District of Columbia

Open Government Guide

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Author

Stephen J. Fuzesi, Esq.

A. Joshua Podoll, Esq.

WILLIAMS & CONNOLLY LLP
725 12th Street, N.W.
Washington, D.C. 20005
(202) 434-5000

Last updated August 2023

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Foreword

The first provision of the District of Columbia Freedom of Information Act of 1974, D.C. Code Ann. § 2-531 et seq. ("D.C. Act"), emphasizes the public policy of open government that underlies the law. The D.C. Act provides that:

"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."

D.C. Code Ann. § 2-531.

This provision was included in the D.C. Act "to make clear that any actions should serve the purpose of access and that any restriction on that access should be construed narrowly." Comm. on the Judiciary and Criminal Law, Report on Bill No. 1-119, the "D.C. Freedom of Information Act of 1975," at 6 (Sept. 1, 1976) ("Comm. on Judiciary Report"). This policy of openness requires courts to construe all exemptions narrowly and to resolve all doubts in favor of disclosure. Newspapers, Inc. v. Metro. Police Dep't, 546 A.2d 990, 993 (D.C. 1988); Barry v. Washington Post Co., 529 A.2d 319, 321 (D.C. 1987).

The D.C. Act has been the subject of few reported cases. See Vining v. District of Columbia, 198 A.3d 738, 743 (D.C. 2018); Kane v. District of Columbia, 180 A.3d 1073 (D.C. 2018); Vining v. Council of District of Columbia, 140 A.3d 439 (D.C. 2016); Fraternal Order of Police v. District of Columbia, 139 A.3d 853 (D.C. 2016); Fraternal Order of Police v. District of Columbia, 124 A.3d 69 (D.C. 2015); Frankel v. D.C. Office for Planning & Econ. Dev., 110 A.3d 553, 557 (D.C. 2015), as amended (Mar. 5, 2015); Fraternal Order of Police, Metro. Labor Committee v. District of Columbia, 82 A.3d 803 (D.C. 2014); Fraternal Order of Police v. District of Columbia, 79 A.3d 347, 360 (D.C. 2013); Riley v. Fenty, 7 A.3d 1014, 1017 (D.C. 2010); Doe v. D.C. Metro. Police Dep't, 948 A.2d 1210 (D.C. 2008); Wemhoff v. District of Columbia, 887 A.2d 1004, 1009 (D.C. 2005); Donahue v. Thomas, 618 A.2d 601 (D.C. 1992); McReady v. Dep't of Consumer & Regulatory Affairs, 618 A.2d 609 (D.C. 1992); Hines v. Bd. of Parole, 567 A.2d 909 (D.C. 1989); Washington Post v. Minority Bus. Opportunity Comm'n, 560 A.2d 517 (D.C. 1989); Wolf v. Regardie, 553 A.2d 1213 (D.C. 1989); Newspapers, Inc. v. Metro. Police Dep't, 546 A.2d 990 (D.C. 1988); Barry v. Washington Post Co., 529 A.2d 319 (D.C. 1987); Dunhill v. Dir., D.C. Dep't of Transp., 416 A.2d 244 (D.C. 1980). The D.C. Act, however, is patterned on and construed in accordance with the federal Freedom of Information Act, 5 U.S.C.A. § 552. See Barry v. Washington Post Co., 529 A.2d at 321. Thus, when litigating a question involving the D.C. Act, reliance upon applicable federal law is appropriate.

The Supreme Court has reaffirmed that there is no constitutional right of access to government records. McBurney v. Young, 133 S. Ct. 1709, 1712 (2013) ("The Court has repeatedly stated that the Constitution does not guarantee the existence of FOIA laws."). This position is deeply rooted in the Court's precedent. See, e.g., Houchins v. KQED, 438 U.S. 1 (1978) ("There is no constitutional right to have access to particular government information, or to require openness from the bureaucracy."). The Court has also asserted that there is no common law right to access such records. McBurney, 133 S. Ct. at 1718 ("No such right was recognized at common law . . . most founding-era English cases provided that only those persons who had a personal interest in non-judicial records were permitted access to them.").

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Open Records

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I. Statute

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A. Who can request records?

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1. Status of requester

Any "person" has a right to inspect or copy any public record not exempted from disclosure. D.C. Code Ann. § 2-532(a). The term “person” “includes individuals, partnerships, corporations, associations, and public or private organizations of any character other than the Mayor, the Council, or an agency.” D.C. Code Ann. § 2-502(9); see also D.C. Code Ann. § 2-539(a)(8) (providing that definition of “person” from § 2-502 applies).

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2. Purpose of request

The statute does not require a requester to state or explain the purpose of the request. The purpose of the request may be considered, however, in the context of certain exemptions. When privacy rights are pitted against the requester's interest in disclosure of information, a request for material may be more likely to fail if the requester is acting for "private" purposes. For example, the Mayor's office has ruled that when an individual seeks personnel files of police officers to use in a civil action against the officers, disclosure serves no public purpose that would outweigh the officers' privacy rights in the files. Emily Yinger, Esq. v. Metro. Police Dep't, FOIA App. No. 93-25 (Office of the Mayor, Oct. 5, 1994) (upholding the police department's invocation of the § 2-534(a)(2) privacy exemption); accord Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995); see also Fraternal Order of Police, Metro. Police Labor Comm. v. District of Columbia, 124 A.3d 69, 77 (D.C. 2015) (“The only relevant public interest in disclosure to be weighed in this [2-534(a)(2)] balance is the extent to which disclosure would serve the core purpose of the FOIA, which is contributing significantly to public understanding of the operations or activities of the government.”) (internal quotation marks omitted).

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3. Use of records

The fact that a person seeks information for a commercial use does not bar disclosure. See, e.g., Dunhill v. Dir., D.C. Dep't of Transp., 416 A.2d 244 (D.C. 1980) (fact that individual sought information to sell as mailing list of elderly citizens did not prohibit disclosure). However, D.C. Code Ann. § 2-534(a)(1), exempting disclosure of trade secrets and confidential commercial or financial information obtained from outside the government, assumes that the D.C. Act should not be used as a "private discovery tool." Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 522 (D.C. 1989).

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4. Can an individual request records on behalf of a third party or organization?

There appears to be no case law or statutory provision directly addressing this issue.

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B. Whose records are and are not subject to the Act

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1. Executive branch

The D.C. Act requires disclosure of records of any "public body." D.C. Code Ann. § 2-532(a). The D.C. Administrative Procedure Act, from which many definitions in the D.C. FOIA are taken, see D.C. Code Ann. § 2-539, defines a "public body" as including the Mayor, an agency, or the Council of the District of Columbia. Id. § 2-502(18A). "Agency" includes both subordinate and independent agencies. Id. § 2-502(3). "Subordinate agency" is defined as "any officer, employee, office, department, division, board, commission or other agency of the government of the District, other than an independent agency or the Mayor or the Council, required by law or by the Mayor or the Council to administer any law or any rule adopted under the authority of law." Id. § 2-502(4).

"Independent agency" is defined as "any agency of the government of the District of Columbia to which the Mayor and the Council are not authorized by law, other than this subchapter, to establish administrative procedures but does not include the several courts of the District and the Tax Division of the Superior Court." Id. § 2-502(5). Intergovernmental agencies would probably not be considered "agencies" for the purposes of the D.C. Act. See Latimer v. Joint Comm. on Landmarks, 345 A.2d 484, 486-87 (D.C. 1975) (construing § 2-502 definitions); KiSKA Constr. Corp.-U.S.A. v. Washington Metro. Area Transit Auth., 167 F.3d 608, 611-12 (D.C. Cir.1999) (holding that WMATA is not an agency within the meaning of the D.C. FOIA).

The Office of the Secretary (which has been delegated the authority vested in the Mayor to render final decisions on appeals under the D.C. FOIA) has issued an opinion concluding that an agency under the administrative control of a court-ordered general receiver is not an "agency" to which the FOIA requirements applied. See In re Appeal of Claire M. Riley, Matter No. 00-08806, 47 D.C. Reg. 6287 (July 24, 2000) (concluding that the Child and Family Services Division of the Department of Human Services was not an "agency" because it was under the exclusive administrative control of the court); In re Appeal of The Washington Post, Matter No. 00-105900, 47 D.C. Reg. 7229 (August 25, 2000) (same).

