Government
DDOT FOIA officer wasting time stonewalling basic request
Councilmember Mary Cheh's investigation into the DC government's FOIA practices turned up countless examples where the Fenty administration seems to fight FOIA requests just for the sake of keeping information away from people.
Image from Kapungo on Flickr.
I've been caught in my own "Kafkaesque" FOIA experience after trying to request information about bus stop placement on Sherman Avenue. DDOT FOIA officer Diana Jordan has twice violated the legally mandated time limits, denied a request on a technicality, and has now asked for additional time to complete an extremely trivial request for a single email where she surely knows exactly what I want and could deliver it in thirty seconds.
Most bizarrely of all, the purpose of this investigation wasn't ever to criticize DDOT, but to investigate a specific decision, possibly worthy of criticism, from WMATA.
At a meeting of the Pedestrian Advisory Council a few months ago, DDOT's pedestrian coordinator, George Branyan, noted that DDOT and WMATA had had some disagreements over placement of bus stops on Sherman. DDOT wanted to move them to the far side of intersections, which is generally a good practice to limit delays at signals and waiting to merge into traffic.
WMATA, however, opposed the change, for what sounded like strange reasons, and someone had created a report recommending leaving the stops where they were. I wanted to know more and figure out whether they were right or wrong.
I asked Mr. Branyan if he could forward that to me. Since he and DDOT hadn't agreed with the conclusions, I assumed it wouldn't be such a problem. He asked superiors, who suggested I get it via FOIA, so I made the request on May 21st, asking for "the report which WMATA provided to DDOT concerning bus stop placement on Sherman Avenue as part of the recent design of the Sherman Avenue streetscape reconstruction."
I got an out of office reply from Diana Jordan, DDOT's FOIA officer, saying she was out of the office on May 20th. Since it wasn't May 20th any more, I assumed she had forgotten to update the message, and in any event would get the request when she next checked email.
DC law gives the agency 15 business days to respond, including the day they receive the message. That would mean they had to respond by June 10th. On June 9th, I emailed Ms. Jordan to inquire about the request, and she informed me she hadn't received it, but would process it "as of today." I wouldn't have interpreted "the date the request is actually received by the FOIA Officer" to exclude any time the officer wasn't aware of the request due to incompetence or negligence on her part, but perhaps Attorney General Peter Nickles would take that position.
On June 21st, Ms. Jordan sent me a form denial saying there were no records matching my request. In my original request, I had told her George Branyan probably had the documents, so I assume she spoke with him, and he would have known exactly what I was looking for.
But apparently my request had not been worded exactly right, giving her an opportunity to deny the request by narrowly construing the definition of the term "report." I found out that DDOT didn't have the actual report by WMATA on the issue, but that Mr. Branyan had discussed their conclusions and his objections in an email on August 28, 2009.
I therefore submitted a new FOIA request on June 24th for "any email messages sent by George Branyan on August 28, 2009 concerning the Sherman Avenue, NW streetscape project or concerning bus stops on Sherman Avenue, NW." And I asked Ms. Jordan to confirm she received it just to make sure she couldn't conveniently neglect to see it this time. She did.
15 working days from June 24th inclusive is July 15th, but I didn't hear back from Ms. Jordan until July 21st, at which time she informed me that "DDOT is extending the time period in which DDOT will provide you with the public records you have requested. This extension is based on the need to search for, collect and examine the amount of records in order to respond to your FOIA request. [D.C. Official Code] § 2-532(d)."
