If you didn’t guess from my previous post on the matter, I have a bit of a love affair with the Freedom of Information Act. (This may have something to do with my own searches for information that should be public, if only anyone knew where to find it.)

One of my tweeps recently received a response to a FOIA appeal he filed, and he posted it online. It is an important decision because it holds that ANCs (Advisory Neighborhood Commissions) are subject to DC’s FOIA. I thought this was obvious, but now it exists in writing.

Jim pointed out, and I think rightly so, that there is still a problem with charging for documents that ought to be posted online and available without a request, but this is a start.

Lazy government workers

Government workers get a bad rap. We’re supposedly all lazy, unhelpful, want to give people the run-around, etc.

My experience has, for the most part, been the opposite. I confess personally to some minor irritation when someone from outside the government wants some sort of help from me, but that’s because they are generally on the phone and I hate talking on the phone. (Want something from me? Send me an email. Or ask via Twitter.)

But I’ve had two experiences recently that, while not implying laziness on the part of the other people involved, are worth sharing for their shake-my-head-ness.*

Remember, I’m trying to figure out the effective status of old Mayor’s Orders. (And doing so by organizing them by agency with additional information.) This is my job. But in some cases, I need to know what’s actually going on as a practical matter, and for that, I have to go to the agencies.

So. Experience one. There is a Mayor’s Order from 1984 regarding proceeds from vending machine sales.  Back in 2007 I heard a rumor that proceeds from the vending machines in the Wilson Building operated as described in this Order, with some going to the Mayor’s Office and some going to the Council, depending on which floor the vending machine was on. But I had no empirical proof that this is the case. So I emailed my contact in the Chief Financial Officer’s office to ask as a practical matter what happened with vending machine proceeds, citing the Mayor’s Order. Her response? OAG can tell you if the Order is still in effect. Well no, actually I’m the one who can tell you if the Order is still in effect but I can’t!**

Experience two. Rulemaking from 1981. Refers to the Department of Recreation (this is two name changes ago). I want to know if, again as a practical matter, the rulemaking is still in effect. (Not a DPR rulemaking. Another agency.) I send my question, and the response I get? “Attached are the sections of the DCMR that respond to your question.” No, I told you what sections of the DCMR I wanted to know about! I have them already.

So please, if I ever ask you for information, please do not just parrot back what I’ve told you I know.



*It might be that I don’t know how to ask questions.

**It isn’t out of the realm of possibility that an Order can be technically still effective but so far out of date that no one pays attention to it. There’s an Order that requires everything to be submitted to the Mayor on floppy disk. I doubt that anyone in the Mayor’s office even has a floppy drive on their computer.

Consistency, conshmistency

A brief follow up to yesterday’s post on committee names. Today’s step (one of today’s steps…) in the big project was to search the DC Code to find committees, boards, etc., that the Director of DPR sits on. (Yesterday involved going through Mayor’s Orders.)

Among them, two that are examples of the notable lack of consistency in naming things (I do not claim that I would do any better):

  • District of Columbia Bicycle Advisory Council
  • Pedestrian Advisory Council

Here we have only the inconsistency of “do we include DC in the name?” but there are other ways in which agencies, departments, boards, etc., are not named consistently. Some include “District of Columbia.” Some include “DC.” Some don’t include either. Some just include “District.” It’s enough to make a nit-picky critic like myself throw up her hands in despair.

The problem with personal email, a rant from my squeaky clean soapbox

Today’s scandal-du-jour (yes, that is somewhat redundant) involves government officials using private email accounts to conduct public business.  They must be doing it to avoid FOIA! They are terrible people! This must be stopped!

Done overreacting?


It is true that there is a problem with using personal email on work business. But it’s not because that makes the email un-FOIA-able. It’s that it highlights the fact that the law hasn’t caught up to technology. Or that because of technology the law is forgotten. Or something like that. Let me elaborate.

First a disclosure: I have been known to send work-related emails from my personal account. Almost exclusively, however, they are along the lines of “I’m running late but on my way!” and “red line troubles this morning, I’ll be there when I get there.”

Now. Why would someone send work-related email from their personal account, if not to evade the reach of FOIA? (Which it doesn’t. I’ll get there, I promise, in my characteristically rambly fashion.)

Plain and simple, it’s more convenient. I leave my gmail open on my home computer all the time. All. The. Time. I have a gmail app on my smartphone. And on my kindle. Tap the envelope, I’m in my account and I can send an email. Want to log in to my work account, since I’m not important enough (and thank goodness for this) to warrant a government-issued smartphone? I’ve got to go to the website, enter my login, complete with an honest-and-true backslash, which I don’t even know where to find on my smartphone’s keyboard (but which isn’t a problem on my computer), and then my password which because of OCTO’s guidelines has to have crazy symbols and such. (Again, not a problem on the computer, but a super-big pain on a touchscreen.) I actually tried this once on my phone and wasn’t able to get past the login screen. But that’s not enough. If I leave the window open too long, it times out.