The D.C. Act applies to all "public records." D.C. Code Ann. § 2-532. The following records are specifically required to be disclosed under D.C. Code Ann. § 2-536:

The names, salaries, title and dates of employment of all employees and officers of a public body, except for those employees who participate in the Address Confidentiality Program;
Administrative staff manuals and instructions to staff that affect a member of the public;
Final opinions, including concurring and dissenting opinions, as well as orders, made in the adjudication of cases;
Those statements of policy and interpretations of policy, acts and rules that have been adopted by a public body;
Correspondence and materials referred to therein, by and with a public body, relating to any regulatory, supervisory or enforcement responsibilities of the public body, whereby the public body determines, or states an opinion upon, or is asked to determine or state an opinion upon, the rights of the District, the public or any private party;
Information in or taken from any account, voucher or contract dealing with the receipt or expenditure of public or other funds by public bodies;
Budget requests, submissions and reports available electronically that agencies, boards and commissions transmit to the Office of Budget and Planning during the budget development process, as well as reports on budget implementation and execution prepared by the Office of the Chief Financial Officer, including baseline budget submissions and appeals, financial status reports and strategic plans and performance-based budget submissions;
The minutes of all proceedings of all public bodies;
All names and mailing addresses of absentee real property owners and their agents. "Absentee real property owners" means owners of real property located in the District that do not reside at the real property;
All pending applications for building permits and authorized building permits, including the permit file;
Copies of all records, regardless of form or format, that have been released to any person under the D.C. Act and which, because of the nature of their subject matter, the public body determines have become or are likely to become the subject of subsequent requests for substantially the same records;
A general index of the foregoing records, unless the materials are promptly published and copies offered for sale.

See D.C. Code Ann. § 2-536.

Not specifically addressed.

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C. What records are and are not subject to the act?

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1. What kinds of records are covered?

The D.C. Act applies to all "public records." D.C. Code Ann. § 2-532. Public records include "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form or characteristics prepared, owned or used in the possession of, or retained by a public body." D.C. Code Ann. § 2-502(18); id. § 2-539 (adopting the definition of public record provided in § 2-502). Certain records are specifically required to be disclosed, see id. § 2-536, and some are subject to discretionary statutory exemptions, see id. § 2-534(a). Like the federal courts, at least one published opinion from a D.C. court has adopted a "control standard" instead of a "possession standard" to determine the definition of "agency records" when the records were not created by an agency. Belth v. Dep't of Consumer & Regulatory Affairs, 115 Daily Washington Legal Rptr. 2281 (D.C. Super. Ct. 1987) (holding that records created by the National Association of Insurance Commissioners and used by the Department of Consumer & Regulatory Affairs were covered by the D.C. Act because the documents were in the agency's physical and legal control, and used by the agency to regulate insurers); see also Kane v. District of Columbia, 180 A.3d 1073, 1078 (D.C. 2018) (noting that because certain requested documents “always have been in the District’s possession and under its control,” the District was a proper defendant in a suit for FOIA violations concerning these documents). The D.C. Act also provides that a public body must make available records produced or collected pursuant to a contract with a private contractor to perform a public function. D.C. Code Ann. § 2-532(a-3).

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2. What physical form of records are covered

Public records include "all books, papers, maps, photographs, cards, tapes, recordings or other documentary materials regardless of physical form characteristics prepared, owned or used in the possession of, or retained by a public body." D.C. Code Ann. § 2-502(18); id. § 2-539. Public records include information stored in an electronic format. Id. § 2-502(18).

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3. Are certain records available for inspection but not copying?

The D.C. Act states that any person "has a right to inspect, and at his or her discretion, to copy any public record of a public body." D.C. Code Ann. § 2-532(a) (emphasis added). A public body may set "reasonable rules" for time and place of access to documents through notice and comment proceedings. Id.

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4. Telephone call logs

Telephone call logs are not specifically addressed in the statute, but they should fall within the definition of "public record," which includes "all books, papers, maps, photographs, cards, tapes, recordings, or other documentary materials regardless of physical form characteristics prepared, owned, or used in the possession of, or retained by a public body." D.C. Code Ann. § 2-502(18).

D.C. courts have, however, found that records containing telephone numbers can fall within the Act's personal privacy exemption. The D.C. Act exempts from disclosure any "information of a personal nature where the public disclosure thereof would constitute a clearly unwarranted invasion of personal privacy." Id. § 2-534(a)(2). In determining whether records containing telephone numbers can be exempted under this subsection, D.C. courts balance the public interest in disclosure against personal privacy interests. See, e.g., Padou v. District of Columbia, 29 A.3d 973, 979 (D.C. 2011) (exempting telephone numbers from being released after "balanc[ing] the public interest against the privacy interest and decid[ing] that the privacy interest was more important.").

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5. Electronic records (e.g., databases, metadata)

Even though electronic records like databases and metadata are not specifically mentioned in the statute, this information should fall within the general definition of “public record . . . regardless of physical form” as well. D.C. Code. Ann. § 2-502(18). As the D.C. Court of Appeals has explained:

Electronic records have been subject to D.C. FOIA since the Council extended the statute's coverage through the Freedom of Information Amendment Act of 2000, D.C. Law 13–283, 48 D.C. Reg. 1917 (2001). The Council stated that its intent, “in keeping with the general purpose of FOIA,” was “to provide the public greater access to information, improve the effectiveness of the law, and encourage better government responsiveness to requests for public records.” Committee on Government Operations, D.C. Council, Report on Bill No. 13–829 at 1 (2000). As amended, D.C. FOIA provides that “[i]n responding to a request for records pursuant to this section, a public body shall make reasonable efforts to search for the records in electronic form or format, except when the efforts would significantly interfere with the operation of the public body's automated information system.” D.C. Code Ann. § 2–532(a–2).

Not specifically addressed. However, in March 2022, D.C.’s Board of Ethics and Government Accountability issued an advisory opinion on the applicability of the FOIA statute to text messages. That opinion stated that “the breadth of the statute, and the interpretations given by federal FOIA and sister jurisdictions to comparable statutes, support the conclusion that text messages, to the extent that their contents are government business, are public records.” The full opinion can be found here: https://www.open-dc.gov/FOIA_AdvisoryOpinion_TextMessages.

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Not specifically addressed.

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9. Computer software

Not specifically addressed.

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10. Can a requester ask for the creation or compilation of a new record?

Not specifically addressed.

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D. Fee provisions

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1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

The D.C. Act is to be construed to minimize the costs associated with obtaining public information. D.C. Code Ann. § 2-531. Search, review and copying fees cannot exceed the actual costs of searching, reviewing and/or copying records. D.C. Code Ann. § 2-532(b). The fee schedules that may be adopted by a public body vary depending on the purpose of the request and the identity of the requester. When records are not sought for commercial use and the request is made by a representative of the news media or by an educational or non-commercial scientific institution for scholarly or scientific research, fees are limited to reasonable standard charges for document duplication. When records are requested for commercial use, fees are limited to reasonable standard charges for searching, duplication and review. For all other requests, fees are limited to reasonable standard charges for document search and duplication. Id.

A public body must provide a requested record in any form or format requested by the person, provided that the person pays the costs of reproducing the record in that form or format. D.C. Code Ann. § 2-532(a-1).

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2. Particular fee specifications or provisions

Search, review and copying fees cannot exceed the actual costs of searching, reviewing and/or copying records. D.C. Code Ann. § 2-532(b). The fee schedules that may be adopted by a public body vary depending on the purpose of the request and the identity of the requester. When records are not sought for commercial use and the request is made by a representative of the news media or by an educational or non-commercial scientific institution for scholarly or scientific research, fees are limited to reasonable standard charges for document duplication. When records are requested for commercial use, fees are limited to reasonable standard charges for searching, duplication and review. For all other types of requests, fees are limited to reasonable standard charges for document search and duplication. Id.

Reasonable standard charges for duplication may be charged. Id.

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1. Search obligations

The D.C. Court of Appeals has endorsed the test employed by federal courts for evaluating the adequacy of a search for documents responsive to a FOIA request. Doe v. D.C. Metro. Police Dep’t, 948 A.2d 1210, 1220 (D.C. 2008). Courts assess whether an entity subject to FOIA has fulfilled its search obligations not by looking to the “fruits of the search,” but rather to the “appropriateness of the methods used to carry out the search.” Fraternal Order of Police v. District of Columbia, 139 A.3d 853, 864 (D.C. 2016) (citations omitted). “An agency's search conducted in response to a FOIA request ‘need not be perfect, only adequate, and adequacy is measured by the reasonableness of the effort in light of the specific request.’” Fraternal Order of Police, Metro. Police Labor Comm. v. District of Columbia (FOP Peaceoholics), 79 A.3d 347, 360 (D.C. 2013) (quoting Meeropol v. Meese, 790 F.2d 942, 956 (D.C. Cir.1986)).

Depending on the specifics of the request, the required scope of the search might be quite broad. See, e.g., Fraternal Order of Police v. District of Columbia, 139 A.3d 853, 866 (D.C. 2016) (“But as to those records created and stored in electronic form, we do not know and cannot simply assume, in this age of computerized connectivity, that it would be unreasonable for MPD's FOIA officer to search all of MPD's email accounts, regardless of how many accounts that might be.”).

