1. FOIA Denial Letters Project: Status and Results May 20, 2010 James A. McLaughlin* Chairman, Legal & Enforcement Committee D.C. Open Government Coalition *Associate Counsel, Washington Post Media. Any opinions expressed in this presentation are my own, and do not represent those of The Washington Post.

2. 2 Overview  We made the same FOIA request to 34 D.C. agencies  “All FOIA denial letters, from Jan. 1, 2005 to present”  Requested in Dec. 2009  Direct support in the statute: “Each public body of the District of Columbia shall maintain a file of all letters of denial of requests for public records. This file shall be made available to any person on request for inspection and/or copying.”“Each public body of the District of Columbia shall maintain a file of all letters of denial of requests for public records. This file shall be made available to any person on request for inspection and/or copying.” -- D.C. Code § 2-533(b) (emphasis added) -- D.C. Code § 2-533(b) (emphasis added)

3. 3 Purpose of the Project  Not originally intended as an “audit” of agency performance  Simply wanted to see how FOIA exemptions are being applied in practice  But it ended up shedding light on agencies’ varying approaches to FOIA

4. 4 Agency Performance  We thought this would be an “easy one” for the agencies:  No question as to whether the records are public (see § 2- 533(b))  No difficulty in locating the records – agencies are supposed to “maintain” them in a file for public inspection upon request  5-year time period consistent with DC General Records Schedule  General Records Schedule 14, Item 16(3)(a): Letters denying FOIA requests, in whole or in part, must be retained for 5 years if no appeal. (If there is an appeal, there are additional time periods triggered by the date it is resolved.)

5. 5 Agency Performance: Timeliness  DC FOIA requires initial agency response within 15 business days (§ 2- 532(c))  Most complied with that deadline  28 of 34 agencies met the deadline  Two responded soon after (w/in two weeks)  Four did not respond at all until prompting

6. 6 Agency Performance: Scope of Search  Slightly more than half (18 of 34 agencies) searched the entire requested time period  Two asked that we narrow the time period (we did)  But a significant number of agencies – about 10 –didn’t search the entire time period:  E.g., provided letters from 2007, but not 2005-06  Some did so with no explanation; others said the records had been lost or destroyed; others said it was an unreasonable request

7. 7 Agency Performance: Completeness of Response  Each year, the D.C. Office of the Secretary is required by law to provide a detailed report on FOIA  Based on information directly from the agencies.  Includes the number of requests, denials, appeals, etc.  We compared the number of denial letters we received from each agency with the numbers in the Secretary’s report

8. 8 Completeness (cont’d)  The results varied dramatically  About half (16 of 34) gave us about the number of denial letters cited in the Secretary’s report  Six provided exactly the reported figure  Ten provided close to (plus/minus 5) the reported figure  Other agencies didn’t perform as well  Five agencies gave us significantly more denial letters than reported for that time period  Others provided significantly fewer  E.g., the MPD gave us 113 denial letters, but reported 1,024 for the years in question (2008-09)

9. 9 Agency Performance: Redactions  Another area of inconsistent practice  12 agencies redacted the identities of the FOIA requesters  One said it would be a “clear violation of the Privacy Act” not to redact that information  17 agencies did not redact that information  With very rare exceptions, the fact that a person submits a FOIA request is not “private” information to be exempt from disclosure

10. 10 Agency Performance: Fees  This was a bright spot  All but one agency granted the Coalition’s request for a fee waiver in the public interest  The one that didn’t charged a fee of $15

11. 11 Conclusions  Clearly room for improvement :  Lack of uniform/consistent practices  Delays  Incomplete/inadequate searches, even for records that should be easy to locate  But overall, most agencies worked with us in good faith and were reasonably prompt and responsive.  Two exceptions warrant mention:  One agency never responded at all (Homeland Security & Emergency Mgmt. Agency)  One agency (Office of the CFO) failed to respond at all for 90+ days, and didn’t provide any records until today, May 20, after a lot of back- and-forth. Today’s production consisted of only two denial letters, both from 2008. (We had agreed to narrow our request to 2008.) There were 24 FOIA denials by CFO in 2008, according to the Sec’y report.  The project is ongoing. Goal: educate the public and District officials, and ultimately enhance open government in DC.