She now promises to respond by August 2nd. However, 10 more business days from June 24th is not August 2nd but July 29th. Math must not be a strong point at the DDOT legal department. Neither, apparently, is understanding of the law. According to the relevant section of the DC Code:
(d) In unusual circumstances, the time limit prescribed in subsection (c) of this section may be extended by written notice to the person making such request setting forth the reasons for extension and expected date for determination. Such extension shall not exceed 10 days (except Saturdays, Sundays, and legal public holidays). For purposes of this subsection, and only to the extent necessary for processing of the particular request, "unusual circumstances" are limited to:(1) The need to search for, collect, and appropriately examine a voluminous amount of separate and distinct records which are demanded in a single request; or(2) The need for consultation, which shall be conducted with all practicable speed, with another public body having a substantial interest in the determination of the request or among 2 or more components of a public body having substantial subject-matter interest therein.I only asked for all emails from a single person on a single day about a specified subject. I only asked for "all" emails because it was clear Ms. Jordan would not give me what I wanted if she could avoid it. Asking one person to look through their email from a single day for messages on a specific subject hardly seems to be "unusual circumstances," and the quantity of records involved hardly "voluminous" compared to most FOIA requests.
It's interesting that Ms. Jordan's explanation of the "reasons" for the extension quoted the section of the code but conveniently removed the words that made it not apply to my request. She doesn't even seem to be claiming that my very narrowly tailored request involves a voluminous amount of records; instead, she's simply rephrasing the law to allow them to get the extension for any quantity of records whatsoever.
I still don't know if I will get an answer by Thursday, the deadline from the actual law, or Monday, the deadline from Ms. Jordan's imaginary view of the law. I don't know if that answer will even contain the information I asked for, or if she'll find some legal excuse to deny the request again.
AG Peter Nickles has argued that the government can't handle all the FOIA request they are receiving and needs extra time. It seems that if they simply complied with the requests instead of spending so much time trying to resist them all, they could probably get through them faster. Ms. Jordan knows exactly what I want, and it's not even going to embarrass DDOT (at least, I don't think so).
She could have simply forwarded me the email in the first place, or at any time since, and been done with it. Instead, she's wasted a lot more of her time. Meanwhile, she's transformed my desire to write an article supporting DDOT in their disagreement with WMATA (assuming the email matched what I'd heard from Mr. Branyan) into an article criticizing DDOT and Mayor Fenty.
These particular bus stops weren't that big of a deal in any event, but the Fenty Administration's dogged resistance to following the FOIA laws is a much bigger deal, and now they've managed to get me as frustrated about this as the other witnesses at Mary Cheh's hearing. This can't be a good outcome for the Mayor.
David Alpert is the Founder and Editor-in-Chief of Greater Greater Washington. He has had a lifelong interest in great cities and great communities. He worked as a Product Manager for Google for six years and has lived in the Boston, San Francisco, and New York metro areas in addition to Washington, DC. He loves the area which is, in many ways, greater than those others, and wants to see it become even greater. Comments
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by Jamie on Jul 26, 2010 2:05 pm
Having said that, there should have been no reason for you to have to make a formal request. While there is a problem with the time wasted by denying a trivial request, the bigger problem is making you go through that process in the first place.
Mr. Brnayan should have provided it to you immediately upon request unless he thought it might be subject to an exception to disclosure. If he had a question in his mind about whether it was releasable, he should have directed it to the person responsible for making that decision. He is the real problem. He knows exactly what message you want, but is setting up hurdles to keep you from getting it. Ms. Jordan is simply a co-conspirator, an incompetent, or both.
Have you tried writing to Gabe Klein directly? If he has to waste time telling people who work for them to do their jobs, things might change.
by Stanton Park on Jul 26, 2010 2:19 pm
by David Alpert on Jul 26, 2010 2:23 pm
That being said, life would just be a lot easier if FOIA officers didn't think that their job was to prevent the public from receiving information. I've found that many FOIA officers will work closely with the requester to make sure they find the information the requester wants. In my experience, this has included officers telling me that while the specific record I wanted does not exist, I might instead be looking for another one that does. Or that while the agency would probably be obligated to charge me to get this information, they could give me an estimate for free (or just waive the fee anyway).
by Tim on Jul 26, 2010 2:41 pm
Seriously, there is a lot I like about Fenty's administration, but it seems to go out of its way to piss off people for stupid reasons.
by SJE on Jul 26, 2010 2:55 pm
Yes, there is.