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2. Proactive disclosure requirements

The D.C. Act provides that the following information must be made public, regardless of whether it is requested:

1) The names, salaries, title, and dates of employment of all employees and officers of a public body

2) Administrative staff manuals and instructions to staff that affect a member of the public

3) Final opinions, including concurring and dissenting opinions made in the adjudication of cases

4) Those statements of policy and interpretations of policy, acts, and rules which have been adopted by a public body

5) correspondence and materials of a public body through which the public body determines the rights of the District, the public, or any private party

6) Information in or taken from any account dealing with expenditures of public or other funds by public bodies

7) The minutes of all proceedings of all public bodies

8) All names and mailing addresses of absentee real property owners and their agents

9) Copies of all records, regardless of form or format, which have been released to any person under the D.C. Act

10) A general index of the records referred to in the D.C. Act

D.C. Code Ann. § 2-536 (Information which must be made public).

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3. Records retention requirements

The D.C. Act does not impose any laws or regulations requiring retention for certain periods.

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4. Provisions for broad, vague, or burdensome requests

The D.C. Court of Appeals has held that the both the “language” and “animating spirit of D.C. FOIA” mandate that even an overly broad or vague request will not render that request “void from the start.” Fraternal Order of Police v. District of Columbia, 139 A.3d 853, 859-60 (D.C. 2016). “The implementing regulations of D.C. FOIA . . . impose no greater burden on requesters than to ‘reasonably describe the desired record(s).’” Id. at 861 (citing 1 D.C. Mun. Regs. tit. 1 § 402.4). If that burden is not met, however, the FOIA officer has an “affirmative obligation” to “engage with the requester and seek out the information needed to fulfill the request.” Id. (citing 1 D.C. Mun. Regs. tit. 1 § 402.5). If such information is required to fulfill the request, the clock for production does not start until the FOIA Officer receives the information. 1 D.C. Mun. Regs. tit. 1 § 405.6.

Similarly, unlike federal courts interpreting the federal FOIA, the D.C. Court of Appeals has held that the D.C. Act does not allow requests to be treated as “void-for-volume” (that is, void for being overly burdensome on the agency). F.O.P., 139 A.3d at 862-63. The court further noted that this remains an issue for the legislature—should there be provisions added to D.C. FOIA to allow for further time extensions in cases of excessive burdens of production?—but that the legislature has not yet taken it up. Id. at 863 n.24.

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II. Exemptions and other legal limitations

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A. Exemptions in the open records statute

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1. Character of exemptions

Statutory exemptions are specific and are to be strictly construed; courts do not have the power to create additional exemptions. See D.C. Code Ann. § 2-537(b); Barry v. Washington Post Co., 529 A.2d 319, 321 (D.C. 1987). A government agency that wishes to withhold information has the burden of showing an exemption to the D.C. Act applies. See Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 521 (D.C. 1989).

The language of the D.C. Act provides that the listed categories of information "may be exempt." D.C. Code Ann. § 2-534(a). The exemptions, therefore, should be viewed as discretionary. See 1 D.C. Mun. Reg. ("DCMR") § 406.1 (no requested record may be withheld unless it both comes within a statutory exemption and there is a need in the public interest to withhold it); 1 DCMR § 400.4 (records exempt from mandatory disclosure shall be made available as a matter of discretion when disclosure is not prohibited by law or is not against the public interest). Information gathered under the Vital Records Act, however, is excluded from the D.C. Act altogether, and can only be disclosed pursuant to the terms of the Vital Records Act. D.C. Code Ann. § 2-534(d). The D.C. Act exemptions do not authorize nondisclosure of information when disclosure is authorized or mandated by other law. D.C. Code Ann. § 2-534(c); see also Dunhill v. Director, 416 A.2d 244, 247-48 (D.C. 1980) (holding that even if information sought was exempt under privacy exemption, nondisclosure was improper because the information was available under another law and accompanying regulations); Cf. Riley v. Fenty, 7 A.3d 1014, 1017 (D.C. 2010) (holding that juvenile records were not subject to disclosure because another statute prohibited their release); Wemhoff v. District of Columbia, 887 A.2d 1004, 1009 (D.C. 2005) (holding that attorney could not obtain driving records for solicitation purposes because another statute barred those records' release).

The exemptions under the D.C. Act are patterned on and have been construed in accordance with federal law. See Barry v. Washington Post Co., 529 A.2d at 321. Three exemptions that appear in the federal act do not appear in the D.C. Act: (1) internal personnel rules and practices of an agency; (2) reports of and information gained during examinations of financial institutions; and (3) geological and geographical data regarding wells. 5 U.S.C.A. § § 552(b)(2), 552(b)(8)-(9). Exemptions appearing in the D.C. Act that do not appear in the federal act are discussed in other sections.

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2. Discussion of each exemption

Trade Secrets and Commercial or Financial Information (D.C. Code Ann. § 2-534(a)(1)) — Like the federal statute, the D.C. Act contains a provision exempting disclosure of trade secrets and confidential commercial or financial information obtained from outside the government. The D.C. Act, however, is more restrictive in what material may be withheld by an agency. See Food and Allies Servs. Traders, AFL-CIO v. Barry, No. 3809-88, slip. op. at 5-7 (D.C. Super. Ct. Jan. 9, 1987). Under the D.C. Act, this exemption applies only if "the party from whom the information was obtained faces actual competition." Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 522 (D.C. 1989).

In addition, the D.C. Act exempts such information only "to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained." D.C. Code Ann. § 2-534(a)(1). Under the D.C. Act, an association that does not itself engage in business, and therefore cannot show harm to its competitive position, cannot claim that documents it prepared for a D.C. government agency fall within the trade secrets exemption. Belth v. Dep't of Consumer & Regulatory Affairs, 115 Daily Washington Legal Rptr. 2281 (D.C. Super. Ct. 1987) (ordering disclosure of insurance reports prepared by the National Association of Insurance Commissioners).

Accordingly, opinions from the Mayor's office pursuant to FOIA appeals have held that:

A party asserting that its competitive position would be harmed by the disclosure of commercial information must show a specific likelihood of injury; a generalized invocation of the language of the statute is not enough to justify nondisclosure. Shaw Coal. Redevelopment Corp. v. Office of the Assistant City Adm’r for Econ. Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994).

Certain financial terms and conditions, including rental fee amounts, rental deposit amounts, electrical fee amounts, and an estimate of total kilowatt consumption, between the Washington Convention Center and promoters do not fall within the trade secret exemption because fee amounts are "unique for each particular live event" and do not affect the competitive bargaining power of other promoters. In re Appeal of John R. Risher, Esq., for Disclosure of Certain Rental Agreements and Related Documents, FOIA App. No. 90-1 (Office of the Mayor, Aug. 1, 1991).

The D.C. Act's language was based on the Judiciary Committee's reading of the D.C. Circuit's opinion in National Parks & Conservation Association v. Morton, 498 F.2d 765, 770 (D.C. Cir. 1974). Comm. on the Judiciary and Criminal Law, Report on Bill No. 1-119, the "D.C. Freedom of Information Act of 1975," at 8 (Sept. 1, 1976) (“Comm. on Judiciary Report”). In National Parks, however, the D.C. Circuit held that information was "confidential" within the meaning of the federal FOIA's exemption 4 not only if its disclosure would harm a person's competitive position, but also if disclosure would impair the government's interest in obtaining information in the future. See Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d at 523. In addition, National Parks left open the question of whether governmental interests other than obtaining future information would justify withholding information under exemption 4. See National Parks, 498 F.2d at 770 n.17. Although this question was answered in the affirmative in Critical Mass Energy Project v. Nuclear Regulatory Commission, 830 F.2d 278, 282-87 (D.C. Cir. 1987), that decision should not affect the interpretation of the D.C. Act.

Privacy (D.C. Code Ann. § 2-534(a)(2)) — The D.C. Act exempts information of a personal nature, when disclosure would constitute a clearly unwarranted invasion of privacy. For example, the Act exempts the release of presentence reports, academic records, mental health assessments and other records pertaining to prison inmates' applications for minimum sentence reductions. See Hines v. Bd. of Parole, 567 A.2d 909, 913 (D.C. 1989). And the Act exempts personal information of public employees, unless the requestor shows that "the withheld information will shed light on an agency's performance of its statutory duties or otherwise let citizens know what the government is up to." Fraternal Order of Police v. District of Columbia, 124 A.3d 69, 77 (D.C. 2015) (internal quotation marks omitted). D.C. courts have held that when this privacy exemption does not apply and the D.C. statute authorizes disclosure of information, litigants cannot then base an invasion of privacy claim upon the government's dissemination of information. See Wolf v. Regardie, 553 A.2d 1213, 1218-19 & n.10 (D.C. 1989).

