D.C. wants more time to answer FOIA requests

By Ann E. Marimow
Thursday, June 24, 2010

The District's top lawyer is seeking more time to respond to public requests for government information, saying the city is inundated with complex inquiries and has less money and manpower than in the past to comply with D.C.'s open records law.

Attorney General Peter Nickles has asked the D.C. Council to pass legislation that would give the administration of Mayor Adrian M. Fenty (D) a "safety valve" of "unspecified additional time" to respond in unusual circumstances, similar to what federal law allows.

Under the District's Freedom of Information Act (FOIA), the government may take 15 days to respond to requests from taxpayers, labor unions, former employees and journalists, with a 10-day extension when more time is needed to search for, collect and process records. Federal law permits 20 days to respond, plus the "unspecified additional time" Nickles has requested.

"I have never seen more burdensome FOIA requests that are sapping the energy of our lawyers and paralegals," Nickles said. "You can't both cut our budget and expect that we're not going to have difficulties responding."

But his suggestion to extend the response period is unlikely to gain traction in the D.C. Council, where two members -- Muriel Bowser (D-Ward 4) and Mary M. Cheh (D-Ward 3) -- have proposed legislation to make the government more transparent and accessible to residents.

Cheh said such an extension would move in the opposite direction of her bill, which would create an independent agency with an ombudsman to oversee and facilitate the disclosure of records. Nickles, she said, "is looking for an open-ended excuse not to comply, and he's not going to get it. It's a simple invitation to delay, an invitation to mischief."

Council Chairman Vincent C. Gray, who is challenging Fenty in the September Democratic primary, also rejected the idea, calling the current response period "sufficient."

"What it says to me is, they are not really forthcoming with the information people are requesting," Gray said.

The year before Fenty was elected mayor, 4,939 requests were made. The number increased to 5,628 in fiscal 2009, according to reports from the Office of the Secretary. The number of denials of requests rose from 162 in fiscal 2006 to 664 in fiscal 2009, a troubling trend, said Cheh and Gray.

More than the volume, Nickles said, the scope of requests, many from the union representing the District's police officers, has overwhelmed agency lawyers. Superior Court judges, Nickles said, have become "increasingly unsympathetic" to the District's argument that limited resources are making it difficult to meet the legal deadlines.

The Fraternal Order of Police has at least 10 pending FOIA cases, said its chairman, Kristopher K. Baumann. The union has requested information from the D.C. police department about bonuses paid to nonunion employees, including Chief Cathy L. Lanier, and documents related to the motorcycle escorts that have accompanied the mayor on bike rides beyond the city's borders.

To Baumann, the administration has sought to "delay at every turn." Paul Fenn, an attorney who handles FOIA cases for the FOP, noted that the District's law is designed to reduce and minimize cost and time for the person requesting information. In contrast, he said, the District "doesn't respond at all or responds a year or two later, only after we file a lawsuit."

In testimony prepared for a hearing on Cheh's legislation, Nickles said the bill is unnecessary because the Fenty administration is creating an electronic system that will make it easier to submit and track FOIA requests. Nickles pointed to statistics that show the average response time to requests has been reduced from 16 days in fiscal 2007 to 11.5 days in fiscal 2009.

Nickles also took issue with a provision of the bill that Cheh's office is reviewing that would allow the new agency to impose fines. He said it would create an "unnecessarily punitive and adversarial approach that casts government agencies and their employees as villains to be punished and pursued."

In general, Nickles said, the administration is asking only for the extended response time provided to the federal government.

"It's easy for the council to say that we're looking for a way out. We're not," he said. "If it's good enough for [President] Obama and [U.S. Attorney General] Eric Holder, why isn't it good enough for Mayor Fenty and Peter Nickles?"

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