None of this is insurmountable, but if I’m on the train or out somewhere and I have a work-related idea, I’m not going to go to the trouble of logging in to my work account. I’m going to tap on the gmail envelope and send my email that way.

Another reason I might use my personal email for work? Say I were the Mayor, God-forbid. I’m going to get a shit-ton of email. Excuse my language. How am I to know what’s really important? Sure, I have my assistant filtering my mail for me, but what about things that require instant response? I create a gmail account “mayor.god@gmail” and give that to my senior staff, to my cabinet, to the Council Chair. (Mayor Fenty had a email address that was intended to serve this purpose; I don’t know if Mayor Gray does.) I need this in order to weed out the emails that really should be handled by someone else. It’s a personal account, yes, but created for the sole purpose of conducting government business. I’d better not be using it to evade FOIA.

Suppose, however, that I do intend my use of my personal account as a way of evading FOIA. Here’s why it won’t work on a purely logistical level: people are stupid. Or more ethical. Either way, a work email address is going to find its way into the recipient list and the whole email chain will then be captured by an automated search pursuant to FOIA.

And now we get to why none of that matters, because personal email is subject to FOIA anyway.

People think that it isn’t. Why? Because if I, as a FOIA officer, get a request for someone’s emails containing the words “evade” or “FOIA” between the beginning of time and now, my first response is going to be to fill out a form on OCTO’s internal website with the search parameters, and OCTO will run a search. Bam, done. (Actually it takes a while, but meeting deadlines for FOIA is a subject for another day.) The problem is that we have been accustomed to all FOIA requests being for email (who writes memos anymore? Besides my boss, that is) and the search for responsive documents therefore being automated and not requiring effort by the person whose documents are being sought. (FOIA officer? Lots of work. Have to go through the CD of 9436 emails, 6117 of which are duplicates, to identify the emails that are privileged for one reason or another.)

This isn’t how it used to be. It used to be (not that I was ever a FOIA officer in olden days) that the FOIA officer would get a request, and he or she would have to take it to the relevant people and say “hey, I need your telephone notes from that phone call you had with the Mayor about evading FOIA, the memo that your intern wrote you about it, and the resulting report.” And that person would be responsible for looking in the file cabinet (remember those?) and digging out the documents and giving the FOIA officer a copy of them. Nowadays no one needs to go digging in files because that memo? Sent as an attachment to an email.

We’ve become complacent and reliant on technology to do our work for us. If we’re not including personal email in our FOIA searches, it isn’t because they aren’t subject to FOIA but because we’re not asking our officials to search their email.

So far, I’ve said all this without any reference to the DC Code. (As have other folks‘ posts.) But the Code is the most telling piece of this story.

D.C. Code § 2-531 says (my emphasis):

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.

A policy statement isn’t terribly binding and enforceable, though, so let’s look further.

D.C. Code § 2-532 is the meat of DC’s FOIA. (I’d say “FOIA act,” to make people happy, but that would be like “ATM machine,” and I just won’t do it.) The relevant paragraph is (a):

(a) Any person has a right to inspect, and at his or her discretion, to copy any public record of a public body, except as otherwise expressly provided by § 2-534, in accordance with reasonable rules that shall be issued by a public body after notice and comment, concerning the time and place of access.

What’s a “public record”? It is (D.C. Code § 2-502):

(18) The term “public record” includes all books, papers, maps, photographs, cards, tapes, recordings, vote data (including ballot-definition material, raw data, and ballot images), or other documentary materials, regardless of physical form or characteristics prepared, owned, used in the possession of, or retained by a public body. Public records include information stored in an electronic format.

(18A) The term “public body” means the Mayor, an agency, or the Council of the District of Columbia.

Personal email prepared by the Mayor? Sounds like a public record to me. Personal email prepared by an agency director? Less clear, true, but remember that we’re supposed to be construing this with a view to expanding access.

Is there a rule somewhere that says “personal email about work issues is subject to FOIA?” No. And there isn’t a rule that says “you may not use your personal email for work issues” either. But that doesn’t mean that we need one. It means that the training to FOIA officers should include a directive to ask request subjects to search their personal email or provide written assurance that they do not use their personal email for work matters. (The latter being a CYA for the FOIA officer.)

Snow dismissal

In light of the federal government’s new early dismissal policy for snow events (oh wow who did I just channel in calling them that?), which I haven’t read, I thought I would share a no-longer-in-effect Mayor’s Memorandum (rescinded in 2001) that seems to have made a good deal of sense.

MM 89-48

It’s Friday and that means…

DC Register day!

For a serious (with occasional snark) summary, you can always follow fellow nerd hgil on twitter. But if you want the best parts of the Register (i.e., Council’s Ceremonial Resolutions), you have to come here.

The best ACRs are those recognizing people on milestone birthdays or their retirement. Why are they the best? Because they have the greatest phrases. My favorite from today (because while I’d like to have a laugh about another honoree’s name, it really isn’t her fault) is this phrase:

“WHEREAS, after graduating from Eastern Senior High School and walking down its storied marble staircase…”

I ask: what does the school’s staircase have to do with this beloved teacher’s professional path?