The language of the D.C. Act's privacy exemption is broader than that of federal law. Unlike the language of the federal statute, which limits its comparable exemption to personnel, medical and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy, see 5 U.S.C.A. § 552(b)(6), the D.C. Act exempts all information of a personal nature the disclosure of which would constitute a clearly unwarranted invasion of privacy. However, when information collected for law enforcement purposes is at issue, this difference between the privacy exceptions of the two statutes diminishes. The federal statute exempts disclosure of investigatory records compiled for law enforcement purposes that could reasonably be expected to constitute an unwarranted invasion of personal privacy. 5 U.S.C.A. § 552(b)(7)(C). The Supreme Court has interpreted this privacy exemption covering information relating to law enforcement as more expansive than the federal statute's personnel, medical and similar files privacy exemption. See United States v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755-56 (1989) (exempting disclosure of FBI rap sheets).

The Mayor's office (and now the Office of the Secretary) has consistently relied on the Reporters Committee rule in performing the requisite balancing test under this exemption: the individual's privacy interest in the material at issue must be balanced against the public interest in disclosing it, and this public interest must serve the "core purpose of shedding light on an agency's performance of its statutory duties." Foster v. Univ. of the Dist. of Columbia, FOIA App. No. 92-8 (Office of the Mayor, Oct. 30, 1995) (refusing to release the personnel records and curriculum vitae of a U.D.C. employee because disclosure would impinge upon the employee's privacy rights and serve no "core" public purpose); see also In re Appeal of The Washington Post Co., Matter No. 01-170008, 48 D.C. Reg. 8629 (Office of the Secretary, Sept. 7, 2001) (holding that the privacy interests of students and teachers under investigation for the consumption of alcohol substantially outweighs the public interest in their identifying information); Emily Yinger, Esq. v. Metro. Police Dep't, FOIA App. No. 93-25 (Office of the Mayor, Oct. 5, 1994) (holding that no "core" public purpose is served when individual seeks police officers' personnel records for use in a civil suit against officers); Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995) (refusing to disclose address of district resident who has not otherwise made her address and telephone number public, where plaintiff wanted address for use in a civil lawsuit); In re Appeal of Walter Thomas, Matter No. 04-409467, 51 D.C. Reg. 6969 (Office of the Secretary, June 21, 2004) (ordering disclosure of names, professional qualifications, and work experiences of successful job applicants, but refusing to disclose other private information, such as home telephone numbers and addresses, Social Security numbers, marital status and personal references, or any information regarding unsuccessful job applicants). The D.C. Court of Appeals applies the same test. Vining v. Council of District of Columbia, 140 A.3d 439, 449 (D.C. 2016).

In accordance with other jurisprudence pertaining to corporations, the Mayor's office has ruled that corporations have no privacy rights under exemption (a)(2). Washington Post Co. v. Metro. Police Dep't, FOIA App. No. 92-5 (Sept. 24, 1993) (refusing to disclose on privacy grounds names and addresses of registered gun owners, but agreeing to release information regarding licensed gun dealers because corporations have no privacy interests).

D.C. Code Section 2-536, specifically makes certain information public, but does so "without limiting the meaning of other sections of this subchapter." Despite what appear to be specific and mandatory disclosure requirements under § 2-536, the Mayor's office has construed this limiting language to mean that if the privacy exemption is implicated by a record that falls within § 2-536, the record can be withheld. Thus, in the view of the Mayor's office, the names of members of the police department, although required to be made public under § 2-536, do not have to be released because "by virtue of the nature of their work, MPD personnel have substantial privacy interests that militate against public revelation of their names." Mike R. Atraqchi v. Metro. Police Dep't, FOIA App. No. 94-17 (Office of the Mayor, July 28, 1994).

Investigatory and Law Enforcement Records (D.C. Code Ann. § 2-534(a)(3)) — Like the federal law, the D.C. Act exempts certain investigatory records compiled for law enforcement purposes (including the records of Council investigations). The exemption allows nondisclosure when disclosure would interfere with enforcement proceedings or Council investigations, deprive a person of a fair trial, constitute an unwarranted invasion of privacy, disclose the identity of a confidential source, disclose investigation techniques, or endanger the lives of law enforcement officers. D.C. Code Ann. § 2-534(a)(3). The exemption applies only to investigatory records that are compiled in the course of specific investigations and that focus on specific individuals and acts. See Fraternal Order of Police, Metro. Labor Comm. v. District of Columbia, 82 A.3d 803, 815 (D.C. 2014) (holding that records concerning use of breathalyzer were exempt only if "(1) the documents requested . . . [were] compiled for law enforcement purposes, and (2) disclosure of those documents would interfere with enforcement proceedings."); Barry v. Washington Post Co., 529 A.2d at 321-22. Such records are exempt, however, only if their release would also result in the interference with enforcement proceedings or cause one of the other results described in D.C. Code Ann. § 2-534(a)(3). See In re Appeal of Ernest Middleton, Matter No. 01-171746, 48 D.C. Reg. 9022 (Office of the Secretary, Sept. 19, 2001); In re Appeal of Mark W. Howes, Esq., Matter No. 00-10587, 48 D.C. Reg. 7827 (Office of the Secretary, Aug. 13, 2001). The D.C. Act "seeks to strike a balance for maximum disclosure even of law enforcement information, but not in cases where the information would endanger people, interfere with due process or severely hamper law enforcement effort." Comm. on Judiciary Report, at 7. The Mayor's office has ruled that investigatory records in a 6-year-old murder case are exempt from disclosure if charges and criminal litigation are still possibilities. Glenn A. Stanko, Esq. v. Metro. Police Dep't, FOIA App. No. 92-24 (Feb. 24, 1995).

The Mayor's office appears to be highly deferential to departments or agencies that invoke this exemption. The Office has held that the privacy interests of police and the crime victim's family militate against releasing a videotaped murder confession that was never admitted into evidence against the accused when the tape was sought by a news reporter. In re Appeal of Molly Pauker, Esq., (unnumbered FOIA appeal) (Office of the Mayor, Nov. 3, 1989). The Office has also held that disclosing a police officer's records regarding an investigation into her alleged drug abuse, when no disciplinary charges were brought and absent allegations that the investigation was mishandled, would serve no public purpose. Pretext Servs. Inc. v. Metro. Police Dep't, FOIA App. No. 92-10 (Office of the Mayor, March 8, 1995).

It should be noted that another D.C. statute provides that all complaints and other specific police records shall be open for inspection. D.C. Code Ann. § 5-113.06; see also D.C. Code Ann. § 2-534(c) ("This section shall not operate to permit nondisclosure of information of which disclosure is authorized or mandated by other law."). Therefore, the names of some 70 police officers and information about criminal charges filed against them were required to be disclosed under § 5-113.06 [formerly D.C. Code § 4-135]. Washington Post v. Metro. Police Dep't, FOIA App. No. 93-15 (Office of the Mayor, March 11, 1994).

Interagency Memos and Letters(D.C. Code Ann. § 2-534(a)(4)) — This exemption is virtually identical to the exemption in the federal statute, exempting inter-agency and intra-agency memorandums or letters (including memorandums or letters generated or received by the staff or members of the Council), which would not be available by law to a party in litigation with a public body. Compare D.C. Code Ann. § 2-534(a)(4) with5 U.S.C.A. § 552(b)(5). As a matter of policy, reports and analyses prepared by an organization outside the government, even if they are used in an agency's deliberative process, do not fall within the exemption. Belth, 115 Daily Washington Legal Rptr. at 2281 ("To hold otherwise would be to rule that the independently initiated, prepared and funded reports of a private organization . . . which that organization desires to withhold from public scrutiny and discussion but to have used by a governmental agency as the basis for important public policy decisions, would be immunized from disclosure . . . .").

The D.C. Act expressly provides that the deliberative process privilege, the attorney work product privilege, and the attorney-client privilege are incorporated into the exemption in D.C. Code Ann. § 2-534(a)(4). D.C. Code Ann. § 2-534(e); see also Kane v. District of Columbia, 180 A.3d 1073, 1079-80 (D.C. 2018). Prior to this language being added to the statute, the Mayor's office and the Office of the Secretary had already relied on the common law deliberative process privilege to find documents are exempt from disclosure under D.C. Code Ann. § 2-534(a)(4) because they would not be available to a party in litigation with the agency. Shaw Coal. Redevelopment Corp. v. Office of the Assistant City Adm'r for Econ. Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994) (withholding documents related to an executive decision about real estate development); Alonzo L. Williams v. Office of Superintendent, FOIA App. No. 95-10 (Office of the Mayor, Aug. 11, 1995) (withholding memoranda from a hearing examiner whose recommendation was rejected by the Superintendent of Schools, the final arbiter of the decision at issue); see also In re Appeal of the ACLU (National Prison Project), Matter No. 00-118630, 48 D.C. Reg. 2407 (Office of the Secretary, Mar. 6, 2001) (remanding case to D.C. Department of Corrections to determine whether requested memorandum is of a "predecisional" and "deliberative" character).

