Last modified: July 19, 2023

The tsunami of backlogged FOIA appeals—challenges to D.C. agencies’ public records request delays and denials—may have crested, with only 39 unresolved cases reported to the D.C. Council as of June 2, a figure far below the 307 at last year’s oversight hearing, 237 in an official report in September and 108 at this year’s oversight.  

The D.C. Open Government Coalition has tracked the high volume of incomplete appeals, reported the data in repeated Council testimony (this year, here and here), and requested reassignment of the task, a crucial alternative to costly and time-consuming court challenges given the high error rates discussed below.

The Mayor’s Office of Legal Counsel (MOLC) that decides the appeals has for several years apparently put aside the undramatic work needed to investigate charges of agency mistakes with records requests, preferring instead the higher-profile and urgent work assigned by D.C. Mayor Muriel Bowser.

In testimony over the last few years, public and Coalition witnesses told of delays as long as 600 days (appeals by law must be decided in ten days) and unresponsiveness of the MOLC to requests for data that would have exposed the situation.

The committee budget reports for this year (FY23) and next year (FY24) responded to community concerns. Both direct the office to do its work on time and report quarterly. The new data is the first response and came in a letter from the MOLC Director, Eugene Adams, to Council member Anita Bonds (D-At Large), chair of the Committee on Executive Administration & Labor.

The Open Government Coalition obtained the letter by a Freedom of Information Act (FOIA) request to the MOLC.

Fast and free appeals are necessary since agencies’ slow processing and questionable decisions on FOIA requests are common—MOLC attorneys have found errors such as excessive delay, incomplete searches, and incorrect exemptions and redactions, requiring corrective action in a third to a half of the cases they decided in recent years.

The sad facts of D.C. FOIA performance are:

• Delay – in 2021-22, the last year with complete data, 4,800 agency responses (almost 40 percent of the 12,200 processed) were late, beyond the 15-day deadline, with more than half beyond 26 days. The 1,800 still unanswered at year’s end last September had waited an average of 50 days and some over 300. 
• Denial — requesters got what they asked for less than half the time: D.C. agencies last year denied 6,500 requests (53 percent) in whole or part or found no records.

Better data would be an excellent first step towards a culture of performance built on regular monitoring and focused improvement. D.C. agencies have repeatedly refused Coalition requests for processing details other than a slim annual report by the mayor.

Especially for the legislative branch, the D.C. Council, data could be more forthcoming. The MOLC had notice since April 2022 of the required quarterly reporting on backlogs, with the first due at the end of the first quarter in December 2022, yet only after a reminder in February 2023 oversight hearings and further delay did the executive submit the June 2 letter, months late and still lacking some requested details.

Improved performance doesn’t require all-hands-on-deck effort; the FOIA request processing workload varies enormously by agency, so quality control energy can readily be targeted:

• 40 percent of FOIA requests last year went to three D.C. departments (Police, Fire & Emergency Medical Services, and the former Consumer & Regulatory Affairs), while two-thirds of the 80 agencies got one a week or fewer;
• end-of-year backlogs were also concentrated: 63 percent at four agencies (Energy & Environment, Police, Fire & Emergency Medical Services, and Employment Services).

The Open Government Coalition has urged the Council to:

• strengthen attention to FOIA timeliness and zero-defect performance by agencies and the MOLC;
• consider technology and staffing enhancements that may be needed in agencies and for oversight; and
• update the law (not significantly modernized in decades).

Neither the executive branch nor the Council has an office or committee that oversees FOIA (as other states do with special legislative committees, independent bodies, or units within offices of attorneys general). The Coalition has recommended that the Council charter an independent commission (of executive, Council, and community experts) to take a first look and suggest basic changes to bring the open records system into the digital age.

Drop us a line at info@dcogc.org if you have ideas for improving public access (or need help getting D.C. records).