FOIA Appeals Backlog Advisory Opinion

On June 29, 2022, the Director of Open Government issued Advisory Opinion # OOG-2022-004_AO, concerning the backlog of administrative appeals under D.C. FOIA.  (A requester whose request is denied may opt to appeal to the Mayor’s Office of Legal Counsel (MOLC), which is financially and procedurally simpler than bringing a judicial review into the D.C. Court system.)  The statute currently allots the MOLC only ten business days (from initial submission) to decide appeals, and at the end of Fiscal Year 2021, over 200 were overdue for disposition.

The Director first sets out a full description of the MOLC appellate process, including the (now-elapsed) tolling during the COVID-19 pandemic.

Next, the Director recognizes and quantifies the MOLC’s current backlog.  The Director concludes that “[m]ultiple causes contribute to this delay, and no one institution is entirely to blame.”  Appeals vary in complexity, and for many of them the MOLC does not receive an agency’s response until most or all of the ten-business-day review period has run.

As remedy, the Director “strongly recommend[s]” amending legislation to enlarge the currently “inadequate processing time.”  She also suggests correcting obsolete provisions (concerning the MOLC’s address and the methods of submission) in the Mayor’s Freedom of Information regulations.

Finally, the Director finds no justification for the MOLC’s no longer posting opinions on its website or in the District of Columbia Register (none has been published since November 1, 2019).  “The MOLC should ensure that, at the same time that an opinion is signed and released to the requester(s) and custodian(s), it affirmatively posts the opinion for public viewing.”