Test Questions and Answers(D.C. Code Ann. § 2-534(a)(5)) — This exemption does not appear in the federal act. It exempts test questions and answers to be used in future license, employment or academic examinations. It does not exempt previously administered exams or answers thereto.

However, if information regarding an exam — for example, a job applicants' test answers and general scoring protocols — would "compromise the legitimacy and fairness of an examination process by revealing test answers to be used in future exams," such information will fall within this exemption. Francesca A. Clark v. Metro. Police Dep't, FOIA App. No. 94-43 (Office of the Mayor, Sept. 29, 1995).

Information Exempted by Other Statutes (D.C. Code Ann. § 2-534(a)(6)) — This exemption is identical to the federal exemption. Compare D.C. Code Ann. § 2-534(a)(6) with5 U.S.C.A. § 552(b)(3). It requires that information be specifically exemptedfrom disclosure by another statute. Such exemption will not be inferred. Vining v. Council of District of Columbia, 140 A.3d 439, 446 (D.C. 2016) (holding that the text of the Legislative Privilege Act does not explicitly shield information from the public, and so cannot be invoked through this FOIA exemption); Riley v. Fenty, 7 A.3d 1014, 1017 (D.C. 2010) (holding that juvenile records were not subject to disclosure because another statute prohibited their release); Wemhoff v. District of Columbia, 887 A.2d 1004, 1009 (D.C. 2005) (holding that attorney could not obtain driving records for solicitation purposes because another statute barred those records' release); Barry v. Washington Post Co., 529 A.2d at 322. The exemption does not apply to certain ordinances, or other laws that are not "statutes." Newspapers Inc., 546 A.2d at 997-1001; see also In re Appeal of Grayson & Assocs., P.C., Matter No. 00-00240, 47 D.C. Reg. 4585 (Office of the Secretary, May 16, 2000) (Section 42-231 of the D.C. Unclaimed Property Act qualifies as a nondisclosure statute under D.C. Code Ann. § 2-534(a)(6)); Velrey Props. Inc. v. Dep't of Human Servs., FOIA App. No. 94-45 (Office of the Mayor, May 17, 1995) (federal regulations are not statutes within the meaning of the Act); In re Appeal of Clifton Jackson for Release of Inheritance Tax Return Form FR-19, FOIA App. No. 90-7 (Office of the Mayor, May 19, 1991) (Inheritance and Estate Tax Revision Act, D.C. Code Ann. § 45-3719(a) & (c), is a statute within the meaning of the Act, requiring nondisclosure of certain tax records).
Information Exempted By Federal Law Because Of National Defense Or Foreign Policy Concerns(D.C. Code Ann. § 2-534(a)(7)) — This exemption is virtually identical to the exemption in the federal act. CompareD.C. Code Ann. § 2-534(a)(7) with 5 U.S.C.A. § 552(b)(1)(A).
Information Gained in Civil Antitrust Actions(D.C. Code Ann. § 2-534(a)(8)) — This provision does not appear in the federal act. It exempts certain information gained by the D.C. Government during discovery or investigations carried out pursuant to local antitrust laws like D.C. Code Ann. § 28-4505.
Information Disclosed In Arson Investigations(D.C. Code Ann. § 2-534(a)(9)) — This exemption also does not appear in the federal act. It exempts information gained pursuant to local arson reporting laws like D.C. Code Ann. § 5-417.
Specific Response Plans and Vulnerability Assessments(D.C. Code Ann. § 2-534(a)(10)) — The D.C. Act exempts specific response plans for public emergency preparedness and prevention and specific vulnerability assessments that are intended to prevent or to mitigate an act of terrorism.
Information Submitted to Business License Center(D.C. Code Ann. § 2-534(a)(11)) — Information submitted to the Business License Center within the Department of Consumer and Regulatory Affairs, such as applications for business licenses, are exempted by the D.C. Act. A person, however, may be provided with information submitted to the Business License Center for one registrant based upon the submission of either the name or address of the registrant; persons are limited to one such request per day. Federal Employer Identification numbers and Social Security numbers shall not be released except if requested by a law enforcement agency or directed by court order.
Information That Would Disclose the Identity of a Whistleblower(D.C. Code Ann. § 2-534(a)(12)) — Information, the disclosure of which would reveal the name of an employee providing information under the whistleblower protection provisions of the D.C. Code § 1-615.51 et seq.and § 2-223.01 et seq., is exempt unless the name of the employee is already known to the public.
Vital Records (D.C. Code Ann. § 2-534(d)) — This exemption is unique to the D.C. Act. It provides that the provisions of the D.C. Act do not apply to the Vital Records Act of 1981, D.C. Code Ann. § 7-201. Unlike other exemptions, this exemption is not discretionary. Vital records include certificates or reports on birth, death, marriage, divorce, annulment and data related thereto. D.C. Code Ann. § 7-201(15). The Vital Records Act prohibits disclosure of those records except as provided by that chapter. Id. § 7-219(a). Under the Vital Records Act, disclosure is permissible only to a person with a direct, tangible interest in the record. Such a person is defined as (1) a person about whom the information is gathered, and his or her immediate family, guardian or legal representative; or (2) a person who needs the information to determine or protect a personal or property right. The Vital Records Act contains criminal penalties for violations of its provisions. Id. § 7-225.

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B. Other statutory exclusions

None.

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C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

Courts do not have the power to create additional exemptions. Barry v. Washington Post Co., 529 A.2d 319, 321 (D.C. 1987). Common law privileges are incorporated in D.C. Code Ann. § 2-534(a)(4) (allowing nondisclosure of documents that would not otherwise be available to a party in litigation).

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D. Protective orders and government agreements to keep records confidential

Not specifically addressed.

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E. Interaction between federal and state law

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1. HIPAA

No case has yet considered the interaction between HIPAA and D.C. FOIA, but it is likely that materials covered by HIPAA would be exempt from disclosure under FOIA under its § 2-534(a)(6) exception.

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2. DPPA

The Driver’s Privacy Protection Act (DPPA), 18 U.S.C. § 2721, generally prohibits the disclosure of personal information about individuals obtained by a state’s department of motor vehicles in connection with a motor vehicle record (with exceptions to this prohibition covered in 18 U.S.C. § 2721(b)). In Wemhoff v. District of Columbia, 887 A.2d 1004 (D.C. 2005), the D.C. Court of Appeals held that the DPPA prohibition on disclosure prevented these records from being obtained under D.C. FOIA. Id. at 1013.

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3. FERPA

“Budget requests, submissions and reports available electronically that agencies, boards and commissions transmit to the Office of Budget and Planning during the budget development process, as well as reports on budget implementation and execution prepared by the Office of the Chief Financial Officer, including baseline budget submissions and appeals, financial status reports and strategic plans and performance-based budget submissions."

D.C. Code § 2-534(a)(3).

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E. Business records, financial data, trade secrets

Trade secrets and commercial or financial information are specifically exempted under D.C. Code Ann. § 2-534(a)(1). Under the D.C. Act, this exemption applies only if "the party from whom the information was obtained faces actual competition." Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 522 (D.C. 1989). In addition, the D.C. Act exempts such information only "to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained." D.C. Code Ann. § 2-534(a)(1).

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F. Contracts, proposals and bids

Information in or taken from any contract dealing with the receipt or expenditure of public or other funds by public bodies must be disclosed in accordance with D.C. Code Ann. § 2-536(a)(6). In other instances, the financial information and trade secret exemption, D.C. Code Ann. § 2-534(a), may come into play. Shaw Coal. Redevelopment Corp. v. Office of the Assistant City Adm'r for Econ. Dev., FOIA App. No. 90-20 (Office of the Mayor, July 17, 1994).

L. Homeland security and anti-terrorism measures

The D.C. Act exempts specific response plans for public emergency preparedness and prevention and specific vulnerability assessments that are intended to prevent or to mitigate an act of terrorism. D.C. Code Ann. § 2-534(a)(10). The D.C. Act also exempts information exempted by federal law because of national defense or foreign policy concerns. D.C. Code Ann. § 2-534(a)(7).

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M. Hospital reports

The privacy exemption, D.C. Code Ann. § 2-534(a)(2), may apply.

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N. Personnel records

Certain personnel records are arguably exempt under the privacy exemption, D.C. Code Ann. § 2-534(a)(2). Cf. In re Appeal of Walter Thomas, Matter No. 04-409467, 51 D.C. Reg. 6969 (Office of the Secretary, June 21, 2004) (ordering disclosure of names, professional qualifications and work experiences of successful job applicants but refusing to disclose other private information, such as home telephone numbers and addresses, Social Security numbers, marital status and personal references about successful applicants or any information regarding unsuccessful job applicants).

