D.C. Agencies Delayed and Denied Thousands of FOIA Requests in 2022

Delay and denial were again the everyday experiences of requesters seeking government records in the District last year, according to official data just released. The Open Government Coalition has emphasized the figures—40 percent late, over half not found or denied—in D.C. Council oversight testimony this spring urging attention to agency performance of obligations in the local Freedom of Information Act (FOIA).

The annual data report (required by law on February 1 covering the prior fiscal year, but chronically late, like so much else in FOIA) shows 14,000 requests available for processing in 2022—11,500 new ones and 2,500 left over from the year before. (All figures rounded.)  

About 80 D.C. government agencies reported they processed 12,200 and left 1,800 unanswered last September 30. This was marked improvement over the pandemic years of 2020 and 2021 when the mayor sent staff home, the Council suspended processing deadlines, and the annual backlogs reached 2,500 and 3,000.

Processing Delays

As school children returned to classrooms in 2021-22, D.C. agencies’ FOIA staff acted more like it was still a COVID slowdown: they answered 4,800, or almost 40 percent, late, beyond the 15-day deadline (more than half beyond 26 days)—slightly worse than the 38 percent late in the deep COVID days of FY21. The 1,800 backlogged had waited on average 50 days and some over 300.  

Across the 80 agencies receiving requests, activity varied greatly:

• Five thousand new requests, 40 percent of the total, went to three departments (Police, Fire & Emergency Medical Services, and the former Consumer & Regulatory Affairs). Their work generates records often needed later, such as for court, treatment, or business. 
• Of the other agencies in the D.C. government, two-thirds received fewer than 50 requests (nine got none at all). That’s about one a week. FOIA critics, such as officials of the D.C. Council and the Charter School Board, stress burdens. But their in-boxes seem manageable—40 and 35 requests, respectively. And big requests can be handled piecemeal, as sympathetic courts usually allow.
• Other metrics also show agency variation. For example, the end-of-year backlogs were concentrated: 63 percent were at four agencies (Energy & Environment, Police, Fire & Emergency Medical Services, and Employment Services).

Agency Response

Requesters got what they asked for less than half the time. The Coalition receives countless inquiries from the public each year about such adverse answers—6.500 responses last year denying requests in whole or part or finding no records.

Officials in governments nationwide complain about frivolous or even “vexatious” requests though solid evidence of that has not come up in general discussion, appeals, or lawsuits in the District. (The appeals office did handle 25 appeals in 2022 from one requester and upheld all the agency denials on grounds the requests were not for records but were questions.)

So are adverse decisions correct? In D.C. there is no FOIA headquarters that checks even a sample of responses for quality. And mistakes are predictable: the law has a dozen complex exemptions briefly listing contents of records that can be denied altogether or redacted.

Two exemptions protecting privacy were invoked 3,600 times in agency denials last year. But experts struggle to explain, beyond simple examples such as a Social Security number or medical facts, what records should be protected as “an unwarranted invasion of personal privacy” and how at the same time to balance the public interest in knowing what the government is up to. D.C. exemptions are copied from federal law and every one has been interpreted repeatedly in hundreds of court cases, mostly unknown to overworked staff with modest training.  

Appeals

A surprisingly small number of those frustrated by delay or denial file appeals—the method provided in the FOI law to ask the mayor to review agency action quickly, at no charge, and with no legal briefing or attorney argument needed.

The appeal data for 2022 are not as complete as on initial processing but the Mayor’s Office of Legal Counsel summarizes each appeal in a few sentences in a log included in the annual report of the mayor, and these can be parsed for some insights. The data show 210 appeals closed, about a third without investigation or opinion, simply as “mooted” by agency corrective action.

But 137 appeals got decisions. Of those, 45 or one-third were decided against the agency because of one or more mistakes in searching or reviewing records. The office returns those to the agency with a written opinion requesting corrective action (new search, fewer redactions, etc.). Appeal opinions are required by the FOI law to be published (but are not); another gap in the law is that there’s no enforcement process for successful appeals (other than going to court), and no data collected to track their treatment by the errant agencies.