"The average number of Freedom of Information Act requests wholly denied by the city has quadrupled under Fenty, while the average number of requests has stayed constant to previous administrations."
by Jamie on Jul 26, 2010 3:17 pm
Don't forget not to take pictures of the bus stops either! That could tip them off too...
by Teyo on Jul 26, 2010 3:23 pm
Every request would be published, and every answer would be published, including the requested documentation (as a pdf) if approved, or the reason for denial.
Governments should also be required to maintain stats on FOIA requests. Number of requests, approvals and denials as well as the average processing time.
Citizens should be encouraged to go through the process online. Written requests should also be scanned upon receipt and answered online. Written requests would get a letter, stating denial or approval and a link to the documentation.
Going online is a time saver for anyone, especially since the government could avoid duplicate work. Once a document is online, further requests could be handled extremely quickly. Furthermore, the government can't whine anymore about the cost of all the paper involved.
by Jasper on Jul 26, 2010 3:27 pm
by ket on Jul 26, 2010 3:32 pm
I am sure they must have some system they use to track the requests internally. Providing something that is accessible for end users to track their requests would certainly be a boon, though.
by Jamie on Jul 26, 2010 3:36 pm
Thanks Mr. Nickles!
by William on Jul 26, 2010 3:47 pm
@Jasper: I'm not too familiar with DC's FOIA, but in most states, FOIA requests and communications are themselves subject to FOIA.
by Tim on Jul 26, 2010 3:49 pm
I actually completely agree with his decision to do that, yes. If you are a public servant and you aren't serving the public, you deserve what you get.
by Nate on Jul 26, 2010 3:50 pm
by Nate on Jul 26, 2010 3:53 pm
And yes, the administration is, in fact, accountable for the action of its employees. But ultimately the point is not that one guy is having a bad time with one request, the point is 400% more requests are denied than under previous administration, and David's experience is likely representative of the difficulty in getting FOIA requests fulfilled that is obviously not unique to him.
by Jamie on Jul 26, 2010 4:02 pm
bummer....I was hoping if you got my name wrong I could pretend you weren't talking to me :)
My opinion is there is a huge difference between a public servant and a public official. I agree with you on officials, who are elected and in doing so parade their abilities to the public. On public servants though, I found this to be wholly inappropriate. They don't self-select to be the face of the organization and are generally caught up in an inefficient system.
I agree there are problems that need fixing, I just found this particular article to be too much.....
by ket on Jul 26, 2010 4:04 pm
by SJE on Jul 26, 2010 4:24 pm
Cool. Didn't know that. But that's still not a live interactive website.
@ Tim: in most states, FOIA requests and communications are themselves subject to FOIA.
You're missing the point. My point is that FOIA requests, processing and documents should end up in a publicly accessible, easily searchable database. So that I can search on "WMATA", and then see who requested FIOAs on WMATA, what they got, when they got it, and how fast they got it. I also want to be able to just click this Alpert guy's name and see what he requested.
The funny thing is that I'd bet that the press would be really annoyed with public FOIA, because everybody could see what they are working on.
The point that everybody seems to be missing is that FOIA hopefully would make governments tired of dealing with FOIA requests, and hence make them publish everything online anyway.
by Jasper on Jul 26, 2010 4:54 pm
I see your point, but you miss the fact that gathering information takes time and energy. That's why, even for electronic records, agencies sometimes charge for the information. The balance between charging people and not charging people is a matter of taxes, really. You could increase taxes and have it so all records are free for the 2% of the population who requests them, or you could charge a little for them. Similarly, if you want to post every single record online, you would have to raise taxes a lot.
by Tim on Jul 26, 2010 7:08 pm
by Fritz on Jul 26, 2010 8:09 pm
Plus the DC Government is still FULL of Diana Jordans... those who don't do their jobs and will never be fired... those who are holdovers from the Barry government-as-welfare years.