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1. Salary

The salaries of employees and officers of public bodies are public information under D.C. Code § 2-536.

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2. Disciplinary records

If disciplinary records contain personally identifying information for the employees concerned, they likely fall under the privacy exemption in D.C. Code Ann. § 2-534(a)(2) and will be redacted before disclosure. In Fraternal Order of Police, Metropolitan Police Labor Committee v. District of Columbia, 124 A.3d 69, 71-72 (D.C. 2015), the court held that not only do the names of officers subject to disciplinary action need to be redacted under the exception, but also the gender and race of the disciplined officers and the dates of relevant events.

Requesters who ask for all citizen complaints against an individual officer have been met with Glomar responses, in which the department neither confirms nor denies the existence of records. In re Appeal of Evan Lambert, FOIA App. No. 2017-128 (Aug. 18, 2017). The Mayor’s office upheld this practice, stating that the records “would not shed light on MPD’s performance of its statutory duties and would constitute an invasion of the individual police officers’ privacy interests.” Id.

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1. Accident reports

To obtain a report of a motor vehicle accident, an insurance practitioner must not obtain the information to solicit business within 21 days of the incident, pursuant to D.C. Code Ann. § 22-3225.14. In addition, if one does seek information within 21 days of an accident, they must produce a photo ID and provide a signed statement identifying the requested report, the name of the requester, and state that they are not prohibited from obtaining the information.

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The D.C. Act specifies that “[a]ny body-worn camera recordings recorded by the Metropolitan Police Department” may be exempt from disclosure if they are taken “[i]nside a personal residence” or “[r]elate[] to an incident involving domestic violence . . ., stalking . . ., or sexual assault.” D.C. Code Ann. § 2-534(a)(2A)(A)-(B). See also United States v. Kingsbury, 325 F. Supp. 3d 158, 160 (D.D.C. 2018) (noting that “the D.C. Code and the regulations promulgated thereunder by the Metropolitan Police Department . . . embod[y] a ‘policy judgment’ that body-worn camera materials ‘tend to contain information that implicates privacy concerns’”) (citing United States v. Johnson, 314 F. Supp. 3d 248, 257 (D.D.C. 2018)).

D.C. Mun. Regs. tit. 24 § 3902.5(a)–(b) further specify that the subject of body-worn camera footage– or their legal representative – may view the footage only after filing a FOIA request, and only if individual privacy rights or safety of another subject of the footage would not be imperiled. Any other requests for footage must be made via FOIA, and must be made to MPD. D.C. Mun. Regs. tit. 24 § 3902.3, 3902.6.

However, in some instances, the mayor has an affirmative duty to publicly release body camera footage. Pursuant to D.C. Code Ann. § 5-116.33(c), the mayor must do so within five days of an officer-involved death or an incident involving serious use of force. Under § 5-116.33, the mayor must release the names and camera recordings of all officers directly involved, as well as a description of the incident. The law also gives the mayor discretion to release certain recordings that would otherwise be exempt under FOIA. D.C. Code Ann. § 5-116.33(c)(2)(B). However, recordings may be withheld if the decedent’s next of kin or the victim of serious force informs the mayor that they do not consent to release. D.C. Code Ann. § 5-116.33(c)(3)(A)(i)–(ii).

Before the mayor releases body-worn camera footage of an officer-involved death, MPD must “[c]onsult with an organization with expertise in trauma and grief on best practices” for allowing the decedent’s family to view the footage prior to its release. D.C. Code Ann. § 5-116.33(d)(1).

Finally, the mayor must maintain a database on MPD’s website of all names and body-worn camera recordings of officers involved in someone’s death since the body camera program was launched in 2014. D.C. Code Ann. § 5-116.33(c)(2)(A)(ii).

Information gathered under the Vital Records Act is excluded from the D.C. Act altogether, and can only be disclosed pursuant to the terms of the Vital Records Act. D.C. Code Ann. § 2-534(d). The Vital Records Act prohibits disclosure of the records noted below except as provided by that chapter. D.C. Code Ann. § 7-231.24. Under the Vital Records Act, disclosure is permissible only to a person with a direct, tangible interest in the record. Such a person is defined as (1) a person about whom the information is gathered, and his or her immediate family, guardian or legal representative; or (2) a person who needs the information to determine or protect a personal or property right.

2. Does the law cover oral requests?

The D.C. Act does not expressly address oral requests as a general matter. It appears, however, that oral requests are permissible, although a requester later may be asked to submit the request in writing. See 1 DCMR § § 402.1 & 402.2. In all events, it is prudent to submit requests in writing to ensure that there is a record of the request. Section 2-536 specifically provides that the records described in that section are public information "and do not require a written request for information."

The D.C. Act provides that a person has a right to inspect "at his or her discretion," and copy "any public record of a public body" unless otherwise exempted "in accordance with reasonable rules that shall be issued by a public body after notice and comment, concerning the time and place of access." D.C. Code Ann. § 2-532(a).

Although the D.C. Act does not expressly address the question of procedure after an oral request is denied, after receiving a formal denial, or a denial by operation of the fact that no determination is made within the statutory time period, a requester may appeal the decision to the Mayor. D.C. Code Ann. § 2-537(a). Neither the statute nor the courts have addressed how the requester can memorialize the refusal, and whether subsequent steps need to be in writing.

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3. Required contents of a written request

The D.C. Act itself does not specify the exact requirements for a written request for records. The implementing regulations for D.C. FOIA provide further detail:

“A written request may be mailed, faxed or e-mailed to the agency Freedom of Information Officer, or agency head in the absence of a designated Freedom of Information Officer. The outside of the envelope or the subject line of the fax or e-mail shall state: ‘Freedom of Information Act Request’ or ‘FOIA Request’. In addition, a request shall include a daytime telephone number, e-mail address or mailing address for the requester. . . . A request shall reasonably describe the desired record(s). Where possible, specific information regarding names, places, events, subjects, dates, files, titles, file designation, or other identifying information shall be supplied.”

1 D.C. Mun. Regs. tit. 1, § 402.3-4.

If a requester does not meet these requirements for reasonable description, the burden is on the agency to follow up and ask for the necessary information. Fraternal Order of Police v. District of Columbia, 139 A.3d 853, 859-60 (D.C. 2016).

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4. Can the requester choose a format for receiving records?

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5. Availability of expedited processing

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B. How long to wait

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1. Statutory, regulatory or court-set time limits for agency response

Disclosure must be made, or denied, within 15 days, excluding weekends and legal holidays. D.C. Code Ann. § 2-532(c)(1). Requests for body-worn camera recordings have a 25 day timeline, instead. Id. § 2-532(c)(2)(A). In unusual circumstances, defined by the statute, an agency may extend the deadline up to 10 days, excluding weekends and holidays. Id. § 2-532(d)(1). Unusual circumstances include situations where there is a need to search for a voluminous amount of separate and distinct records, where there is a need for consultation with another public body with a substantial interest in the determination of the request, and where the city cannot find a vendor to perform redactions of body-worn camera recordings before the deadline. Id. § 2-532(d)(2).

In cases where the agency had to contact the requester for additional information needed to process the request, the time limitations do not begin until the agency receives the additional information. 1 D.C. Mun. Regs. tit. 1 § 405.6.

Even if the agency has not processed the request within the applicable time limit, it must continue to process the request. When the time limit expires, the agency has the responsibility of informing the requester of the reason for the delay, an updated date on which determination may be expected, the right to treat the delay as a denial, and of the requester’s right to appeal (though the agency may “ask the requester to forgo an appeal until a determination is made”). 1 D.C. Mun. Regs. tit. 1 § 405.5.

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2. Informal telephone inquiry as to status

There is no prohibition against, or specific allowance for, telephone inquiries as to status of a request.

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3. Is delay recognized as a denial for appeal purposes?

Failure to respond within the statutory time frame is considered a denial and an exhaustion of remedies, unless an appeal to the Mayor is brought. D.C. Code Ann. § 2-532(e).

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4. Any other recourse to encourage a response

An appeal to the Mayor's office draws the attention of the agency, or the agency's FOIA officer, to a neglected FOIA request, and the matter may thereby be resolved. See, e.g., EJD Assocs. Inc. v. Office of the D.C. Controller, FOIA App. No. 95037 (Office of the Mayor, Sept. 26, 1995) (appeal of constructive denial dismissed because request was addressed).

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C. Administrative appeal

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1. Time limit to file an appeal

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2. To whom is an appeal directed?

In most cases, an appeal should be directed to the Mayor. D.C. Code Ann. § 2-537(a). A copy of the appeal should be provided to the public body whose denial is being appealed. A person denied the right to inspect a public record in the possession of the Council need not appeal to the Mayor and may institute court proceedings. D.C. Code Ann. § 2-537(a-1). Presently, there are no alternatives to these methods of appealing a formal denial.

