Sign the Letter to the D.C. Council: Reinstate Deadlines for Public Records Access

Fritz Mulhauser | September 16, 2020 | Last modified: September 23, 2020

UPDATE 9/23/20 — The D.C. Council yesterday (22) extended the emergency legislation until December 31. The Council chairman, Phil Mendelson, in a pre-session memo said “it is my intent to revisit certain provisions of the Coronavirus Support Amendment Act that are currently tied to the duration of the public health emergency and to consider that legislation before the end of the Council Period.” Council staff approached about the FOIA deadline problem expressed interest this week in learning more and discussion of an amendment is continuing.

The D.C Open Government Coalition and others are asking the D.C. Council to put back in place the deadlines for government agencies’ action on requests for public records and appeals of denials. If you share the concern, read and sign the letter soon, at the Action Network website here.

Other signers include ACLU of DC, Advocates for Justice and Education, DC Kincare Alliance, Legal Aid Society of DC, attorneys at the law firm of Terris, Pravlik & Millian, LLP, and the Washington Lawyers Committee for Civil Rights and Urban Affairs.  

The Council in March paused Freedom of Information Act (FOIA) deadlines for the period of the health emergency. That law continues in effect until October 9 and is likely to be extended.

Previously, the law required records to be released within 15 days and appeals of denials to be decided within 10 days. A requester denied prompt action had a legal right to appeal to the mayor and to challenge the delay in court.

Council action suspending those deadlines (without saying so in so many words) effectively allowed D.C. government agencies to process requests however they wished. Delay now has no legal effect, even if records remained accessible to staff working remotely and offices had enough people to review records for release.

Agency processing delays have been common for years. Three thousand requesters in 2019 (28 percent of the total) waited more than 15 days and half of them more than 26 days, according to the mayor’s most recent FOIA processing report.

But processing has slowed further in some agencies since March, according to reports to the Coalition from community organizations, attorneys and media, with some officials even writing openly, “no reply until the emergency ends.”  

Judicial Watch filed suit in July asking the D.C. Superior Court to review three agencies’ delays. Appeals are slower as well, though compared to 10,000 requests annually they are a small workload (only about 250 per year in 2019, or five per week). A Coalition appeal filed weeks before the emergency took 223 days to be decided; a second has been pending 79 days.

With more and more requests parked in line on the processing runway, searches and reviews will not take off on time for months to come. The backlog reached almost 1,500 on September 1, according to D.C. government FOIA portal data obtained by the Coalition (which doesn’t account for a fifth or more of requests submitted directly to agencies as most media requesters do). With a month left in this fiscal year, that’s already one-third more than the full 2019 end-of-year backlog of about 1,100 the mayor reported.

Muckrock, an organization that helps FOIA requesters nationwide, reports that their experience shows “many of the 50 largest cities have dropped their emergency orders, but more than a third are still telling requesters that COVID may cause delays in their records requests.”  

Join with us and the group asking the Council to reinstate D.C. FOIA deadlines. Appeals and litigation can always consider special reasons for delay in individual agencies and requests.