It really doesn't matter who is the mayor -- DC Govt will have too many of these people until they start retiring.
by mch on Jul 26, 2010 8:27 pm
Seriously, there are non-electronic records left? Fire the folks that generate them and replace them with folks younger than 85. As for the scanning of documents, see below:
@ Fritz: every single agency, board, and commission would need to pay for all the IT work, as well as personnel
No you don't. You just give Google a no-bid contract to figure out in conjunction with the Library of Congress and the National Archives how to make money out of making every single government document online available and profitable. If Google can scan every single book every written surely, they can do something that makes government documents searchable. As far as I am concerned, every government word-processor just gets a "publish" button. When pushed, a macro runs that makes a nice pdf out of the document, searches it for key words, and then puts it somewhere online. Similarly, all e-mail can be automatically published. A second button could be made for the rare case that a document needs redaction.
I reject the argument that an open and transparent is too expensive. A closed and opaque government is against everything that America and democracy in general stand for.
by Jasper on Jul 27, 2010 9:43 am
All that to say I think it's less about stonewalling than the perils of systematic micromanagement.
by MIss V on Jul 27, 2010 10:14 am
I think this blog post is indicative of why GGW is less and less relevant over time. It could be a professional place to share ideas, have a journalistic sensibility. Instead, whether in Mr. Alperts posts in particular, or the comments by angry ex administration employees, it's been reduced to name calling, personal agendas, and an overall unprofessional demeanor, if a blog can have one. This calling out of a low level employee publicly brings GGW to a new low.
I hope that someone starts a more serious version of this site, so that people like myself can continue to play a role in our communities positive growth.
by dontedc on Jul 27, 2010 10:37 am
There were commenters early on in the blog who seemed intent most of all not on fostering a professional sharing of ideas, as you say, but on making me and other posters feel bad with the seeming intent of trying to discourage us from posting.
Your comments are in the same vein. I do this because I care about good communities in DC. It's enjoyable when people disagree with my point of view and explain why I'm wrong. It's not when people just try to claim the site has gone downhill. Of course, that's the goal of many of these comments, to poison the well.
My readership numbers are doing fine, thank you, though I welcome input on how to make the site better. However, all you have posted as comments so far was that "Jamie is an idiot" (not appropriate) and then a bunch of pro-DDOT streetcar stuff in the last few weeks. If you have indeed been reading for a long time, thanks for starting to comment, but I would encourage you to try participating in the professional exchange of ideas.
by David Alpert on Jul 27, 2010 12:10 pm
Freedom of speech does not exist on any single site on the web. Freedom of speech means that you are free to voice your opinion on your blog. Not on someone else's blog. On someone else's blog, you have to follow their guidelines. If those include that you must dance in a pink speedo while typing, then you have a choice of following the rules, or leaving. End of story.
by Jasper on Jul 27, 2010 12:21 pm
She also sounds like a power mad infantile woman.
by James on Jul 27, 2010 1:40 pm
The response from the DDOT FOIA officer was that I received one report and the other studies did not exist. I doubled checked and I got the title slightly wrong on one because it was actually two separate studies by one consultant. That meant it was a new request, they never did find the last study. [a copy of which is probably still siting on a bookshelf in the Reeves Center].
So be VERY sure you have the EXACTLY worded title of the the document you are requesting...
by Ex DDOT on Jul 27, 2010 6:05 pm
Also, Ex DDOT has it right: you can't just request something vague like "all documents related to on-the-job injuries." It has to be specifically related to dates, persons, incidents, etc. Say, if you're trying to find a pattern of sexual harrassment, you have to specifically cite an individual and specific types of incidents.
by monkeyrotica on Jul 28, 2010 8:10 am
Thanks for your reponse. I thought my comment was constructive, but I understand your point of view it being your blog. It seems that allowing people to post really negative mindless comments like "This sounds like a bored employee to me if she has so much free time on her hands to think up ridiculous reasons to not do her job and get information to the public. She also sounds like a power mad infantile woman" is a little selctive in what you see as destructive vs. constructive. But as Jasper says, that is your right as a blogger, and it is my right to use these two feet and participate else where. Thanks for listening though and good luck.
by dontedc on Jul 28, 2010 9:11 am
Sorry to lose you as part of the community.
by David Alpert on Jul 28, 2010 9:38 am
by AC on Jul 30, 2010 12:29 pm
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