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3. Fee issues

There is no specific provision regarding the appeal of fees. The language of D.C. Code § 2-537(a) — "[a]ny person denied the right to inspect a public record of a public body may petition the Mayor . . ." — may give a requester room to argue that his or her "right to inspect a public record" has been effectively denied by the imposition of an unaffordably high fee.

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4. Contents of appeal

The implementing regulations for D.C. FOIA set out the required contents of an appeal. “An appeal to the Mayor shall be in writing. The appeal letter shall include ‘Freedom of Information Act Appeal’ or ‘FOIA Appeal’ in the subject line of the letter as well as marked on the outside of the envelope.” 1 D.C. Mun. Regs. tit. 1 § 412.3. The requester also must forward a copy of the appeal to the Freedom of Information Officer or head of the agency whose denial is the subject of the appeal. Id.

The written appeal must include:

“(a) Statement of the circumstances, reasons or arguments advanced in support of disclosure;

(b) Copy of the original request, if any;

(d) Daytime telephone number, email address or mailing address for the requester.”

Id. § 412.4.

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5. Waiting for a response

The agency has five days (not including weekends or holidays) to file a response to the appeal after receiving its copy of the appeal. 1 D.C. Mun. Regs. tit. 1 § 412.5. The Mayor has 10 days, not including weekends and holidays, in which to make a written determination of the outcome of the appeal. D.C. Code Ann. § 2-537(a); 1 D.C. Mun. Regs. tit. 1 § 412.7.

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6. Subsequent remedies

If the Mayor denies the appeal, or fails to act within 10 working days, court review is possible. D.C. Code Ann. § 2-537(a)(1).

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D. Additional dispute resolution procedures

All employees of the District government are responsible for compliance with the provisions of the D.C. Act. D.C. Code Ann. § 2-537(e). Each public body also must designate a Freedom of Information Officer who is to receive a minimum of 8 hours of training regarding implementation and compliance with the D.C. Act. Id. § 2-538(d). Each year, the Mayor requests from each public body and submits to the D.C. Council a report covering the public record disclosure activities of each public body during the preceding fiscal year. Id. § 2-538(a).

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1. Attorney General

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2. Ombudsperson

The D.C. Act contains no provision regarding the availability of an ombudsman.

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3. Other

The D.C. Act contemplates appeals of adverse decisions by individual petitioners, not commission or agency enforcement. D.C. Code Ann. § 2-537(a).

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E. Court action

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1. Who may sue?

Other than with respect to documents in the possession of the D.C. Council, any individual may commence court proceedings to challenge the withholding of documents if: (a) no response is made within the statutory time period following the initial request; (b) the Mayor denies an appeal; (c) the Mayor fails to act on an appeal within the statutory time period; or (d) an agency has failed to release documents, even though the Mayor has authorized the documents to be released. D.C. Code Ann. § 2-537(a)(1), (2).

Any person denied the right to inspect a public record in the possession of the D.C. Council may initiate court proceedings to challenge the withholding. D.C. Code Ann. § 2-537(a-1).

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2. Priority

There is no statutory priority given to FOIA suits.

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3. Pro se

A requester may proceed pro se. A requester proceeding pro se is not entitled to attorneys' fees if he or she ultimately prevails on the claim. Donahue v. Thomas, 618 A.2d 601 (D.C. 1992).

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4. Issues the court will address

The court reviews the matter de novo, D.C. Code § 2-537(b), and should provide a decision that is sufficiently detailed to demonstrate that such review has occurred. The decision should articulate the precise relationship between each claim for exemption and the contents of the specific documents held to be exempt. Washington Post Co. v. Minority Bus. Opportunity Comm'n, 560 A.2d 517, 523 (D.C. 1989). In addition, the court is permitted to examine any withheld documents in camera to determine whether they should be exempt. D.C. Code Ann. § 2-537(b). However, requests for in camera inspection must be relatively focused. When a party has simply requested a mass of documents, many of which are clearly exempt from release, the court has no obligation to review the documents to determine whether they contain some parts that may be disclosed. Hines v. Bd. of Parole, 567 A.2d 909, 913 (D.C. 1989).

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a. Attorney fees

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b. Court and litigation costs

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11. Fines

For certain D.C. FOIA violations, additional penalties may be imposed:

Any person who commits an arbitrary or capricious violation of the provisions of [the D.C. Act] shall be guilty of a misdemeanor and upon conviction shall be punished by a fine not to exceed $100.00. A prosecution under this section may only be commenced by the issuance of a citation, which shall be personally served upon the defendant. The defendant shall not be arrested prior to the time of trial, except that a defendant who fails to appear for arraignment or trial may be arrested pursuant to a bench warrant and required to post a bond to secure his or her future appearance.

D.C. Code Ann. § 2-537(d).

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12. Other penalties

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13. Settlement, pros and cons

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F. Appealing initial court decisions

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1. Appeal routes

The rules governing appeals from the District of Columbia Superior Court apply.

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2. Time limits for filing appeals

The rules governing appeals from the District of Columbia Superior Court apply.

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3. Contact of interested amici

The Reporters Committee for Freedom of the Press has a substantial interest in reporters' right of access to government information and frequently files friend-of-the court briefs on open records issues.

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G. Addressing government suits against disclosure

The Open Meetings Act has been discussed in only two reported cases. See Kane v. District of Columbia, 180 A.3d 1073, 1081 (D.C. 2018) (noting that the Open Meetings Act imposes “more stringent public access requirements” on meetings than were previously imposed by the Sunshine Act alone); Smith v. Henderson, 982 F. Supp. 2d 32, 48 (D.D.C. 2013) (dismissing claim that school board violated Open Meetings Act).

The statute covers meetings of public bodies, with “public body” defined as “any government council, including the Council of the District of Columbia, board, commission, or similar entity, including a board of directors of an instrumentality, a board which supervises or controls an agency, or an advisory body that takes official action by the vote of its members convened for such purpose.” D.C. Code Ann. § 2-574(3). It explicitly does not include:

“(A) A District agency or instrumentality (other than the board which supervises or controls an agency or the board of directors of an instrumentality);

(B) The District of Columbia courts;

(C) The Mayor's cabinet;

(D) The professional or administrative staff of public bodies when they meet outside the presence of a quorum of those bodies; or

(E) Advisory Neighborhood Commissions.”

Id.

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Although the Open Meetings Act does not specifically address meetings conducted by social media or online discussion boards, it applies to meetings held by any "means of communication." D.C. Code Ann. § 2-574(1). This catch-all category may include social media and online discussion boards, especially when read in light of the instruction to construe the Act broadly to maximize public access to meetings. Id. § 2-573. No reported case in the District of Columbia has considered whether social media and online discussion boards are sufficiently analogous to e-mails to come within the statute's exemption for e-mail exchanges.

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E. Categories of meetings subject to the law

The Open Meetings Act applies to all meetings "whether formal or informal, regular, special, or emergency." D.C. Code Ann. § 2-574(1). The Act appears to have been intended to "broaden" the previously-enacted Sunshine Act, see Council of the D.C. Comm. on Gov't Operations and Env't, Report on Bill 18-716, the "Open Meetings Act of 2010," at 5 (D.C. 2010) [hereinafter Committee Report], and reverse the D.C. Court of Appeals' practice of interpreting the open meetings requirement narrowly. See D.C. Code Ann. § 2-573 (instructing that the Act "shall be construed broadly to maximize public access to meetings"); Committee Report, supra, at 3 (blaming the previous statute's "failure to create clear definitions, clear procedures, and specific exemptions" given District bodies' tendency "to interpret the law narrowly").

This interpretation (that the Open Meetings Act was meant to have broader coverage than the Sunshine Act) was adopted by the D.C. Court of Appeals in Kane v. District of Columbia, 180 A.3d 1073, 1081 (D.C. 2018).

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1. Regular meetings

Open meeting requirements apply to regular meetings. D.C. Code Ann. § 2-574(1).

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a. Definition

Not specifically addressed.

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b. Notice

Notice must be provided "when meetings are scheduled and when the schedule is changed." The Act requires public bodies to establish and continually update an annual schedule of its meetings so as to provide maximum possible notice. D.C. Code Ann. § 2-576(1).

The Open Meetings Act requires a public body to provide notice "as early as possible, but not less than 48 hours or 2 business days, whichever is greater, before a meeting." Emergency meetings are an exception. D.C. Code Ann. § 2-576(1).

Notice shall be posted 1) in the office of the public body or a location that is readily accessible to the public, and 2) on the website of the public body or the District government. D.C. Code Ann. § 2-576(2). Notice also must be published in the District of Columbia register "as timely as practicable." Id. § 2-576(3).

Each meeting notice must include the date, time, location, and planned agenda to be covered in the meeting. D.C. Code Ann. § 2-576(5).