Our experience may be illustrative: MPD officials testified about their investigation of a 2020 mass arrest of protesters “violating curfew” on Swann Street, N.W., in the weeks after George Floyd’s murder in Minneapolis and nationwide protests. Police said their own findings showed police action was justified, contrary to the view of the D.C. attorney general (who never prosecuted anyone from that night), the media, and the ACLU of D.C. who saw poor police judgment. After community inquiries, the Coalition requested a copy of the MPD report of its investigation in March 2021. The agency has never responded—even after our appeal, which was upheld and remanded for action seven months ago.  (After this post was published, MPD did respond with the redacted report, 525 work days after the request. The Washington Post had the police material from its own FOIA request and Peter Hermann reported it Thursday (20) saying “Much of what happened during the arrests remains in dispute.”)

Which agency draws the most appeals? The MPD, with 64 in 2022. Five others had nine or ten appeals each (Child & Family Services, Consumer & Regulatory Affairs, Transportation, Employment Services, and the Mayor’s Office), and 37 other agencies each had a few. The 45 successful appeals like ours, where the mayor’s office found delays or mistakes requiring correction, originated in 22 agencies, but half were concentrated in three (Police, Employment Services, and Advisory Neighborhood Commissions (ANCs)). The Coalition has repeatedly called for investment in ANC records management to help those mini legislatures effectively respond to FOIA requests (totaling 31 in 2022).

Litigation

The attorney general reports yearly on court cases where government attorneys defend agencies’ FOIA decisions challenged in civil lawsuits in D.C. Superior Court. The days of multiple cases dragging on for years, mostly by the police union, are a distant memory; all but a handful of the 29 cases reported as active during 2022 began in 2020 or since. More organizations (17) than individuals (12) sue. Most suits target MPD – half the cases; the mayor’s office was next, sued three times.

The tiny handful of individual requesters that manage to sue on FOIA complaints suggests the importance of alternatives like the mayoral appeals process, where a dispute over a request should be heard fast and for free, according to the law. Sadly, that process is backlogged again after last year’s 300-case queue, with over a hundred pending appeals reported to the Council in February 2023.

Those who can sue seem to win, as courts find agency mistakes and order remedies. Of 10 closed cases, seven requester plaintiffs won various relief in settlements and verdicts. Of 19 ongoing cases, plaintiffs in eight have already won partial relief and may yet win more as the cases continue. The District in 2022 paid almost $30,000 to cover the winners’ attorneys’ fees, as the FOIA law allows, which is a good incentive for more attorneys to take on such cases—considering the thousands who get no answer or an adverse one they might like to challenge if legal help were available.

Improving FOIA management in error-prone agencies would not only benefit requesters but would improve risk management by saving the costs of the time of government attorneys and payments to winning attorneys (reaching $134,000 in one case seeking ANC records a few years ago).

Lessons in the Data

The annual data in the reports discussed here could allow officials to look for patterns and analyze how the system works. (Not in their present form, as the reports are barebones, each covering only one year and without analysis.) But if D.C. had an empowered FOIA oversight office, it could use the data to identify agencies with the most pressing challenges, based on familiar quality control ideas — where there are concentrations of delays and mistakes. Then resources could be added such as surge staffing so backlogs don’t linger, training on specific problems surfaced in error rates, or better technology for the choke-point of redaction. (Maybe GPT-4 can help.)

In years of observation, the Coalition has yet to see such a performance mindset. Government officials rarely if ever bring up FOIA performance generally to the Council or at individual agencies’ oversight. The Office of the Chief Technology Officer that maintains the incoming request log refuses data requests such as the Coalition’s to track backlog. And the annual data report used in preparing this overview missed the February 1 statutory deadine, arriving on March 16, two weeks after the year’s Council oversight hearings ended.

D.C. law and practice thus leaves FOIA management to individual agencies that have small incentive to devote scarce resources to public records requests. Other states establish a central focal point, such as in the attorney general’s office or a FOIA commission, to oversee the law, learn from appeals and litigation, and assure there are the records management, staff and capital budget needed for effective public access.

The Coalition is developing a comprehensive proposal to update D.C. law on public records, meetings, and data. If you have ideas for FOIA improvements, write us at: info@dcogc.org.