Expanded explanations and background which may be useful in understanding and implementing these recommendations.
I. Mayor’s Transparency Initiative
Although the proposed FOIA legislation can, and should, strengthen the role of the Office of Open Government (OOG) on overseeing FOIA, the mayor can take numerous concrete, immediate steps that would demonstrate the new administration’s commitment to open government:
Declare that disclosure is the default: D.C. Code § 2-531 states:
The public policy of the District of Columbia is that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees. To that end, provisions of this subchapter shall be construed with the view toward expansion of public access and the minimization of costs and time delays to persons requesting information.
Experience at the federal and state levels, here and nationwide, demonstrates the need for a top-down approach to implement that policy and overcome a culture of non-disclosure in the District.
Including transparency metrics among criteria for assessing overall performance: The goals of the Mayor’s Transparency Initiative are improved public understanding, civic engagement, and government responsiveness to community needs; and reductions in associated labor and financial burdens on public bodies. Compliance with these directives will reduce the number of information requests, processing time per request, and potential litigation costs.
Fulfills the requester’s preference with regard to record format: When public bodies predominantly maintained paper record systems, the format in which they disclosed records was not a significant issue. As government increasingly collects and maintains records electronically, the format in which it discloses records grows in importance. Requesters frequently seek access to government records to analyze policy and performance issues. If a public body refuses to provide responsive records in machine-readable formats, it may thwart effective analysis or make the cost of analyzing data prohibitive.
Promotes Affirmative Disclosure: Technological innovations and new forms of electronic record-keeping and communication create opportunities for public access to governmental records but are not without challenges. When called to task for failing to comply with open government laws, agency heads often argue that they lack personnel, technical expertise and funding to comply. Working together, the OOG and OCTO can provide technical resources and training to help public bodies overcome these obstacles. The transition from paper to electronic record-keeping systems presents opportunities to further reduce the burden of complying with open government laws. A simple good-government step is to ensure that the OOG has a seat at the table when the District considers technology upgrades that implicate public records, so that access issues can be raised at the front end, when the cost of resolving those issues is the smallest. Failure to consider these open government issues during system development can necessitate expensive remediation and prompt FOIA litigation.
Delegating Administrative Appeals authority to the OOG: The mayor should delegate her authority under FOIA “to review the public record to determine whether it may be withheld from public inspection.” D.C. Code § 2-537(a). This is permissible under the D.C. Code. “The Mayor may delegate any of his functions . . . to any officer, employee, or agency of the executive office of the Mayor, or to any director of an executive department who may, with the approval of the Mayor, make a further delegation of all or a part of such functions to subordinates under his jurisdiction.” D.C. Code § 1-204.22(6). Indeed, this authority over FOIA administrative appeals has been delegated in the past to the General Counsel. See Mayor's Order 2005-98. Vesting the OOG with the authority to decide FOIA appeals would send a powerful message about the Office’s role in deciding open government issues, but also benefit the mayor’s office by shifting that at-times controversial function to an independent agency.
Directing agency compliance with OOG rulings in administrative appeals: Although by statute OOG opinions are “advisory,” D.C. Code. § 2-593, the mayor should direct government agencies to comply with OOG interpretations of FOIA issues. This would reduce disparities in FOIA results between agencies (and within the same agency) and contribute to a more uniform application of FOIA across the government. As part of the same OOG portfolio — establishing a voice on FOIA issues in the District — the Office should be encouraged in appropriate cases to file amicus briefs in litigated FOIA matters, either in support of requesters or in support of the District as may be appropriate.
Initiating a mediation program: This model has worked well at the federal level in the Office of Government Information Services since 2009. That office, with a small staff, provides non-binding mediation to resolve disputes between FOIA requesters and federal agencies. States, including Pennsylvania, Connecticut, Florida and Illinois, have similar mediation programs. This approach could significantly reduce the number of administrative and judicial appeals.