If the meeting or any portion of the meeting is to be closed, the notice also must, if feasible, provide a notice of intent to close the meeting and citations to the reason for closure under § 2-575(b). D.C. Code Ann. § 2-576(5).

Section 2-579 of the Open Meetings Act specifies several remedies and penalties for failure to give adequate notice:

1) If the court finds that a resolution, rule, act, regulation, or other official action was taken, made, or enacted in violation of the Act, the court may order an appropriate remedy, including requiring additional forms of notice, postponing a meeting, or declaring action taken at a meeting to be void. Actions shall not be declared void unless the court finds that the balance of equities compels the action or the court concludes that the violation was not harmless.

2) If the court finds that a public body plans to hold a closed meeting or portion of a meeting in violation of the Act, the court may a) enjoin the public body from closing the meeting or portion of the meeting; b) order that future meetings of the same kind be open to the public; or c) order that the record of a meeting be made public.

3) If the court finds that a member of a public body engages in a pattern or practice of willfully participating in one or more closed meetings in violation of the provisions of the Open Meetings Act, the court may impose a civil fine of not more than $ 250 for each violation.

4) The Act also authorizes courts to grant “such additional relief as it finds necessary.”

See D.C. Code Ann. § 2-579.

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c. Minutes

All meetings, whether open or closed, must be recorded electronically unless a recording is not feasible, in which case detailed minutes must be kept. D.C. Code Ann. § 2-578.

Records of a meeting are available to the public unless the records, or a portion of the records, may be withheld under the standard established for closed meetings in § 2-575(b). Records of the minutes of a meeting must be available for public inspection no later than three business days after the meeting. Full records of a meeting must be available for public inspection no later than seven business days after the meeting. D.C. Code Ann. § 2-578(b).

For meetings covered by the Sunshine Act, a “written transcript or a transcription shall be kept for all such meetings and shall be made available to the public during normal business hours of the District government. Copies of such written transcripts or copies of such transcriptions shall be available, upon request, to the public at reasonable cost.” D.C. Code Ann. § 1-207.42(b).

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2. Special or emergency meetings

(B) But nothing in the Act shall be construed to permit a public body to close a meeting that would otherwise be open merely because the attorney for the public body is a participant;

(5) Planning, discussing, or conducting specific collective bargaining negotiations;

(6) Preparation, administration, or grading of scholastic, licensing, or qualifying examinations;

(7) To prevent premature disclosure of an honorary degree, scholarship, prize, or similar award;

(8) To discuss and take action regarding specific methods and procedures to protect the public from existing or potential terrorist activity or substantial dangers to public health and safety, and to receive briefings by staff members, legal counsel, law enforcement officials, or emergency service officials concerning these methods and procedures; provided, that disclosure would endanger the public and a record of the closed session is made public if and when the public would not be endangered by that disclosure;

(9) To discuss disciplinary matters;

(10) To discuss the appointment, employment, assignment, promotion, performance evaluation, compensation, discipline, demotion, removal, or resignation of government appointees, employees, or officials;

(11) To discuss trade secrets and commercial or financial information obtained from outside the government, to the extent that disclosure would result in substantial harm to the competitive position of the person from whom the information was obtained;

(12) To train and develop members of a public body and staff;

(13) To deliberate upon a decision in an adjudication action or proceeding by a public body exercising quasi-judicial functions; and

(14) To plan, discuss, or hear reports concerning ongoing or planned investigations of alleged criminal or civil misconduct or violations of law or regulations, if disclosure to the public would harm the investigation.

D.C. Code Ann. § 2-575.

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The Open Meetings Act does not create a private cause of action for violations of the statute. It instead entrusts enforcement to D.C.'s Office of Open Government. D.C. Code Ann. § 2-579(a). Section 2-579 of the Act specifies several remedies and penalties for noncompliance:

4) The Act also authorizes courts to grant "such additional relief as it finds necessary to serve the purposes" of the Act.

D.C. Code Ann. § 2-579.

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II. Exemptions and other legal limitations

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A. Exemptions in the open meetings statute

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1. Character of exemptions

The Open Meetings Act, D.C. Code Ann. § 2-575(b), specifies sixteen reasons why a meeting, or portion of a meeting, may be closed:

(1) A law or court order requires that a particular matter or proceeding not be public;

(B) But nothing in the Act shall be construed to permit a public body to close a meeting that would otherwise be open merely because the attorney for the public body is a participant;

(5) Planning, discussing, or conducting specific collective bargaining negotiations;

(6) Preparation, administration, or grading of scholastic, licensing, or qualifying examinations;

(7) To prevent premature disclosure of an honorary degree, scholarship, prize, or similar award;

(9) To discuss disciplinary matters;

(12) To train and develop members of a public body and staff;

(13) To deliberate upon a decision in an adjudication action or proceeding by a public body exercising quasi-judicial functions; and

(15) To discuss matters involving personally identifiable information of students; and

(16)(A) When the public body is the board of trustees for a public charter school, to meet with the staff of an eligible chartering authority, for the purpose of being evaluated by the eligible chartering authority.

D.C. Code Ann. § 2-575(b).

The statutory provision governing closure is discretionary; it states that a meeting "may" be closed pursuant to the specified reasons. Id.

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2. Description of each exemption

Section 2-575(b) of the Open Meetings Act lists fourteen reasons why a meeting, or portion of a meeting, may be closed. It does not provide additional description. The Act allows a public body to seek an advisory opinion from Office of Open Government regarding compliance with the Act. D.C. Code Ann. § 2-579(g).

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B. Any other statutory requirements for closed or open meetings

A public body that meets in closed session may not discuss or consider matters other than those specified as a reason for closing the session. D.C. Code Ann. § 2-575(d).

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C. Court mandated opening, closing

If a court finds that a public body plans to hold a closed meeting or portion of a meeting in violation of § 2-579(d) of the Open Meetings Act, it may enjoin the public body from closing the meeting or portion of the meeting; order that future meetings of the same kind be open to the public; or order that the record of the meeting be made public. D.C. Code Ann. § 2-579(c). There are no provisions allowing a court to order that a meeting be closed.

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III. Meeting categories - open or closed

The Open Meetings Act specifies limited categories of meetings that may be closed; all other types of meetings must be open.

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Not specifically addressed.

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Appendix

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Open Government Guide

Author

Foreword

Open Records

I. Statute

A. Who can request records?

1. Status of requester

2. Purpose of request

3. Use of records

4. Can an individual request records on behalf of a third party or organization?

B. Whose records are and are not subject to the Act

1. Executive branch

2. Legislative bodies

3. Courts

4. Nongovernmental bodies

5. Multi-state or regional bodies

6. Advisory boards and commissions, quasi-governmental entities

7. Others

C. What records are and are not subject to the act?

1. What kinds of records are covered?

2. What physical form of records are covered

3. Are certain records available for inspection but not copying?

4. Telephone call logs

5. Electronic records (e.g., databases, metadata)

a. Can the requester choose a format for receiving records?

b. Can the requester obtain a customized search of computer databases to fit particular needs

c. Does the existence of information in electronic format affect its openness?

d. Online dissemination

6. Email

7. Text messages and other electronic messages

8. Social media posts

9. Computer software

10. Can a requester ask for the creation or compilation of a new record?

D. Fee provisions

1. Types of assessable fees (e.g., for search, review, duplication) and levels or limitations on fees

2. Particular fee specifications or provisions

3. Provisions for fee waivers

4. Requirements or prohibitions regarding advance payment

5. Have agencies imposed prohibitive fees to discourage requesters?

6. Fees for electronic records

E. Who enforces the Act?

1. Attorney General's role

2. Availability of an ombudsman

3. Commission or agency enforcement

F. Are there sanctions for noncompliance?

G. Record-holder obligations

1. Search obligations

2. Proactive disclosure requirements

3. Records retention requirements

4. Provisions for broad, vague, or burdensome requests

II. Exemptions and other legal limitations

A. Exemptions in the open records statute

1. Character of exemptions

2. Discussion of each exemption

B. Other statutory exclusions

C. Court-derived exclusions, common law prohibitions, recognized privileges against disclosure

D. Protective orders and government agreements to keep records confidential

E. Interaction between federal and state law

1. HIPAA

2. DPPA

3. FERPA

4. Other

F. Segregability requirements

G. Agency obligation to identify basis of redaction or withholding

III. Record categories - open or closed

A. Autopsy and coroners reports

B. Administrative enforcement records (e.g., worker safety and health inspections, or accident investigations)

C. Bank records

D. Budgets

E. Business records, financial data, trade secrets

F. Contracts, proposals and bids

G. Collective bargaining records

H. Economic development records

I. Election Records

J. Emergency Medical Services records

K. Gun permits

L. Homeland security and anti-terrorism measures

M. Hospital reports

N. Personnel records

1. Salary