New Data on D.C. Public Records Requests Show Backlog Mounting – Could Last for Months

Fritz Mulhauser | October 7, 2020

Backlogs have grown to almost double last year’s as DC agencies fail to keep up with public requests for records under the D.C. Freedom of Information Act during the pandemic, according to new figures obtained by the D.C. Open Government Coalition.

Statistics released to the D.C. Council by the mayor’s office show almost 2,000 requests remained unanswered September 24—half of the 4,100 filed since March 11 when the Council lifted response deadlines. The number is double the backlog in September 2019.

The latest interim figures came in a bundle of executive answers to Council questions. Council member Brianne Nadeau (D-Ward 1) asked specifically about the FOIA backlog.

Advocates have been gathering signatures on a request to the Council to restore the 15-day deadline for FOIA requests. The D.C. mayor’s office would likely accept such a move. “The need for not responding according to the pre-pandemic statutory timelines is diminishing,” the office said in a statement accompanying the data.

The backlog of incomplete appeals is also large, 83 of the 267 submitted to the mayor’s office this year by requesters challenging agency FOIA delays or denials, according to the mayor’s office.

The executive response also indirectly criticized D.C. agencies that have used the suspended deadlines as permission not to respond.  “Allowing deadlines to adjust due to the public health emergency does not limit an agency from responding… [A]gencies are well aware of their duties to attend to FOIA requests regardless of the needed flexibility afforded by emergency provisions.”

The statement did not describe any immediate action to catch up. Requesters using D.C. FOIA have commented for years that longstanding patterns of agency delays or mistakes in handling requests have not brought much oversight.

Complete suspension of deadlines as in D.C. is rare, a step that “dismayed” the Reporters Committee for Freedom of the Press in a national rundown of trends in public records access during the emergency. But delays have cropped up everywhere. The Washington Post headlined their account last Thursday (1), “Public records requests fall victim to the pandemic.” Nate Jones, the paper’s FOIA director, and Lori Aratani detailed examples of writers’ difficulties getting needed information from federal agencies and state and local governments around the country.  

In Virginia, where a 5-day response deadline is unchanged, the attorney general wrote the legislature this week (5) that nothing in state law allows localities to indefinitely delay FOIA processing just because they decide it’s non-essential during the health emergency.

Federal agencies’ 20-day FOIA deadline is also unchanged. When a few agencies, such as the FBI and Department of State, stopped FOIA processing altogether, with stuck requests dislodged only through litigation, it drew attention on Capitol Hill.  

In May, four senators wrote the federal FOIA overseer, the Office of Information Policy in the Department of Justice, about federal agencies’ unlawful delays. The letter, signed by Senators Cornyn, Feinstein, Grassley, and Leahy, warned “it is the Department’s duty to ensure that FOIA administration is not simply cast aside as a temporary inconvenience.” Their seven pointed questions echo themes of advocates’ concern here and elsewhere:

“To better understand how FOIA operations throughout the federal government have been impacted, and what specific steps OIP is taking to protect the public’s right to information, please provide numbered, written responses to the following questions by no later than May 29, 2020.

• 1) Please provide a list of agencies and departments that have limited in any manner their acceptance of FOIA requests or delayed processing of such requests due to the current crisis, along with OIP’s understanding of the specific reasons for such limitations and delays.
• 2) What specific steps has OIP taken to mitigate the impact of the pandemic on FOIA administration across the government? For example, has OIP, or the Department more broadly, issued any formal guidance to agencies regarding best practices for FOIA administration during the pandemic? If not, why?
• 3) Does OIP support the FBI’s decision to not accept electronic FOIA requests or send out electronic responses through its electronic portal during the pandemic? If so, please explain how the FBI’s decision is consistent with the FOIA statute.
• 4) Has OIP instructed agencies to be clear, candid, and transparent with requesters and the general public about any altered procedures or potentially diminished FOIA processing capabilities during the pandemic? Please explain.
• 5) What specific steps, if any, has OIP taken to encourage increased proactive disclosures by agencies during this time, which would reduce the necessity for individual request processing?
• 6) What specific steps, if any, has OIP taken during the pandemic to encourage the use and integration of technology into agencies’ FOIA processing protocols? And what specifically is OIP doing to ensure the continued functionality of the “consolidated online request portal,” as required by the FOIA Improvement Act of 2016?
• 7) Has OIP identified any specific logistical, technological, or other limitations, such as statutory constraints, that might be discouraging the timely processing of FOIA requests during this (or any future) pandemic or national emergency?”

Questions like these could be a start for the agenda of an interesting hearing in the D.C. Council on legislation advocates are proposing to reestablish deadlines and build back from slowdowns in public records access.

In D.C., the new data do show agencies managed to complete half of requests since March and issue opinions in 70 percent of appeals. Many hard-working staff deserve praise for good effort in hard times.

But the backlog, if it continues, will haunt D.C. government FOIA offices for months to come. The many undecided appeals mean errors have gone uncorrected (typically over half of appeals every year find agency mistakes that need rework). And meanwhile, who knows what valuable information remains under wraps. Public information is more important than ever in this time of stress and uncertainty, especially about the novel virus and government responses. If you have experience with delayed requests for public records in D.C., tell the Coalition about your experience at info@dcogc.org.