Directing the OOG to make recommendations regarding a fee schedule: All too often, search, duplication and review fees authorized by D.C. Code § 2-532 (b-1) are imposed in an inconsistent manner both within and among agencies. The mayor should adopt a more uniform approach to calculating fees, a broader fee-waiver provision, and allocating fees collected from requesters to offset the cost of open government training. The mayor should consider changes to existing law regarding recovery of attorney fees and imposing sanctions for non-compliance:
- To ensure greater uniformity of fees charged for processing FOIA requests, the OOG should be authorized to set a schedule of fees applicable to all agencies.
- The OOG-established fee schedule shall be posted on each agency’s website along with instructions for making FOIA requests.
- The fee-waiver provision of D.C. Code § 2-532(b), which provides that public bodies may furnish documents without charge or at a reduced charge “in the public interest because furnishing the information can be considered as primarily benefiting the general public,” should be expanded to read:
Documents shall be furnished without charge or at a reduced charge where a public body, the Mayor, the Office of Open Government, or a court determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public, a community, or a neighborhood. Furnishing information pursuant to D.C. FOIA requests made by representatives of the news media shall be presumed to be in the public interest as primarily benefiting the general public.
- Adopt the definition of “representative of the news media” in 5 U.S.C. § 552(a)(4)(A)(ii), which includes:
any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. In this clause, the term “news” means information that is about current events or that would be of current interest to the public. Examples of news-media entities are television or radio stations broadcasting to the public at large and publishers of periodicals (but only if such entities qualify as disseminators of “news”) who make their products available for purchase by or subscription by or free distribution to the general public. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A freelance journalist shall be regarded as working for a news-media entity if the journalist can demonstrate a solid basis for expecting publication through that entity, whether or not the journalist is actually employed by the entity. A publication contract would present a solid basis for such an expectation; the Government may also consider the past publication record of the requester in making such a determination.
- Revenue from FOIA compliance: All fees collected under FOIA should be maintained in a segregated account and designated for training of FOIA officers and operation of the OOG.
- Strengthen attorney fees: The District asserts in litigation that plaintiffs are entitled to recover “attorney fees and other costs of litigation” under D.C. Code § 2-537(c) only if a court orders the production of withheld records. If the District releases previously withheld records after litigation commences but before a court orders disclosure, the District takes the position that the plaintiff is not entitled to fees. Section 2-537 should be amended to add language from the federal FOIA 5 U.S.C. § 552(a)(4)(E)(ii), modified to conform to the D.C. Code language as follows:
“For purposes of this subsection, a person prevails in whole or in part in such suit if the requested information has been disclosed either through a judicial order, an enforceable written agreement or consent decree, or a voluntary or unilateral change in position by the agency, if the complainant’s claim is not insubstantial.”
- Strengthen sanctions for noncompliance: D.C. Code § 2-537(d) provides that a “person who commits an arbitrary or capricious violation” of FOIA is guilty of a misdemeanor subject to a fine not to exceed $100. This provision has never been enforced. A two-part sanction would likely be more effective: administrative penalties for arbitrary or capricious withholding and criminal penalties for willful withholding, with the requester able to obtain discovery in a FOIA action to determine willfulness. For example, § 2-537(d) might be replaced as follows:
(d)(i) If the court, in litigation under this subchapter seeking the release of information, or if the Office of Open Government determines that an employee of any public body has failed to comply with the provisions of the subchapter in an arbitrary or capricious manner, the matter shall be referred to the head of that public body for the initiation of an administrative sanctions proceeding that may result in reprimand, suspension, or termination of the employee based upon the degree of egregiousness of the noncompliance.
(ii) Any person who is responsible for the willful withholding of records requested under this subchapter shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $1,000.
(iii) In an action brought to require disclosure of information under this subchapter, the court shall, upon motion by the plaintiff based upon a reasonable showing that the person responsible for withholding acted willfully, allow discovery of facts relevant to the determination of the willfulness of such action. Should the court determine that the withholding was willful, it shall refer the matter to the D.C. Attorney General for prosecution under clause (ii) of this subsection.